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