A/HRC/17/35
civil damages; (b) provisions allowing criminal courts to award criminal damages to be
paid by offenders to victims or to impose orders for compensation or restitution against
persons convicted of offences; or (c) provisions establishing dedicated funds or schemes
whereby victims can claim compensation from the State for injuries or damages.20 The
requirement under the Palermo Protocol to merely provide for the possibility to seek
compensation effectively creates a gap between the right to an effective remedy in law and
its implementation. A number of obstacles exist in practice for trafficked persons to obtain
compensation through either of these avenues, rendering such possibility simply illusory.
30.
The ensuing subsections discuss different methods through which trafficked persons
may seek compensation and associated challenges, while also highlighting some positive
developments.
(a)
Legal proceedings (criminal, civil or labour)
31.
Compensation through criminal proceedings may be awarded to victims as part of
the penalties imposed upon finding the accused persons guilty of the offence as charged.
While some successful cases have been reported, experience shows that the awarding of
compensation for trafficked persons through criminal proceedings is the exception rather
than the rule. In some countries, courts may not even consider compensation for trafficked
persons, as it is not common practice for victims of any crime to be awarded compensation
through criminal proceedings.21 The possibility of compensation through criminal
proceedings also hinges upon identification, arrest, trial and conviction of traffickers, which
remains difficult in trafficking cases.
32.
Trafficked persons may also pursue civil claims on the basis of loss caused by the
crime of trafficking pursuant to relevant national law. Although there are recent cases
which resulted in a substantive amount of compensation for trafficked persons,22 it is still
extremely difficult for them to receive compensation through civil proceedings. Some of
the difficulties associated with civil proceedings include the tendency to be timeconsuming, expensive and complicated. Other obstacles include complications in
calculating the basis of damages and the relative novelty of non-material damages such as
pain and suffering in some States.23
33.
Trafficked persons may also have options of claiming compensation based on labour
law violations, such as discrimination, breach of national minimum wage, and unreasonable
overtime. While there are some promising practices,24 the possibility for trafficked persons
to obtain compensation through labour proceedings may be restricted by a number of
eligibility criteria in practice. In some countries, labour proceedings are not available for
trafficked persons engaging in sexual services, as the provision of sexual services itself is
illegal and thus not a recognized form of employment to which labour protection applies.25
20
21
22
23
24
25
UNDOC, Legislative Guides, part two, chap. 2, para. 60.
See Project Victims in Europe, Implementation of the EU Framework Decision on the Standing of
Victims in the Criminal Proceedings in the Member States of the European Union (Lisbon, 2009).
See, for example, Jane Doe v. Alexander Lifshin and Armen Ben (Case No. CC2003/08), Tel Aviv
Yafo District Court (25 January 2010); AT v Dulghieru [2009] EWHC 225 (QB) (AT).
United States Agency for International Development (USAID), “Best practices for programming to
protect and assist victims of trafficking in Europe and Eurasia”, p. 32.
Anti-Slavery International, Opportunities and Obstacles: Ensuring Access to Compensation for
Trafficked Persons in the UK (2008), p. 20.
Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and
Human Rights (ODIHR), Compensation for Trafficked and Exploited Persons in the OSCE Region
(Warsaw, 2008), p. 27. See also Kylie v CCMA and Others 2010 (4) SA 383 (LAC).
9
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