A/HRC/36/43
traveling to courtrooms, food and accommodation while the case is ongoing, and indirect
costs such as loss of earnings.
C.
Institutional and procedural barriers
1.
Legislative and policy barriers
Absence of legal protection
29.
The international legal framework prohibiting contemporary forms of slavery
imposes on States the obligation to adopt stand-alone domestic legislation criminalizing
such practices and to ensure that the penalties established are adequate and commensurate
with their gravity, beyond any provisions they may have in place criminalizing trafficking
in persons. However, to date, a significant number of States parties to the instruments
prohibiting contemporary forms of slavery have not yet put in place provisions
criminalizing forced labour, servitude and/or slavery as stand-alone offences at the
domestic level. 25 Furthermore, the legal definitions developed in some States are often
inadequate to enable enforcement officials to detect contemporary patterns of exploitation.
The absence of clear definitions or vagueness in the law constitute major impediments for
law enforcement officials to detect cases of contemporary forms of slavery and gather
appropriate evidence to prove an offence has occurred in order to identify and protect
victims.
30.
In order to guarantee to victims of contemporary forms of slavery adequate and
effective remedies, legislation prohibiting such practices should make available as remedies
not only criminal proceedings but also civil compensation. 26 The burden of proof to bring
criminal charges is set at a high threshold, which makes prosecution in some cases difficult.
Often, prosecution is not possible owing to a lack of evidence; therefore, that avenue is only
available in those few cases where the perpetrator has been convicted. Where there is no
specific civil remedy stipulated by law for contemporary forms of slavery, the only option
open to victims is existing civil actions, which are often inadequate to address the nature of
such forms of exploitation.
31.
Finally, the non-regulation of certain occupations or their exclusion from national
labour laws make workers, particularly women, vulnerable to contemporary forms of
slavery and constitutes an obstacle to their equal access to justice. In its general
recommendation No. 26 (2008) on women migrant workers, the Committee on the
Elimination of Discrimination Against Women, considering that domestic work is one of
the occupations in which migrant women dominate, stated that in countries of destination,
such occupations may be excluded from legal definitions of work, thereby depriving
women of a variety of legal protections.
Legislation and policies that limit victims’ access to justice
32.
In some countries, legislation and policies exist that facilitate contemporary forms of
slavery and create barriers for victims to access justice and remedy. The kafala system,
which is in place in a number of countries in the Middle East, creates a power imbalance in
the employment relationship and leaves workers with little bargaining power and
vulnerable to exploitation. Migrant workers who decide to flee from an abusive employer
are classified as irregular migrants and may be subjected to arrest, detention and
deportation or in some cases falsely accused by their employers of having committed a
crime. Furthermore, the criminalization of illegal entry to a country, illegal working or
overstaying the period of a visa, denies protection to victims of contemporary forms of
25
26
10
Submission to the Special Rapporteur by Jean Allain.
See working paper of the organization FLEX entitled “Access to Compensation for Victims of
Human Trafficking” (July 2016). Available from
www.labourexploitation.org/sites/default/files/publications/DWP-Compensation-F.pdf.
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