A/HRC/17/35
and assist the victims of such trafficking, with full respect for their human rights” (art. 2) to
imply obligations of States parties to implement these measures to the maximum of their
available resources.
26.
While many States have made positive progress in establishing and providing
services to support recovery of trafficked persons, a number of challenges remain in
ensuring that these services are provided in a manner that is non-discriminatory and
enhances the human rights of trafficked persons. In some States, recovery services are only
available to certain categories of trafficked persons at the exclusion of others, such as men
and children who are internally trafficked. It appears that the distribution of services often
seems to be skewed towards foreign adult women trafficked for sexual exploitation.
Furthermore, many States make access to recovery services conditional upon the capacity
or willingness of trafficked persons to cooperate with law enforcement authorities, which is
contrary to “the fundamental tenet of the human rights approach to trafficking”.17
27.
A related concern is the absence in many States of a “reflection and recovery
period”, during which trafficked persons may escape the influence of traffickers, recover
psychological stability to consider their options, and make an informed decision as to
whether to cooperate with law enforcement authorities without the risk of being removed
from the country. This period is not only an integral element of recovery, but also the
fundamental first step in seeking other forms of reparations, such as compensation. The
security and well-being of trafficked persons, which may be facilitated by the reflection and
recovery period, is an essential prerequisite for trafficked persons in seeking compensation.
Given the high degree of trauma experienced by trafficked persons, empirical evidence
suggests that a minimum period of 90 days is required in order to ensure that the cognitive
functioning of trafficked persons improves to a level at which they are able to make
informed and thoughtful decisions about their safety and well-being, and provide more
reliable information about trafficking-related events.18 This issue of a “reflection and
recovery period” will be explored further in section D, subsection 3.
3.
Compensation
28.
Compensation should be provided for economic assessable damage to the extent that
such damage cannot be made good by restitution. It may be provided as payment for a wide
range of injury, loss or damage caused by the offender, including, for example: costs of
medical, physical, psychological or psychiatric treatment required by the victim; lost
income and due wages; legal fees and other similar costs; and payment for non-material
damages, resulting from moral, physical or psychological injury, emotional distress, pain
and suffering.19
29.
Reparation in the form of compensation appears to be most widely recognized
among States in the context of trafficking in persons. The Palermo Protocol specifically
requires States Parties to ensure that victims of trafficking have “the possibility of obtaining
compensation for damage suffered” (art. 6, para. 6). Notably, however, the provision under
the Palermo Protocol falls short of requiring States Parties to ensure that trafficked persons
actually receive compensation. The obligation of States under the Palermo Protocol is
discharged if States establish: (a) provisions allowing victims to sue offenders or others for
17
18
19
8
Recommended Principles and Guidelines on Human Rights and Human Trafficking: Commentary
(United Nations publication, Sales No. E.10.XIV.1), p. 142.
The London School of Hygiene & Tropical Medicine, “Stolen smiles: a summary report on the
physical and psychological consequences of women and adolescents trafficked in Europe” (London,
2006), p. 3.
UNODC Model Law on Trafficking in Persons, art. 28, para. 3.
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