A/HRC/17/35
recovery can be used for the purpose of criminal investigation, as they are more likely to
provide accurate and reliable information once they regain their psychological stability.
E.
Special consideration for trafficked children
53.
While the elements of the right to an effective remedy equally apply to trafficked
children, responses vis-à-vis trafficked children warrant special consideration, having
regard to “the particular physical, psychological and psychosocial harm suffered by
trafficked children and their increased vulnerability to exploitation”, 47 as well as their lack
of full legal standing. Article 6, paragraph 4, of the Palermo Protocol also recognizes that in
providing protection and assistance to trafficked persons, “the age, gender and special
needs of victims of trafficking in persons, in particular the special needs of children” should
be taken into account.
54.
At a minimum, the realization of the right to an effective remedy for trafficked
children should be guided by the general principles of the Convention on the Rights of the
Child. In particular, the principle that the best interests of the child shall be a primary
consideration in all actions concerning children should be placed at the centre of all efforts
to provide remedies for trafficked children. This principle entails respect for children’s
rights and freedoms accorded to them under international human rights law, as well as for
the children’s views on their best interests with due weight given in accordance with the
age and maturity of the children concerned.
55.
The best interests of the child need to be carefully considered before deciding the
course of action for trafficked children, particularly where it involves criminal proceedings.
In many cases, the child’s participation in criminal proceedings may not be in his or her
best interest where, for example, he or she is interviewed repeatedly, required to provide
testimony in court in the presence of the traffickers, subjected to hostile questioning by the
traffickers or their legal representative, or effective witness protection is not in place to
guarantee the privacy and security of the child and his or her family members. Thus, in
determining whether a trafficked child should be involved in criminal proceedings, the
benefits of such involvement should be carefully weighed against any negative
consequences in order to ensure that it is indeed in the best interests of the particular child.
56.
From States’ perspectives, these concerns translate into the obligation to implement
child-sensitive court procedures which effectively protect the rights and interests of
children. In particular, the Legislative Guide to the Palermo Protocol unequivocally stresses
the importance of avoiding direct contact between the child victim and the suspected
offender, and according child witnesses special protection measures to ensure their safety.48
Thus, States should, for instance, allow procedural measures to obtain the child’s testimony
without the presence of the trafficker, such as allowing video-recording of testimony,
examination via videoconference, or written statements in lieu of in-court testimony. Childsensitive court procedures may also require adequate training of relevant law enforcement
officials, such as police officers, lawyers, prosecutors and judges, in the rights of trafficked
children. In this regard, it has been noted that there are benefits in forming a multistakeholder group to allow law enforcement officials to work together with social workers
and other service providers responsible for the care of exploited children, including
47
48
Recommended Principles and Guidelines on Human Rights and Human Trafficking, guideline 8,
p. 10.
UNODC, Legislative Guides (note 16 above), part two, para. 65 (b).
15
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