A/HRC/26/37
B.
Rights of victims to remedies
47.
From the inception of the mandate, both the Special Rapporteurs have clearly
affirmed the right of victims of trafficking to access remedies for the harms committed
against them. In country reports, both mandate holders have consistently examined the
extent to which this right is protected by law and realized in practice. This has revealed that
trafficked persons are frequently left without remedies or the support necessary to access
them, a situation that exacerbates the risk of further human rights violations including
through retrafficking. It was on the basis of insights gained through her country visits and
information received through other activities, including her assessment of regional response
mechanisms, that the Special Rapporteur decided to make effective remedies for victims the
subject of more systematic and detailed attention. To that end she organized an expert
consultation in 2010 that was followed by an online discussion forum and an interactive
dialogue held during the seventeenth session of the Human Rights Council in the context of
her thematic reports on the subject (A/HRC/17/35 and A/66/28). Regional consultations
were held during 2013 and early 2014 to disseminate, discuss and refine a set of draft basic
principles on the right to an effective remedy for trafficked persons.
48.
Applicable legal framework. One of the main purposes of the work of the Special
Rapporteur on effective remedies for victims has been to help clarify the relevant legal
framework and by so doing, to provide guidance to practitioners and help address the
substantial gap between the provisions of international law in this area and what happens in
practice. In her report to the General Assembly on the issue, the Special Rapporteur
referred to the established legal doctrine requiring a State to remedy a wrong where an act
or omission is attributable to that State and constitutes a breach of its obligations (A/66/283,
para. 12). While States are not usually the direct source of trafficking-related harm, they
may not absolve themselves of legal responsibility on this basis. The obligation to provide
remedies – or at least access to remedies – to victims of trafficking is set out in a number of
relevant instruments11 and has been widely recognized by United Nations bodies and
regional courts.12 Its essence is captured in principle 1 of the draft basic principles on the
right to an effective remedy for trafficked persons: “Trafficked persons as victims of human
rights violations have the right to an effective remedy for harms committed against them.”
49.
Substantive components of the right to a remedy. The Special Rapporteur has
recognized four substantive components of the right to a remedy that are applicable in cases
of trafficking in persons. They are captured in principle 4 of her draft basic principles: “In
substance, trafficked persons should be provided with adequate reparations for the harms
suffered, which may include restitution, compensation, recovery, satisfaction and
guarantees of non-repetition.” Compensation is of critical importance to victims of
trafficking who are likely to have suffered significant harm and lost valuable opportunities.
It can be awarded to victims through legal proceedings that may be civil or criminal. It can
also be delivered through State-administered compensation funds or through non-judicial
methods, such as those operating between employers and employees in respect of wage
disputes and work-related injury compensation.
50.
Procedural components of the right to a remedy. The procedural obligations may be
conceived as the range of measures needed to guarantee access to an effective remedy,
including access to information, legal assistance and regularization of residency status,
11
12
See the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children, art. 6 (6) and the Council of Europe Convention on Action against Trafficking in Human
Beings, art. 15.
See Rantsev v. Cyprus and Russia, European Court of Human Rights, application No. 2595/04,
judgment of 7 January 2010.
13
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