UNDERSTANDING LEGAL AND SOCIAL ASSISTANCE


Why do trafficked persons need assistance?
Trafficking can be a deeply traumatic experience. Many survivors have been subjected to exploitation, abuse or suffered human rights violations, including forcible confinement, torture, cruel or degrading treatment, rape, sexual or other forms of assault, and slavery. As such, trafficked persons and migrants who have experienced serious human rights violations urgently need access to assistance. Assistance refers to a broad range of restorative actions aimed at supporting a trafficked person to regain his/her health and livelihood. 

 
What is assistance?

Assistance includes social assistance, support, health care, legal assistance, protection, a reflection period to determine if a person wants to prosecute their trafficker(s) or not, etc.

Legal Assistance is assistance provided to or provided for persons that is of a legal nature, for any length of time (short/mid/long term) and during any phase of recovery (emergency, stabilization, return, social inclusion/(re)integration), including: provision of legal advice, provision of information about the legal process, preparation and submission of documents to courts, tribunals or administrative bodies, representation at court or other hearings.

Social Assistance is any assistance provided to or provided for persons other than legal assistance, for any length of time and during any phase of recovery, including but not limited to: accommodation/shelter, assessment services, counseling, psychological support, economic/financial, health/nutrition, language/literacy, outreach, referrals, repatriation/return assistance, translation services, vocational training.

 

What does "access to justice" mean?
Access to Justice is the right for a victim of a crime and/or human rights violation, to a hearing before an impartial tribunal to hold perpetrators of such abuses accountable for their actions and/or to seek reparations. It also means that the police, prosecutors and court shall ensure that their efforts to punish traffickers are implemented within a system that respects and safeguards the rights of the victims to privacy, dignity and safety.

This definition focuses only on legal remedies, but the struggle for justice must be seen in the context of gender justice, social justice and just access to resources. These injustices and the struggles to overcome them are a backdrop to the discrimination that trafficked persons face in seeking legal justice.

While Access to Justice is not defined as a human right in international law, elements of the Right to Access to Justice can be found in various human rights instruments. For example, it is framed within the internationally recognized Right to a Remedy for harm suffered as a result of a violation of one's human rights, which is absolutely fundamental to modern human rights law. .

A victim's right of access to justice includes the right to access all judicial, administrative, or other public processes that are available under the domestic law of a particular country, as well as under international law. The right to access to justice is an equal right shared by all people, regardless of their legal status in a country; thus there is no basis for discriminating between illegal migrants and others.

Trafficked Persons have a right to:
- Be treated with dignity and compassion at all times
- Present their views and concerns to be considered at appropriate stages of criminal, civil and/or administrative proceedings against their suspected traffickers
- The procedures for obtaining remedies should be clearly explained in a language that the trafficked person understands
- Compensation or other remedy for the violation suffered
- Procedures that are expeditious, fair, inexpensive and accessible
- Receive proper assistance throughout the legal process including legal counsel and access to the prosecutor
- Information on their role in criminal and civil proceedings, as well as about the scope, time and progress of these and the disposition of their cases
- Ensured physical and psychological protection of themselves, their families and other witnesses throughout the process
- Privacy and confidentiality, within the bounds of the law
- To remain safely in the country in which the remedy is being sought for the duration of any criminal, civil or administrative proceedings.

 
What is compensation?
A victim of trafficking can suffer a range of crimes, from assault, rape, abuse and other forms of cruel and inhumane treatment, to fraud, forgery, kidnapping, forced labour and other crimes. The experience can have long-lasting affects on the victim's physical and mental health, as well as their ability to earn a living.

Compensation, even symbolic compensation, can act as further recognition of the injustice suffered by the trafficked person. More substantive compensation, calculated on both material and non-material loss, give her a tool to rebuild her life and avoid the cycle of re-trafficking to repay debts or just to survive.

What is non-conditional assistance?
Non-conditional assistance means that all trafficked persons have the right to assistance and protection from the governments, and that this assistance is in no way conditional on the person providing testimony or other assistance and/or cooperation in prosecution.
 
Assistance is a crucial element in the prevention, suppression and prosecution of trafficked persons. Making assistance conditional, in effect bribing trafficked persons to testify against their traffickers, is short-term and wrong-headed thinking.
 
Demanding cooperation places great emotional strain on individuals who may already be experiencing trauma, and it may increase the risk of retribution against the person or his/her family, and is a denial of fundamental human rights. Experience shows that efforts to coerce people who have been trafficked and exploited into cooperating with authorities will almost certainly not generate evidence suitable for use in court proceedings and eventually fewer and fewer trafficked persons come forward to authorities. Without comprehensive assistance that provides persons with a way out of the cycle of debt and abuse, trafficked persons are at high risk of re-trafficking. 
 

All definitions come from GAATW documents and publications unless otherwise stated, particularly publications include: Human Rights and Trafficking in Persons: A Handbook, GAATW (2001) and Trafficking in Women, Forced Labour and Slavery-Like Practices in Marriage, Domestic Labour and Prostitution; STV, GAATW (1999).