The Bangkok Rules
47
institutional confinement for the treatment of such mothers. The Council of Europe, Parliamentary Assembly
Recommendation 1469 (2000), on Mothers and babies in prison, adopted on 30 June 2000, also recommended
the development and use of community-based penalties for mothers of young children and the avoidance of the
use of prison custody. Most recently, in its Resolution 10/2, dated 25 March 2009, entitled “Human rights in
the administration of justice, in particular juvenile justice”, the Human Rights Council emphasized that, when
sentencing or deciding on pretrial measures for a pregnant woman or a child’s sole or primary carer, priority
should be given to non-custodial measures, bearing in mind the gravity of the offence and after taking into
account the best interest of the child.
Taking into account the provisions of the Tokyo Rules 3.3, which provide that “[d]iscretion by the judicial
or other competent independent authority shall be exercised at all stages of the proceedings by ensuring full
accountability and only in accordance with the rule of law”, Member States are urged to take legislative
measures to implement the measures referred to in this rule, as necessary.
Rule 65
This Rule is based on the principle expressed in Article 37 (b) of the Convention on the Rights of the Child
and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing
Rules). All children, and female children in particular, are extremely vulnerable in detention. Imprisonment is
likely to have a very harmful impact on children’s psychological and intellectual development, which is why
international standards are unanimous in calling for the reduction of the imprisonment of children in conflict
with the law to the absolute minimum.
Rules 66
Foreigners are vastly overrepresented in the criminal justice system of many countries, particularly those with
a large migrant labour force. The rise in their numbers can partly be attributed to the increasingly punitive
measures being adopted against “aliens” in many countries. Trafficked women find themselves behind bars,
having been convicted of crimes against public morality, prostitution or breaking immigration rules, although
they themselves are the victims of poverty, false promises, coercion and exploitation.
Trafficked persons are sometimes treated as criminals rather than as victims, whether in States of destination,
transit or origin. In States of destination, they may be prosecuted and detained because of irregular migration
or labour status. Alternatively, immigration authorities may simply deport them to the State of origin if their
immigration status is irregular. Trafficked persons returning to their State of origin may also be subjected to
prosecution for using false documents, having left the State illegally, or for having worked in the sex industry.
Criminalization limits the trafficking victims’ access to justice and protection and decreases the likelihood
that they will report their victimization to the authorities. Given the victims’ existing fears for their personal
safety and of reprisals by the traffickers, the added fear of prosecution and punishment can only further prevent
victims from seeking protection, assistance and justice.72
UNODC , as the custodian of the UN standards and norms relating to criminal justice and crime prevention,
and based on its mandate to operationalise such standards and norms, should advocate for the ratification of
these Conventions.
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72
Toolkit to Combat Trafficking in Persons, Global Programme Against Trafficking in Human Beings, UNODC, 2006, p. 103.
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