A/HRC/26/18
main obstacles identified included poor implementation and interpretation of existing
national legal frameworks, limited resources, capacities and infrastructure dedicated to the
issue, and also gaps in identification and the tendency to criminalize victims, coupled with
restrictive immigration policies.
15.
During discussions on the substantive components of the right to an effective
remedy, Member States and stakeholders highlighted the importance of a victim-centred
and human rights-based approach, as well as the need to develop holistic, comprehensive
and integrated services for victims of trafficking. Discussions on compensation triggered
questions on and requests for a better conceptual definition of compensation and
identification of channels through which victims can obtain compensation, delineating the
responsibilities of both State and non-State actors while taking the specificities of judicial
systems (common law as against the civil law system) into consideration.
16.
With regard to the procedural components of the right to a remedy, participants
highlighted the fact that citizenship and residency status should not be determining factors
in the provision of assistance, and that States must move from a national security approach
to a human rights- and victim-centred perspective to combat trafficking. Greater security
and protection must be systematically offered to victims of trafficking so that they may
have access to redress and recovery, through non-criminalization, the granting of
unconditional assistance, the provision of temporary residence status and subsistence
support. Some also stressed that the realization of procedural preconditions depended
heavily on the capacity-building and training of all relevant stakeholders, including law
enforcements agents and legal practitioners, as well as social services providers and civil
society partners.
17.
Another common theme that emerged during the consultations was the importance
of cooperation and partnership at both the national and international levels with regard to
mutual legal assistance and victim care. It was stressed that, at the national level,
cooperation between Governments and non-governmental organizations was vital in the
identification of victims and the implementation of recovery, rehabilitation and
reintegration measures. At the same time, cross-border cooperation between States was also
identified as necessary to ensure redress through mutual legal assistance in investigations
and prosecutions, safe repatriation, guarantees of non-repetition and compensation of
victims by means of joint efforts in tackling the root causes of vulnerability in countries of
origin.
18.
Member States referred to the ongoing challenges in prosecuting trafficking offences
and the high degree of impunity for such violations, and requested guidance in reconciling
the right to an effective remedy, including unconditional support for victims, with the
effective prosecution of traffickers, which is possible only with the cooperation of victims.
V.
Substantive components of the right to an effective remedy
A.
Restitution and recovery (rehabilitation)
19.
The aim of restitution was outlined at different consultations; it was suggested that
the concept of the“best interest of the trafficked person” should be clearly defined to avoid
different interpretations.
20.
The non-obligatory nature of recovery in the Palermo Protocol was identified as an
obstacle to the effective realization of the right to restitution and recovery, since it generally
uses exhortative rather than prescriptive language with regard to provisions on victims’
rights.
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