CONCLUSIONS ON THE DETENTION OF VICTIMS In evaluating the lawfulness or otherwise of victim detention it is important to draw a distinction between routine detention, applied generally and as a matter of policy, law or practice, and case-by-case detention. The above analysis confirms that the routine detention of victims or suspected victims of trafficking in public detention facilities or public/private shelters violates a number of fundamental principles of international law and is therefore to be considered, prima facie, unlawful. In some circumstances, the routine detention of victims of trafficking violates the right to freedom of movement, and in most circumstances, if not all, it violates the prohibitions on the unlawful deprivation of liberty and arbitrary detention. International law prohibits, absolutely, the discriminatory detention of victims, including detention that is linked to the sex of the victim. The practice of routine detention of women and girls in shelter facilities, for example, is clearly discriminatory and therefore unlawful. Routine detention of trafficked children is also directly contrary to international law and cannot be justified under any circumstances. A State may, on a case-by-case basis, be able to defend victim detention successfully with reference, for example, to criminal justice imperatives, public order requirements or victim safety needs. The internationally accepted principles of necessity, legality, and proportionality should be used to assess the legality of any such claim. The application of these principles would, most likely, support a claim of lawful detention only in relation to a situation where detention is administered as a last resort and in response to credible and specific threats to an individual victim’s safety. Even where such basic tests are satisfied, however, a range of protections should be in place to ensure that the rights of the detained person are respected and protected. Such measures would include, but are not be limited to, judicial oversight of the situation to determine its ongoing legality and necessity, and an enforceable right to challenge the fact of detention. International law requires special justifications and protections in all cases of detention of children. The detaining authority must be able to demonstrate that the detention is in the child’s best interests. The detaining authority must also be able to demonstrate, in relation to each and every case, that there is no reasonable option available to it other than the detention of the child. Specific protections, including judicial or administrative oversight and the right of challenge, must be upheld in all situations where the fact of detention can be legally justified. Failure by the State to act to prevent unlawful victim detention by public or private agencies invokes the international legal responsibility of that State (see the discussion under Principles 2, 6 and 13 and related Guidelines). Victims may be eligible for remedies, including compensation, for this unlawful detention. The matter of remedies is considered in more detail below under Principle 17 and related Guidelines. 7.5. A NOTE ON THE RIGHT TO CONSULAR ACCESS AND SUPPORT Guideline 6.3 requests States and others to consider “ensuring that trafficked persons are informed of their right of access to diplomatic and consular representatives from their State of nationality”. It recommends that staff working in consulates and embassies should be given appropriate training in responding to requests for information and assistance from trafficked persons. As noted throughout this section, the criminalization of victims of trafficking, including for status-related offences, is still widespread in every part of the world. The right COMMENTARY 139