A/HRC/44/45 27. The right to protection includes ensuring victims’ safety and that of their families from harm, intimidation and retaliation, and protection from secondary and repeat victimization 31 during the investigation process, criminal proceedings and subsequent period. The right to privacy is inextricably linked to States’ obligations to protect victims from further harm.32 28. Particular attention must be paid to child victims of trafficking: their best interests must be considered paramount at all times, including in criminal proceedings. 33 Measures to protect child victims during criminal proceedings can include recording their interviews and using these interviews in criminal proceedings 34 and appointing a representative. 35 Alongside the right to be protected, children have the right to effectively participate in proceedings,36 to be heard37 and to be kept informed. 29. A key factor inhibiting the rights of trafficked persons as victims of crime is that detention measures against trafficked persons are still common practice in various forms, occurring even if they have been correctly identified as victims, as a result of their engagement in illicit activities. Trafficking victims may violate immigration laws, may be charged with prostitution where prostitution/sex work is illegal or may be involved with illicit drug production or violent crime as a result of their trafficked situation. The nonpunishment principle serves to “ensure that victims are not punished for offences committed in the course, or as a consequence, of being trafficked”.38 While the principle does not confer blanket immunity for non-status-related crimes, 39 it recognizes that trafficking victims “have no, or limited, free will because of the degree of control exercised over them” by their traffickers. 40 Traffickers often deliberately exploit their victims by exposing them to criminal liability to manipulate and maintain control over them. 41 Protecting victims from prosecution for offences that they may commit as a direct consequence of their situation as trafficked persons, therefore, is not only an essential element of a human rights approach to trafficking in persons, but may combat such trafficking generally by encouraging victims to come forward. 30. Normatively, the key anti-trafficking instrument – the Trafficking in Persons Protocol – does not expressly reference the non-punishment principle.42 However, several binding international and regional instruments contain the non-punishment principle, 31 32 33 34 35 36 37 38 39 40 41 42 8 19 (2), which states that information should be provided in a language that the victim understands. If the victim cannot read, he or she should be briefed by the competent authority. Directive 2012/29/EU, art. 18. See also Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which states that the State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her retraumatization in the course of legal and administrative procedures designed to provide justice and reparation (para. 10). Recommended Principles and Guidelines on Human Rights and Human Trafficking – Commentary (United Nations publication, Sales No. E.10.XIV.1), p. 146. Recommended Principles and Guidelines on Human Rights and Human Trafficking, principle 10. Directive 2012/29/EU, art. 24 (1) (a). Ibid., art. 24 (1) (b). Convention on the Rights of the Child, art. 40 (2) (b) (iv); Committee on the Rights of the Child, general comment No. 24 (2019) on children’s rights in the child justice system, para. 46. Convention on the Rights of the Child, art. 12; Committee on the Rights of the Child, general comment No. 24, paras. 44–45. Organization for Cooperation and Security in Europe, Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings, “Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking” (Vienna, 2013), para. 10. Recommended Principles and Guidelines on Human Rights and Human Trafficking – Commentary, p. 133 (stating that non-punishment principle is not intended to confer blanket immunity on trafficked victims who may commit other non-status-related crimes with the requisite level of criminal intent). Organization for Cooperation and Security in Europe, “Policy and legislative recommendations”, para. 5. Ibid., para. 1. In addition, the Convention itself does not reference the non-punishment principle.