Protect Not Punish Victims

UN Special Rapporteur

In a report to the 47th Session of the Uinted Nations (UN) Human Rights Council, the UN Special Rapporteur on Trafficking in Persons, Especially Women & Children, Siobhán Mullally, spoke of challenges in implementing the principle of non-punishment. As a principle, it is essential to the object and purpose of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, namely, to protect and assist victims of trafficking with full respect for their human rights. It is set out in full in the Principles and Guidelines for Human Rights and Human Trafficking of the Office of the United Nations High Commissioner for Human Rights (OHCHR):

“Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct
consequence of their situation as trafficked persons.”

In 2011, the General Assembly affirmed the non-punishment principle and urged Member States to refrain from penalizing victims who had been trafficked for having entered the country illegally or for having been involved in unlawful activities that they had been forced or compelled to carry out.

In concluding her report to the Human Rights Council Special Rapporteur Mullally staes:

The implementation of the principle of non-punishment is key to ensuring the effective protection of victims of trafficking. However, despite its recognition in international instruments and supporting jurisprudence, its application is still irregular across jurisdictions.
For the effective implementation of the principle, its application must be ensured at the onset of any investigation where evidence of trafficking exists. In fact, non-punishment should be understood as a compulsory tool that is required to be applied by all domestic authorities and investigative, prosecutorial and judicial authorities – including the police, immigration and border officials, labour inspectorates and any other law enforcement agency or officials – when a situation triggering the application of non-punishment is first identified.

A copy of the full report may be accessed here.

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