chapter 8 Vctm assstance 385 Tool 8.3 Protecton, assstance and human rghts Overvew Ths tool dscusses the human rghts consderatons whch must be borne n mnd n protectng and assstng vctms of traffckng. Recommended Prncples and Gudelnes on Human Rghts and Human Traffckng (E/2002/68/Add.1) (Unted Natons Hgh Commssoner for Human Rghts) The Recommended Prncples and Gudelnes on Human Rghts and Human Traffckng developed by the Unted Natons Hgh Commssoner for Human Rghts offer mportant gudance for ant-traffckng efforts. The gudelne of key relevance to vctm protecton and assstance s provded below. Gudelne 6 Protecton and support for traffcked persons The traffckng cycle cannot be broken wthout attenton to the rghts and needs of those who have been traffcked. Approprate protecton and support should be extended to all traffcked persons wthout dscrmnaton. States and, where applcable, ntergovernmental and non-governmental organzatons, should consder: 1. Ensurng, n cooperaton wth non-governmental organzatons, that safe and adequate shelter that meets the needs of traffcked persons s made avalable. The provson of such shelter should not be made contngent on the wllngness of the vctms to gve evdence n crmnal proceedngs. Traffcked persons should not be held n mmgraton detenton centres, other detenton facltes or vagrant houses. 2. Ensurng, n partnershp wth non-governmental organzatons, that traffcked persons are gven access to prmary health care and counsellng. Traffcked persons should not be requred to accept any such support and assstance and they should not be subject to mandatory testng for dseases, ncludng HIV/AIDS. 3. Ensurng that traffcked persons are nformed of ther rght of access to dplomatc and consular representatves from ther State of natonalty. Staff workng n embasses and consulates should be provded wth approprate tranng n respondng to requests for nformaton and assstance from traffcked persons. These provsons would not apply to traffcked asylum-seekers. 4. Ensurng that legal proceedngs n whch traffcked persons are nvolved are not prejudcal to ther rghts, dgnty or physcal or psychologcal well-beng.
386 Toolkt to Combat Traffckng n Persons 5. Provdng traffcked persons wth legal and other assstance n relaton to any crmnal, cvl or other actons aganst traffckers/exploters. Vctms should be provded wth nformaton n a language that they understand. 6. Ensurng that traffcked persons are effectvely protected from harm, threats or ntmdaton by traffckers and assocated persons. To ths end, there should be no publc dsclosure of the dentty of traffckng vctms and ther prvacy should be respected and protected to the extent possble, whle takng nto account the rght of any accused person to a far tral. Traffcked persons should be gven full warnng, n advance, of the dffcultes nherent n protectng denttes and should not be gven false or unrealstc expectatons regardng the capactes of law enforcement agences n ths regard. 7. Ensurng the safe and, where possble, voluntary return of traffcked persons and explorng the opton of resdency n the country of destnaton or thrd-country resettlement n specfc crcumstances (e.g. to prevent reprsals or n cases where retraffckng s consdered lkely). 8. In partnershp wth non-governmental organzatons, ensurng that traffcked persons who do return to ther country of orgn are provded wth the assstance and support necessary to ensure ther well-beng, facltate ther socal ntegraton and prevent retraffckng. Measures should be taken to ensure the provson of approprate physcal and psychologcal health care, housng and educatonal and employment servces for returned traffckng vctms. The gudelne of key relevance to protectng the human rghts of chld vctms of traffckng s provded below. (See also Tool 8.2.) Gudelne 8 Specal measures for the protecton and support of chld vctms of traffckng The partcular physcal, psychologcal and psychosocal harm suffered by traffcked chldren and ther ncreased vulnerablty to explotaton requre that they be dealt wth separately from adult traffcked persons n terms of laws, polces, programmes and nterventons. The best nterests of the chld must be a prmary consderaton n all actons concernng traffcked chldren, whether undertaken by publc or prvate socal welfare nsttutons, courts of law, admnstratve authortes or legslatve bodes. Chld vctms of traffckng should be provded wth approprate assstance and protecton and full account should be taken of ther specal rghts and needs. States and, where applcable, ntergovernmental and non-governmental organzatons, should consder, n addton to the measures outlned under Gudelne 6: 1. Ensurng that defntons of traffckng n chldren n both law and polcy reflect ther need for specal safeguards and care, ncludng approprate legal protecton. In partcular, and n accordance wth the Palermo Protocol, evdence of decepton, force, coercon etc. should not form part of the defnton of traffckng where the person nvolved s a chld. 2. Ensurng that procedures are n place for the rapd dentfcaton of chld vctms of traffckng.
chapter 8 Vctm assstance 387 3. Ensurng that chldren who are vctms of traffckng are not subjected to crmnal procedures or sanctons for offences related to ther stuaton as traffcked persons. 4. In cases where chldren are not accompaned by relatves or guardans, takng steps to dentfy and locate famly members. Followng a rsk assessment and consultaton wth the chld, measures should be taken to facltate the reunon of traffcked chldren wth ther famles where ths s deemed to be n ther best nterest. 5. In stuatons where the safe return of the chld to hs or her famly s not possble, or where such return would not be n the chld s best nterests, establshng adequate care arrangements that respect the rghts and dgnty of the traffcked chld. 6. In both the stuatons referred to n the two paragraphs above, ensurng that a chld who s capable of formng hs or her own vews enjoys the rght to express those vews freely n all matters affectng hm or her, n partcular concernng decsons about hs or her possble return to the famly, the vews of the chld beng gven due weght n accordance wth hs or her age and maturty. 7. Adoptng specalzed polces and programmes to protect and support chldren who have been vctms of traffckng. Chldren should be provded wth approprate physcal, psychosocal, legal, educatonal, housng and health-care assstance. 8. Adoptng measures necessary to protect the rghts and nterests of traffcked chldren at all stages of crmnal proceedngs aganst alleged offenders and durng procedures for obtanng compensaton. 9. Protectng, as approprate, the prvacy and dentty of chld vctms and takng measures to avod the dssemnaton of nformaton that could lead to ther dentfcaton. 10. Takng measures to ensure adequate and approprate tranng, n partcular legal and psychologcal tranng, for persons workng wth chld vctms of traffckng. The Recommended Prncples and Gudelnes on Human Rghts and Human Traffckng are avalable at: www.unhcr.bg/other/r_p_g_hr_ht_en.pdf Gudelnes on the Protecton of Chld Vctms of Traffckng (Unted Natons Chldren s Fund) At all stages of the process of assstng chld vctms of traffckng, from dentfcaton through to rentegraton, the followng general prncples must be taken nto account by all actors nvolved wth the chld:
388 Toolkt to Combat Traffckng n Persons Rghts of the chld Human rghts standards, n partcular the prncples of protecton and respect for chldren s rghts as set out n the Conventon on the Rghts of the Chld, must gude actons to assst chld vctms. The rghts stpulated n the Conventon are avalable to all chldren, regardless of ther natonalty, mmgraton status or statelessness. The nvolvement of chld vctms n crmnal actvtes does not undermne ther status as both a chld and a vctm, or ther related rghts to specal protecton. States are requred both to refran from nfrngng on chldren s rghts and to take postve measures to ensure ther enjoyment of these rghts wthout dscrmnaton. Best nterests of the chld In all actons concernng chld vctms, the best nterests of the chld shall be a prmary consderaton. Rght to non-dscrmnaton Chld vctms have the rght to protecton, whether they are non-natonals, natonals or resdents of the country n whch they fnd themselves. They must be consdered as chldren frst and foremost. Every chld shall have, wthout dscrmnaton of any knd as to race, sex, language, relgon, ethnc or socal orgn, brth or other status, ncludng mmgraton status, the rght to such measures of protecton as are requred by hs or her status as a mnor. Respect for the vews of the chld A chld vctm capable of formng hs or her vews has the rght to express those vews freely n all matters affectng hm or her. Respect for the vews of the chld wll be mantaned n relaton to the legal process, nterm care and protecton, dentfcaton and mplementaton of a durable soluton, partcularly n decsons concernng the chld s possble return to the famly, country or regon of orgn. The vew of the chld vctm shall be sought and gven due weght n accordance wth hs or her age and maturty. The chld shall be provded the opportunty to be heard n any judcal and admnstratve proceedngs affectng hm or her, ether drectly or through a representatve or approprate body n a manner consstent wth the procedural rules of natonal law. Rght to nformaton Chld vctms shall be provded wth accessble nformaton regardng ther stuaton and ther rghts, ncludng protecton mechansms, other avalable servces and the processes of famly reunfcaton and/or repatraton. Informaton shall be provded n a language that the chld s able to understand. Sutable nterpreters shall be provded whenever a chld s questoned or ntervewed, or whenever he or she requests t.
chapter 8 Vctm assstance 389 Rght to confdentalty All necessary measures shall be taken to protect the prvacy and dentty of chld vctms to ensure the safety and securty of the vctm and hs or her famly. Rght to be protected Chld vctms are enttled to specal protecton measures, both as vctms and as chldren, n accordance wth ther specfc rghts and needs. The State shall protect and assst chld vctms and ensure ther safety. Defnton of roles and steps States should take postve acton to combat traffckng n chldren and to protect and assst traffcked chldren. Coordnaton/cooperaton Internatonal, multlateral and blateral cooperaton between countres s mportant. Complementarty and cooperaton among all organzatons and nsttutons concerned s crtcal for the care and protecton of chld vctms. Cooperaton between Government and non-governmental sectors should be based on clear delneaton of responsblty and transparency, wth clearly defned roles. All relevant mnstres and Government bodes nvolved n the protecton of chld vctms shall adopt polces and procedures whch favour nformaton-sharng and networkng between agences and ndvduals workng wth chld vctms. Source: These general prncples are contaned n the UNICEF Gudelnes on the Protecton of Chld Vctms of Traffckng avalable at: www.uncef.org/ceecs/0610-uncef_vctms_gudelnes_en.pdf Recommended resources Human Rghts n Practce: a Gude to Assst Traffcked Women and Chldren Ths 2001 gude s the result of collaboraton between a range of ant-traffckng actvsts n South-East Asa. It s ntended to promote the provson of drect assstance to traffcked vctms, wthn a human rghts framework. The manual s avalable n Bahasa Indonesa, Burmese, Chnese, Khmer, Lao, Tha and Vetnamese. Ths publcaton s avalable n Burmese at: www.gaatw.net/ndex.php?opton=com_content&task=blogcategory &d=9&itemd=78
390 Toolkt to Combat Traffckng n Persons Human Rghts Standards for the Treatment of Traffcked Persons Ths collaton of nternatonal human rghts nstruments of value n the protecton of traffcked vctms, compled n 1999, s avalable n Englsh, French, German, Russan, Spansh and Tha. For more nformaton about ths publcaton, vst: www.gaatw.net/ndex.php?opton=com_content&task=blogcategory &d=9&itemd=78 Collateral Damage: the Impact of Ant-Traffckng Measures on Human Rghts around the World In September 2007, GAATW ssued a report enttled Collateral Damage: the Impact of Ant- Traffckng Measures on Human Rghts around the World. The report explores the experence of Australa, Bosna and Herzegovna, Brazl, Inda, Ngera, Thaland, the Unted Kngdom and the Unted States and analyses the mpact of ther respectve ant-traffckng polces and practces on the people lvng, workng and mgratng wthn and across borders. The report s ntended to contrbute towards polces and practces n respect of ant-traffckng around the world and draws attenton to the gaps that undermne and frustrate efforts to prevent mgratng women, chldren and men from fndng themselves n stuatons of explotaton and traffckng. More nformaton about the report s avalable at: www.gaatw.net