36/43 Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences
Document Type: Final Report
Date: 2017 Aug
Session: 36th Regular Session (2017 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.17-13209(E)
Human Rights Council Thirty-sixth session
11-29 September 2017
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on contemporary forms of slavery, including its causes and
consequences, Urmila Bhoola, submitted pursuant to Human Rights Council resolution
33/1.
United Nations A/HRC/36/43
Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences
Contents
Page
I. Introduction and summary of recent activities .............................................................................. 3
A. Participation in consultations and conferences ..................................................................... 3
B. Country and follow-up visits ................................................................................................ 3
II. Legal elements of the right to have access to justice and remedy ................................................. 3
A. General characteristics of slavery, institutions and practices similar
to slavery, servitude and forced labour ................................................................................. 4
B. State responsibility and the standard of due diligence .......................................................... 5
III. Challenges and obstacles encountered by persons subjected to contemporary
forms of slavery to access justice .................................................................................................. 7
A. Social and cultural barriers ................................................................................................... 7
B. Practical barriers ................................................................................................................... 9
C. Institutional and procedural barriers ..................................................................................... 10
D. Challenges encountered by persons subjected to contemporary forms of
slavery in gaining access to justice and remedy for violations in supply chains .................. 13
IV. Measures undertaken at the national level aimed at ensuring access to justice
and remedy to persons subjected to contemporary forms of slavery ............................................. 14
V. Components of a comprehensive human rights based approach to ensure
that persons subjected to contemporary forms of slavery have access to justice and remedy ....... 16
VI. Conclusions and recommendations ............................................................................................... 17
A. Conclusions .......................................................................................................................... 17
B. Recommendations to States Members of the United Nations ............................................... 17
C. Recommendations to other stakeholders............................................................................... 20
I. Introduction and summary of recent activities
A. Participation in consultations and conferences
1. Since she presented her previous report to the Human Rights Council
(A/HRC/33/46), the Special Rapporteur on contemporary forms of slavery, including its
causes and consequences has participated in a wide range of international conferences and
initiatives relating to the contemporary forms of slavery. In September 2016, the she
attended a meeting convened by the Prime Minister of the United Kingdom of Great Britain
and Northern Ireland and attended by other heads of State, United Nations agencies and
civil society experts in the margins of the seventy-first session of the General Assembly.
2. In December 2016, the Special Rapporteur participated in a panel discussion on
child slavery with the United Nations High Commissioner for Human Rights and other
stakeholders, convened by the United Nations Voluntary Trust Fund on Contemporary
Forms of Slavery. The Fund assists individuals, whose human rights have been severely
violated as a result of contemporary forms of slavery. It provides vital direct humanitarian,
legal and financial assistance to victims through grants awarded to non-governmental
organizations (NGOs). Throughout the implementation of her mandate over the past year,
the Special Rapporteur has worked in collaboration with the Fund. She thanks its members
for their ongoing support to all elements of her work and encourages Member States to
support their work.
3. In March 2017, the Special Rapporteur gave a presentation at the Security Council
ministerial open debate on trafficking in persons in conflict situations, including forced
labour, slavery and other similar practices. In her statement, she called for greater
coordination and leadership on slavery and related phenomena and for States members of
the Security Council to ratify and implement international standards.
4. In the past year, the Special Rapporteur has engaged with “SDG Alliance 8.7”, a
multi-stakeholder coalition committed to accelerating and intensifying actions to achieve
target 8.7 of the Sustainable Development Goals. As such, she attended the high-level
launch of the initiative in New York in September 2016 and a consultation on child labour
and forced labour in Addis Ababa in June 2017.
B. Country and follow-up visits
5. Since her presentation to the Human Rights Council at its thirty-third session, the
Special Rapporteur conducted a country visit to Paraguay from 17 to 24 July 2017. The
purpose of the visit was to address the causes and consequences of contemporary forms of
slavery in the country, identify good practices undertaken by the Government, investigate
the challenges and develop recommendations for how efforts to eradicate slavery could be
accelerated. A report summarizing the visit will be available as an addendum to the Special
Rapporteur’s report to the General Assembly at its seventy-third session.
6. In addition to the above-mentioned fact-finding visit, the Special Rapporteur
conducted visits to Mauritania and the Niger in April and August 2017, respectively, in
order to conduct workshops to assess the implementation of the mandate’s previous
recommendations.
II. Legal elements of the right to have access to justice and remedy
7. The term “contemporary forms of slavery” covers the practices prohibited by the
Slavery Convention of 1926, the Supplementary Convention on the Abolition of Slavery,
the Slave Trade and Institutions and Practices Similar to Slavery of 1956 and the
International Labour Organization (ILO) Forced Labour Convention, 1930 (No. 29).
Considering the practices covered by the mandate of the Special Rapporteur and the legal
definitions stipulated in those international instruments, the practices encompassed by the
term “contemporary forms of slavery” cover traditional slavery; the institutions and
practices similar to slavery, such as debt bondage, serfdom and forced marriage; and forced
labour. The present report focuses on access to justice and remedy for victims of
contemporary forms of slavery, particularly for persons subjected to practices in the context
of labour exploitation that satisfy the legal definitions of slavery; debt bondage; and forced
labour. That focus reflects the information submitted by different stakeholders and Member
States in response to the questionnaire prepared by the Special Rapporteur on access to
justice and remedy for victims of contemporary forms of slavery.
A. General characteristics of slavery, institutions and practices similar to
slavery, servitude and forced labour
8. A hierarchy in international law exists among slavery and other forms of
exploitation, with slavery being the most severe type of exploitation. 1 The element of
control of the person or his/her labour is present in the various forms of exploitation to
different degrees, and the most extreme form of control is manifested when it exhibits
powers attached to ownership. This accounts for a distinction between slavery and other
lesser exploitive practices, such as forced labour, servitude and the institutions and
practices similar to slavery. However, such practices can also constitute “slavery” in law
and can be prosecuted as such if they manifest any or all of the powers relating to the right
of ownership or if the control exercised over the person subjected to the practices is
equivalent to possession of the person.
1. Slavery, forced labour, institutions and practices similar to slavery and servitude
9. The Slavery Convention defines slavery in its article 1.1 as “the status or condition
of a person over whom any or all of the powers attaching to the right of ownership are
exercised”. That definition relates not only to the de jure status of slavery, but the de facto
condition of slavery; it is not restricted to legal ownership — a status that has been
abolished worldwide — but to a lived condition in which one individual exercises over
another powers that are similar to or attach themselves to the right of ownership. A
situation of de facto slavery implies that a person can exercise over another “any or all” of
the powers attached to ownership in circumstances where control tantamount to possession
is present; that type of control constitutes a prerequisite for any de facto exercise of the
powers attaching to ownership.2
10. In furtherance of the elements contained in article 2.1 of its Forced Labour
Convention, 1930 (No. 29), ILO has defined forced labour as work for which a person has
not offered him or herself voluntarily (concept of “involuntariness”) and which is
performed under menace of any penalty (concept of “coercion”) applied by an employer or
a third party to the worker. The four “institutions and practices similar to slavery” defined
in the 1956 Supplementary Convention, referred to collectively as “servile status”, should
be understood as conventional servitudes. They are: debt bondage; serfdom; forced
marriage; and a category that has been subsequently known as “the sale of children”.
Furthermore, the notion of “servitude” has also been defined through the decisions of
adjudicative organs related to human rights.3
2. Legal status of the prohibition of slavery
11. The prohibition of slavery has attained jus cogens status and constitutes an
obligation erga omnes. The recognition of slavery as jus cogens entails the duty to
prosecute or extradite, the non-applicability of statutes of limitation and universality of
1 Jean Allain, The Law and Slavery: Prohibiting Human Exploitation (2015).
2 Ibid. See also report of the Secretary-General on slavery, the slave trade and other forms of servitude
(E/2357).
3 See Siliadin v. France, European Court of Human Rights, Application 73316/01 (2005), paras. 123-
124.
jurisdiction over the practice of slavery, regardless of where it is committed, by whom and
against what category of victims.4 The International Court of Justice has identified the
protection from slavery as an example of an obligation erga omnes.5 The practice of slavery
has been universally accepted as a crime against humanity,6 and the right to be free from
enslavement is considered so fundamental that all States can bring before the Court cases
where other States have violated that right.7
B. State responsibility and the standard of due diligence
12. The obligation of States to provide remedies and the right to have access to remedies
can arise directly or indirectly under the rules of responsibility. The obligation arises
directly when the State is active or complicit in subjecting an individual to slavery,
servitude, practices and institutions similar to slavery and forced labour. On the contrary,
the obligation arises indirectly when the State is not implicated in the harm but has failed to
prevent it or respond appropriately (e.g. when the State has failed to exercise due diligence
to investigate and prosecute perpetrators and to assist and protect victims).
13. The principle of State responsibility confirms that States have an obligation to act
with due diligence, which entails the exercise of a measure of care in preventing and
responding to acts by private persons or entities that interfere with established rights. Under
the standard of due diligence, the State is not responsible for the acts of others, but for its
failure to prevent, investigate, prosecute or provide redress for the harm caused. The
general obligations of States extend beyond negative obligations of non-interference and
include positive obligations, such as legislative reform, the provision of remedies and
protection from non-State interference.
1. Obligation to ensure that subjecting a person to slavery, servitude, practices and
institutions similar to slavery and forced labour is defined in law as a crime8
14. States have an obligation to adopt appropriate legislation penalizing slavery,
servitude, practices and institutions similar to slavery and forced labour, this legislation
must be sufficiently clear and detailed and provide a punishment commensurate to the
crime. In its 2005 judgment in the Siliadin v. France case, concerning a woman who had
been held in servitude as a domestic worker in France and for the first two years of her
exploitation had been a child (aged under 18 years), the European Court of Human Rights
observed that the legislation in France regarding servitude had been vague and the penalties
imposed had been inappropriately lenient. Referring to the obligations of France as a State
party to the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery and to the Convention on the Rights of the
Child the Court considered that
Limiting compliance with article 4 of the [the Convention for the Protection of
Human Rights and Fundamental Freedoms] only to direct action by the State
authorities would be inconsistent with the international instruments specifically
concerned with this issue and would amount to rendering it ineffective. … States
have positive obligations … to adopt criminal-law provisions which penalize the
practices referred to in Article 4 and to apply them in practice.9
4 See M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligations Erga Omnes”, in Law
And Contemporary Problems, Vol. 59, Iss. 4 (1996).
5 See Barcelona Traction, Light and Power Co, Ltd. (Belgium v. Spain), 1971 I.C.J. 32. (Feb. 5).
6 Article 7 (2) (c) of the Rome Statute of the International Criminal Court characterizes “enslavement”
as a crime against humanity falling within the jurisdiction of the Court.
7 See R.C. Redman, “The League of Nations and the Right to be Free from Enslavement: the First
Human Right to be Recognized as Customary International Law”, in Chicago-Kent Law Review, Vol.
70, Iss. 2, pp. 759-800 (1994).
8 See annex for additional relevant jurisprudence at the regional level.
9 See Council of Europe, European Court of Human Rights, Siliadin v. France (Application 73316/01),
26 July 2005, para. 89.
The Court concluded that “the criminal-law legislation in force at the material time did not
afford the applicant, a minor, practical and effective protection against the actions of which
she was a victim”10 and that the State had violated its positive obligations under article 4 of
the Convention for the Protection of Human Rights and Fundamental Freedoms, which
prohibits slavery, servitude and forced labour.
2. Obligation to ensure that offences involving slavery, servitude, practices and
institutions similar to slavery and forced labour are investigated and prosecuted with
due diligence
15. The due diligence standard imposes a positive duty on States to ensure the effective
enforcement of their criminal law through effective investigation and prosecution of
perpetrators. The Economic Community of West African States (ECOWAS) Court of
Justice, in its 2008 case Hadijatou Mani Koraou v. The Republic of Niger, concerning a
woman who had been sold at age of 12 to a local tribal chief and placed in a servile status,
referred to the duty of States to investigate and prosecute crime. The laws of the Niger
prohibited slavery and servitude, but when State officials were informed of the exploitation
of the woman they took no action to protect her. The Court observed that “the national
judge, when having to rule on a matter relating to the status of persons (as in the case of the
applicant) should as soon as the case raises facts relating to servitude, deal with the case
relating to servitude and follow the stipulated procedure for punishing the crime”.11 The
Court concluded that the applicant had been a victim of slavery and that the Niger was
responsible for its administrative and judicial authorities’ failure to act with regard to the
practice.
16. In 2016, the Inter-American Court of Human Rights issued a judgment in the case of
Hacienda Brasil Verde Workers v. Brasil concerning the situation of workers, primarily
men of African descent, coming from the country’s poorest states, who were subjected to
slave labour in a privately owned estate located in the northern part of the country. The
Court observed that the obligation to guarantee the right of freedom from slavery,
recognized in article 6 of the American Convention on Human Rights, entails the duty of
the State to prevent and investigate possible situations of slavery, servitude, trafficking in
persons and forced labour.12 The Court considered that:
States have the obligation to: initiate ex officio and immediately an effective
investigation that enables the identification, prosecution and sanction of those
responsible when there exists a complaint or serious reason to believe that persons
under their jurisdiction are subjected to the practices stipulated in article 6.1 and 6.2
of the Convention (on slavery, involuntary servitude, traffic in women and forced
labour); … conduct inspections or other measures to detect such practices; and adopt
measures to protect and assist victims.
The Court observed that, under the circumstances of the case, there was a special obligation
to act with due diligence and that that obligation had not been fulfilled by the State.13
3. Obligation to provide a remedy to persons subjected to contemporary forms of slavery
17. The duty of a State to provide domestic legal remedy to victims of human rights
violations for the harms suffered in their territory is well established in international and
regional human rights instruments (see annex). The obligation of States to provide a
remedy has two components: (a) justice for victims through procedural mechanisms
10 Ibid. paras. 148-149.
11 ECOWAS Court of Justice, Judgment No. ECW/CCJ/JUD/06/08 of 27 October 2008, Hadijatou
Mani Koraou v. The Republic of Niger, para. 82 (unofficial translation).
12 Hacienda Brasil Verde Workers v. Brasil, American Convention on Human Rights, October 2016,
para. 319 (unofficial translation).
13 Ibid. para. 368.
(procedural remedies); resulting in (b) final positive relief (substantive reparations).14 The
nature of the procedural remedies (judicial, administrative or other) should be in accordance
with the substantive rights violated and the effectiveness of the remedy in granting
appropriate relief for such violations. In the case of grave abuses, such as slavery, practices
and institutions similar to slavery and forced labour, remedies need to be judicial. However,
States can also provide other non-judicial remedies to complement reparation procedures. A
right of access to effective remedies entails the availability of such remedies under criminal
or civil law, and States should ensure that victims are provided with information and
assistance that will enable them to secure the reparations to which they are entitled.
18. The reparations for victims of slavery, practices and institutions similar to slavery,
servitude and forced labour should be accessible, affordable, timely, full and effective,
while respecting the principles of appropriateness and proportionality. The Basic Principles
and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law
advise that reparations for victims should include restitution, compensation, rehabilitation,
satisfaction and guarantees of non-repetition.
III. Challenges and obstacles encountered by persons subjected to contemporary forms of slavery to access justice
A. Social and cultural barriers
1. Discrimination and social structures
19. Persons subjected to contemporary forms of slavery often belong to populations that
are likely to be discriminated against, including women, children, indigenous people,
people of “low” caste status and migrant workers. The societal discrimination that minority
groups suffer denies their right to equal access to justice: often, State officials, including the
police, prosecutors and the judiciary, are inherently prejudiced against people belonging to
such groups. As a result, they experience discrimination at every step in the administration
of justice for their rights violations. This situation is exacerbated when the groups are not
represented within law enforcement authorities. Furthermore, the wide discrimination that
people belonging to such groups suffer results in them having a sense of inferiority, which
often poses challenges in their deciding to claim their rights or report the abuse they have
suffered.
People of “low” caste status, indigenous people and other minority groups
20. In South Asia, debt bondage and forced labour is reported to be widespread in
countries such as Bangladesh India, Nepal and Pakistan.15 Those who are trapped in debt
bondage in South Asia are predominantly Dalits, of “low” caste status, indigenous people
or other minority groups. In some countries, a hierarchy of work has been created as a
result of community divisions under which labourers are put at the lower level, particularly
those of “low” caste status or those belonging to ethnic and religious minorities. An
individual’s access to justice, jobs and other rights and privileges are often conditioned by
this social hierarchy. This results in discrimination, domination, inequality and disparity,
primarily through a lack of cultural and social power and access to resources for people
who belong to minority groups. Furthermore, those who opt to defy traditional exploitative,
discriminatory and humiliating roles, often face social boycotts that further restrict any
opportunity to overcome discrimination-related poverty and dependency on employers or
landlords.
14 See REDRESS, “Implementing Victim’s Rights: A Handbook on the Basic Principles and Guidelines
on the Right to a Remedy and Reparation” (2006). Available from
www.redress.org/downloads/publications/Reparation%20Principles.pdf.
15 Submissions to the Special Rapporteur from the organizations READ, DSN-UK and the Nepal
National Dalit Social Welfare Organization. See also A/HRC/33/46.
21. In some African countries, even though slavery is a crime, the practice of slavery
persists and is entrenched in social structures and cultural beliefs, and people subjected to
that practice are often unaware that their situation is illegal or unjust. People subjected to
slavery are often at the bottom of a social hierarchy based along ethnic and racial lines and
suffer widespread discrimination and social exclusion; they are in some instances treated by
perpetrators as commodities that can be sold, loaned or offered as a marriage gift, and
receive no payment for their work. In Mauritania, the Haratine (also known as black
Moors) constitute the largest ethnic group. They suffer discrimination, marginalization in
the political and economic sphere and are particularly affected by slavery.16 In the Niger,
slavery has been reported to exists in the Tuareg, Fulani (Peul), Toubou and Arab
communities, which are hierarchical societies dominated by powerful traditional chiefs.17
22. In Latin America, in countries such as Guatemala, Paraguay and the Plurinational
State of Bolivia, poverty and social exclusion affecting indigenous people in isolated areas
often create conditions that enable the continuation of practices such as debt bondage and
forced labour. Obstacles encountered by indigenous people in attempting to gain access to
the justice system are generally a function of the social exclusion and ethnic discrimination
that they have historically suffered,18 coupled in some cases by a lack of recognition of
ethnic diversity by elites and the authorities.19 A barrier often encountered by indigenous
people to access justice is the lack of sensitivity and in some cases lack of consideration by
the justice system of their practices and customs (e.g. the prohibition of the use of
indigenous language in judicial proceedings particularly in cases where they lack
knowledge of the official language).
Cross-border migrant workers
23. The Arab states, North America and Northern, Southern and Western Europe, which
typically include high-income countries, are major destination countries for migrant
workers.20 The majority of people trafficked for labour exploitation to those regions are
migrant workers and are involved in a variety of jobs, including domestic work, agricultural
work and construction. The irregular employment or migration status of some migrant
workers make them particularly vulnerable to exploitation and creates barriers to them
seeking legal redress. This has a gender dimension since large numbers of migrants in
unskilled and unregulated sectors are women.21 A rise in anti-immigrant sentiment in many
countries, stricter migration polices and the prosecution for migration-related criminal
offences constitute challenges for migrant workers to gain access to justice. Often they are
treated as perpetrators of an immigration crime, risking imprisonment or deportation, rather
than as victims entitled to protection, assistance and redress. Furthermore, victims of
trafficking for labour exploitation are often detained, prosecuted or punished for crimes
they are forced to commit as a result of being trafficked.22
24. Regular migrants who are given work permits can also be subjected to labour
exploitation, particularly when their work permit ties them to a single employer. In some
countries of the Cooperation Council for the Arab States of the Gulf, and Arab states such
as Bahrain, Lebanon, Saudi Arabia, the United Arab Emirates, migrant workers are
16 See A/HRC/15/20/Add.2, paras. 5 and 12.
17 See A/HRC/30/35/Add.1, paras. 34-36.
18 See Inter-American Commission on Human Rights, Captive Communities: Situation of the Guarani
Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco (2009). Available from
www.oas.org/en/iachr/indigenous/docs/pdf/CAPTIVECOMMUNITIES.pdf.
19 See Julio Faundez, “Access to justice and indigenous communities in Latin America”, in
Marginalized communities and access to justice (Yash Ghai and Jill Cottrell, eds.) Chapter 5 (2009).
20 See ILO, Global Estimates on Migrant Workers: Results and Methodology, Special focus on migrant
domestic workers (2015). Available from www.ilo.ch/wcmsp5/groups/public/---dgreports/---
dcomm/documents/publication/wcms_436343.pdf.
21 See Organization for Security and Cooperation in Europe, An Agenda for Prevention: Trafficking for
Labour Exploitation (Vienna, 2011), Chap. 2.
22 As a matter of international law, victims of human trafficking should not be detained, prosecuted or
punished for crimes they are forced to commit as a result of being trafficked (see European Union
Trafficking Directive (2011/36), article 8).
particularly vulnerable to exploitation and a primary barrier to ensuring them access to
justice is the kafala system of labour sponsorship, by which migrant workers are required to
obtain sponsorship from their employers in order to live and work in the country. Domestic
migrant workers are among the most vulnerable and can face specific barriers to gaining
access to justice and remedy, including severe restrictions on their freedom of movement,
such as passport confiscation and an inability to leave their work premises, and a
dependence on their employers for retaining regular migration status.
2. Self-identification and lack of trust in the justice system
25. The relationship between potential victims and offenders can sometimes be
contradictory. Some persons subjected to contemporary forms of slavery would often not
see themselves as victims of exploitation and abuse. Migrant workers, for example, who
had some knowledge of the situation that they were entering, may not want to be labelled as
victims, but be provided with another job and better working conditions. Also, if the
perpetrator is a family member, they may not be willing to be labelled as victims or to press
charges, because of emotional ties. Furthermore, victims who belong to a group of people
that has suffered discrimination and exclusion over generations and live in societies where
slavery crimes are embedded in traditional beliefs and customs, would often not identify
themselves as victims due to the normalization of such practices.
26. Persons subjected to contemporary forms of slavery often do not have confidence in
law enforcement and judicial bodies. They often consider them to be corrupt or fear they
will be discriminated against or revictimized. Furthermore, the fact that legal processes tend
to be prolonged and complex exacerbates their distrust of the legal system. Systemic
discrimination against people of “low” caste, indigenous people, migrants and other
minorities in wider society and corruption among law enforcement, coupled with victims’
concerns over their particular situation (e.g. irregular status), feed into a general distrust of
the police among victims and a perception that law enforcement agencies and courts exist
to protect the wealthy and powerful.23
B. Practical barriers
27. Contemporary forms of slavery often take place in areas that are isolated and not
easily accessible. This poses particular challenges to the identification of victims by the
authorities as well as practical barriers to victims for accessing justice. The informal
employment of workers in a range of economic activities and the fact that exploitation often
occurs in hidden, inaccessible workplaces pose challenges to the identification of victims
and their access to justice; informal employment is widespread in agriculture, small and
medium enterprises, domestic work, among other services. 24 Furthermore, physical
accessibility to justice institutions is a barrier encountered by victims, and the centralization
of legal and administrative systems prevents victims from rural or remote areas from
gaining access to such mechanisms. Thus, in many cases, victims exploited in places far
from the main urban areas have little or no possibilities to gain access to specialized support
services. Child victims in particular face enormous barriers in gaining accessing to justice.
28. Persons subjected to contemporary forms of slavery belong to groups in society that
are marginalized and economically disadvantaged; they are exploited for their labour and
paid low wages, not paid for their work, or their salaries are withheld; they are
economically dependent on those who exploit them and this situation poses financial
constraints in considering or attempting to gain access to justice. Pursuing criminal justice
and participating in the procedure often involves significant expenses that victims cannot
afford, including court and other filing fees, legal fees, expenses for gathering documents,
23 Submissions to the Special Rapporteur from the organizations ASI and the Global Alliance Against
Traffic in Women.
24 See ILO, Hard to see, harder to count: Survey guidelines to estimate forced labour of adults and
children (Geneva, 2012). Available from www.ilo.org/wcmsp5/groups/public/---ed_norm/---
declaration/documents/publication/wcms_182096.pdf.
traveling to courtrooms, food and accommodation while the case is ongoing, and indirect
costs such as loss of earnings.
C. Institutional and procedural barriers
1. Legislative and policy barriers
Absence of legal protection
29. The international legal framework prohibiting contemporary forms of slavery
imposes on States the obligation to adopt stand-alone domestic legislation criminalizing
such practices and to ensure that the penalties established are adequate and commensurate
with their gravity, beyond any provisions they may have in place criminalizing trafficking
in persons. However, to date, a significant number of States parties to the instruments
prohibiting contemporary forms of slavery have not yet put in place provisions
criminalizing forced labour, servitude and/or slavery as stand-alone offences at the
domestic level. 25 Furthermore, the legal definitions developed in some States are often
inadequate to enable enforcement officials to detect contemporary patterns of exploitation.
The absence of clear definitions or vagueness in the law constitute major impediments for
law enforcement officials to detect cases of contemporary forms of slavery and gather
appropriate evidence to prove an offence has occurred in order to identify and protect
victims.
30. In order to guarantee to victims of contemporary forms of slavery adequate and
effective remedies, legislation prohibiting such practices should make available as remedies
not only criminal proceedings but also civil compensation.26 The burden of proof to bring
criminal charges is set at a high threshold, which makes prosecution in some cases difficult.
Often, prosecution is not possible owing to a lack of evidence; therefore, that avenue is only
available in those few cases where the perpetrator has been convicted. Where there is no
specific civil remedy stipulated by law for contemporary forms of slavery, the only option
open to victims is existing civil actions, which are often inadequate to address the nature of
such forms of exploitation.
31. Finally, the non-regulation of certain occupations or their exclusion from national
labour laws make workers, particularly women, vulnerable to contemporary forms of
slavery and constitutes an obstacle to their equal access to justice. In its general
recommendation No. 26 (2008) on women migrant workers, the Committee on the
Elimination of Discrimination Against Women, considering that domestic work is one of
the occupations in which migrant women dominate, stated that in countries of destination,
such occupations may be excluded from legal definitions of work, thereby depriving
women of a variety of legal protections.
Legislation and policies that limit victims’ access to justice
32. In some countries, legislation and policies exist that facilitate contemporary forms of
slavery and create barriers for victims to access justice and remedy. The kafala system,
which is in place in a number of countries in the Middle East, creates a power imbalance in
the employment relationship and leaves workers with little bargaining power and
vulnerable to exploitation. Migrant workers who decide to flee from an abusive employer
are classified as irregular migrants and may be subjected to arrest, detention and
deportation or in some cases falsely accused by their employers of having committed a
crime. Furthermore, the criminalization of illegal entry to a country, illegal working or
overstaying the period of a visa, denies protection to victims of contemporary forms of
25 Submission to the Special Rapporteur by Jean Allain.
26 See working paper of the organization FLEX entitled “Access to Compensation for Victims of
Human Trafficking” (July 2016). Available from
www.labourexploitation.org/sites/default/files/publications/DWP-Compensation-F.pdf.
slavery who migrate irregularly or become irregular once in the destination country.27 That
situation makes victims fear the authorities, increases control of perpetrators over them and
makes it unlikely that they will complain to the authorities.
2. Lack of identification of victims
33. The non-identification of victims of contemporary forms of slavery by law
enforcement agencies, labour inspectors, border management forces and other relevant
competent authorities is a significant obstacle for victims in gaining accessing to justice,
since identification constitutes the first step that leads to protection and to initiating the
process whereby access to justice and remedy can be obtained. The reasons for the failure
to identify victims include: a lack of specialized knowledge on the part of the authorities in
identifying, or insufficient training about, contemporary forms of slavery, or a lack of
capacity to distinguish between such practices and those that constitute less serious forms
of abuse; insufficient financial resources allocated to the identification of victims; a lack of
awareness among authorities and the public; and in some countries a systematic refusal by
the authorities to identify, acknowledge or respond to cases of contemporary forms of
slavery. The focus on the immigration status in cases of undocumented migrants subjected
to contemporary forms of slavery can also lead to the misidentification of victims by the
authorities.28 Furthermore, the fact that persons subjected to contemporary forms of slavery
often do not identify themselves as victims poses challenges to their identification. There
are particular difficulties in identifying children who are enslaved or subjected to forced
labour or servitudes, which makes it more important for law enforcement authorities to be
adequately trained.
3. Lack of investigation, prosecution and punishment of perpetrators
34. Many of the countries where contemporary forms of slavery occur have limited
capacity to investigate and prosecute such crimes.29 The enforcement of laws criminalizing
contemporary forms of slavery often remains ineffective owing to institutional weaknesses
that are manifested in the failure of the police, prosecutors and the judiciary to respond
adequately to reported cases of exploitation, from identifying and investigating to
prosecuting and punishing perpetrators. Those weaknesses can be the result of a lack of
training and capacity of the authorities responsible for the enforcement of legislation; a lack
of political will on the part of the authorities to make victims protection a priority;
susceptibility to corruption; and discrimination within the justice system against minorities.
During the initial phase of the justice chain, 30 access to justice can be obstructed by
weaknesses in the actions of the police, prosecutors and other authorities encountered by
victims of contemporary forms of slavery. Those weaknesses are reflected in poor
investigation and gathering of evidence. At the level of the administrative authorities and
the police, there are often limited efforts to seek out victims, investigate cases that are
brought to their attention or refer cases to prosecutors. Furthermore, at the prosecutorial
level, there is often a failure to conduct criminal investigations with due diligence, and
27 See Global Alliance Against Traffic in Women, “Enabling Access to Justice: A CSO Perspective on
the Challenges of Realising the Rights of South Asian Migrants in the Middle East” (Bangkok, 2017).
Available from
www.gaatw.org/publications/GAATW_Enabling%20Access%20to%20Justice_2017.pdf.
28 See La Strada International and Anti-Slavery International, “European Action for Compensation for
Trafficked Persons: Findings and Results of the European Action for Compensation for Trafficked
Persons” (2012). Available from
http://lastradainternational.org/lsidocs/Findings%20and%20results%20of%20Comp.Act.pdf.
29 See D. Tolbert and L. A. Smith, “Complementarity and the Investigation and Prosecution of Slavery
Crimes” in Journal of International Criminal Justice, Vol. 14, Iss. 2 (2016).
30 The justice chain is the series of steps that a person has to make to gain access to justice through the
formal justice system or to claim their rights. See United Nations Entity for Gender Equality and the
Empowerment of Women (UN-Women), Progress of the World’s Women 2011-2012: in Pursuit of
Justice (2011), available from www.unwomen.org/-
/media/headquarters/attachments/sections/library/publications/2011/progressoftheworldswomen-
2011-en.pdf?vs=2835.
complaints concerning contemporary forms of slavery can be reclassified under other
“lesser” and unrelated charges or informal settlements arranged. In some instances, victims
are pressured from different actors, including the police and judicial officials, in order to
reach an agreement to end the prosecution.31
4. Lack of immediate and long-term assistance
35. The absence of effective programmes and policies to provide socioeconomic support
to victims of contemporary forms of slavery emerging from a situation of slavery make
them vulnerable to relapsing into exploitation owing to the destitution that victims often
face. Persons subjected to contemporary forms of slavery need to be able to have access to
immediate and long-term assistance that enables them to restart their lives as independently
as possible. Delays in the provision of assistance, complex procedures to gain access to
those services, along with insufficient government funding to the assistance and recovery
process and the contingency of assistance to victims on cooperation with the justice system,
are some of the barriers that prevent victims from accessing immediate and long-term
assistance.32 Immediately after escaping from the situation of exploitation, the victim must
be provided with basic assistance, such as: housing in safe houses or shelters until the cases
are closed; medical support, including basic health check-ups; mental health support;
psychosocial counselling; financial aid; travel and maintenance expenses for victims and
witnesses during investigation and trial; and travel and daily allowances. Once the short-
term needs of the victim are met, other services aimed at ensuring long-term recovery must
be provided, such as life-skills training; assistance with job seeking; reintegration
assistance; vocational training; language classes; education; and social activities.
5. Lack of information and legal assistance
36. Persons subjected to contemporary forms of slavery are often not aware of the
possibilities for gaining access to justice and remedy and therefore do not report the
exploitation they have suffered to the authorities. However, even when victims have been
officially identified, they are sometimes not provided with clear and consistent information
about their rights, relevant laws and regulations, available complaint mechanisms and legal
remedies; this situation is exacerbated for victims who have few language skills or are
illiterate. Furthermore, victims can often be deterred from participating in legal proceedings
because simple, accessible and timely legal advice is not available to them; advice is not
always freely available to victims, particularly prior to engagement with authorities. In
some instances, professionals who advice or assist victims of contemporary forms of
slavery are not specialized in handling cases concerning such forms of exploitation;
awareness and understanding of available procedures among professionals regarding
available procedures has appeared to fall short. Despite legislation in place in some
countries that entitles victims to legal aid, they are often unable to gain access to those
services owing to a limited number of legal aid providers; persistent delays by the relevant
authorities in considering requests from victims to have access to the services; and lack of
resources allocated to ensure the provision of legal services. Some jurisdictions permit
registered anti-slavery NGOs to bring claims on behalf of victims (such as in the anti-
slavery laws in Mauritania and the Niger).
6. Weak victim and witness protection
37. The absence of any legal and administrative mechanisms to protect victims from the
time their complaints are registered by the police to the conclusion of the legal proceedings
denies them the right to security of life and can be a powerful incentive for them not to
claim their rights to have access to justice and remedy.33 Persons subjected to slavery and
31 National Dalit Movement for Justice, Justice Under Trial, Caste Discrimination in Access to Justice
before Special Courts (New Delhi, 2014). Available from
www.annihilatecaste.in/uploads/downloads/Justice%20Under%20Trial.pdf.
32 Submissions to the Special Rapporteur from the organizations International Dalit Solidarity Network
and the Freedom Fund.
33 See Justice Under Trial (footnote 31 above).
related forms of exploitation, witnesses and members of the victim’s family often face
threats and harassment from the perpetrator, the perpetrator’s community and in some cases
the authorities. Such practices have been shown to have a negative influence on the
outcome of trials as victims and witnesses can be intimidated into not cooperating with law
enforcement authorities. In some cases, despite credible fears of reprisals, the law
enforcement agencies have failed to take adequate measures to ensure victim and witness
protection, despite being requested to do so by the courts.34 The fear of reprisals from
perpetrators and the sense of insecurity is often exacerbated in cases were the victims
continue to live in the same community as the alleged perpetrators.
D. Challenges encountered by persons subjected to contemporary forms of
slavery in gaining access to justice and remedy for violations taking
place in international supply chains
38. The globalized economy has created opportunities for transnational corporations
across different sectors to source goods and services at a low cost from complex chains of
suppliers, and has allowed those corporations to extend their operations across national
borders, including to developing countries.35 Transnational corporations with supply chains
that are long and complex are more likely to face challenges related to contemporary forms
of slavery. In particular, lower levels of supply chains are often at risk of products or raw
materials being sourced from home-based or small workshops in the informal economy and
made under conditions that include slavery, forced labour or debt bondage.36
39. Access to justice and remedy for victims in that context is often constrained by legal
rules limiting the liability of transnational corporations for human rights violations not
directly arising from their business operations. Furthermore, the absence of laws with
extraterritorial effect often denies victims of contemporary forms of slavery access to
justice in cases in which the exploitation of individuals occurs in a territory different from
the one where the corporation is domiciled. Often, victims are left with the only option of
seeking redress in the territory where the violation has occurred and denied an effective
remedy:37 the challenges that some developing countries face in regulating companies (e.g.
due to governance issues, weak or non-existent legal frameworks or lack of sufficient
resources) have meant that people vulnerable to exploitation are more likely to experience
corporate human rights abuses and are less able to have access to justice and remedy.
40. The measures undertaken by corporations to handle complaints of violations of
workers’ rights within their supply chains, such as operational-level grievance mechanisms,
can play a role in facilitating access to justice and remedy and feed into the fulfilment of
businesses’ due diligence obligations, through the identification of adverse human rights
impacts. However, several aspects of those mechanisms raise questions regarding their
adequacy, which include: the unequal power dynamics between victims of contemporary
forms of slavery and companies, the enforcement of the outcomes of such mechanisms and
the remedies awarded not being proportionate to the harm suffered and the lack of criminal
sanctions.
34 Office of the United Nations High Commissioner for Human Rights, Opening the Door to Equality,
Access to Justice for Dalits in Nepal (Nepal, 2011), available from
www.opendemocracy.net/beyondslavery/gscpd/urmila-bhoola/urmila-bhoola-yes. See also The
Freedom Fund, Putting Justice First: Legal Strategies to Combat Human Trafficking in India,
available from www.trust.org/contentAsset/raw-data/ceedfd4f-0573-4caa-85ce-d5c222570078/file.
35 See Urmila Bhoola, “Soft law not enough to prevent slavery and exploitation” (Open Democracy, 13
September 2016). Available from www.opendemocracy.net/beyondslavery/gscpd/urmila-
bhoola/urmila-bhoola-yes.
36 See A/HRC/30/35, para. 20.
37 Amnesty International, Injustice Incorporated, Corporate Abuses and the Human Right to Remedy
(London, 2014). Available from www.amnesty.org/en/documents/POL30/001/2014/en/.
IV. Measures undertaken at the national level aimed at ensuring access to justice and remedy to persons subjected to contemporary forms of slavery
41. The examples of measures undertaken at the national level presented in the present
section were provided by Member States, NGOs and other stakeholders in their responses
to the questionnaire on access to justice and remedy prepared by the Special Rapporteur.
Furthermore, reference is made to examples of measures that have been referenced by the
Special Rapporteur in previous thematic and country visit reports.
National legislation, policies and programmes38
42. In Mauritania, Law No. 031/2015 stipulates in its article 2 that slavery constitutes a
crime against humanity and it is imprescriptible. Article 7 imposes a punishment of 10 to
20 years’ imprisonment for subjecting a person to slavery. Articles 22 and 23 grant locus
standi to associations that defend human rights. Article 24 provides that victims of slavery
and slavery-like practices benefit from legal assistance and are exempted from all costs and
legal fees related to the proceedings. Decree No. 2016.002 established special tribunals
against slavery, which are currently set up in Nouakchott, Nema and Nouadhibou and are
officially operational. Furthermore, a public institution has been created to identify, propose
and implement programmes to eradicate poverty and the consequences of slavery.
43. In the Niger, the Criminal Code (Act No. 61-027 of 15 July 1961) in its article 270.1
defines slavery. Article 270.2 imposes 10 to 30 years of imprisonment for slavery and a fine
of between 1 million and 5 million CFA francs. Article 270.5 grants locus standi to any
association duly registered at least one year before the occurrence of the acts concerned and
mandated by its statutes to fight against slavery or similar practices.
44. In India, the 1976 Bonded Labour System (Abolition) Act and the 1976 Bonded
Labour (Abolition) Rules outlawed debt bondage and were intended to free all bonded
labourers, cancel their debts, establish economic rehabilitation measures and punish
(through fines and imprisonment) those who employ bonded labourers. They imposed a
penalty on perpetrators of up to 3 years’ imprisonment and a fine of up to 2,000 rupees. The
recently adopted 2016 Central Sector Scheme for Rehabilitation of Bonded Labourers
increased the amount of rehabilitation paid to released bonded labourers. The Legal
Services Authorities Act 1987 established legal services authorities to provide free and
competent legal services to the weaker sections of society.
45. In Nepal, the Bonded Labour (Prohibition) Act, 2058 (2002) abolished the practice
of bonded labour in the country and provides for penalties and fines for perpetrators. The
2002 Act requires the establishment of freed bonded labourer rehabilitation and monitoring
committees in a number of districts. In Pakistan, the Bonded Labour System (Abolition)
Act 1992 abolished bonded labour throughout the country and provides for 2 to 5 years’
imprisonment for perpetrators and/or the impositions of a fine of 50,000 rupees. The law
mandates provincial governments to set up district vigilance committees for the
implementation of the law and rehabilitation of bonded labourers.
46. In Lebanon, article 586-2 of the Criminal Code criminalized slavery, with penalties
ranging from 5 to 15 years’ imprisonment and a fee of 100 to 500 times the minimum
wage. Article 586 (8) of the Code of Criminal Procedure provides that the judge may grant
a foreign victim the right to reside in Lebanon until the end of the proceedings if his/her
residence in the country is illegal. In Saudi Arabia, the 1992 Basic Law of Governance
provides in its article 47 that the right to litigation shall be guaranteed equally to citizens
and residents and that the law shall set forth the required procedures to ensure that right.
The Labour Law (issued by Royal Decree No. M/51 and amended by Royal Decree No.
M/46) penalizes the withholding of wages, the confiscation of passports, excessive work
hours and the employment of a worker without a written contract. In Qatar, Law No. 21 of
38 Submissions from Argentina, Australia, Lebanon Mauritania, and Saudi Arabia and the organizations
Americans for Democracy and Human Rights in Bahrain, ASI and FLEX.
2015 regulating the entry, exit and residency of expatriates is aimed at replacing the kafala
system with a contract-based system.
47. In Argentina, the crime of servitude or other similar conditions is stipulated in article
140 of the Criminal Code and punishable by 3 to 15 years of prison. Moreover, the National
Directorate for the Promotion and Strengthening of Access to Justice was created by Decree
No. 1755/08 to conduct and promote activities related to legal and social programmes and
communitarian support. In Brazil, article 149 of the Penal Code punishes the offence of
“reducing someone to conditions analogous to slavery” with 2 to 8 years’ imprisonment and
a monetary fine.
48. In the United Kingdom, the Modern Slavery Act 2015 criminalizes (under the
concept of “modern slavery”) slavery, servitude and forced or compulsory labour. Penalties
include life imprisonment for conviction on indictment, or imprisonment for a term not
exceeding 12 months or a fine or both for summary conviction. Section 8 provides that
criminal courts have the ability to make reparation orders in cases where a perpetrator has
been convicted of slavery, servitude or forced labour. Section 47 amended the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 and entitles victims to legal aid for
applications for leave or remain in the United Kingdom, compensation claims under
employment law and claims for damages.
49. In the Netherlands, the 2011 Act on strengthening the position of victims of crime
allows victims of violent crimes and sexual offences, including victims of trafficking for
purposes of forced labour, to seek an advance payment from the State if the offender was
convicted and ordered to pay damages to the victim as part of a criminal sentence, and
he/she fails to pay those damages within a period of eight months after the sentence has
become final.
50. In Australia, the Criminal Code Act 1995 criminalizes slavery servitude and forced
labour. Slavery is punishable by up to 25 years’ imprisonment (Division 270). The Fair
Work Ombudsman is responsible for maintaining mechanisms that provide trafficked
people with the opportunity to pursue civil damages, including for unpaid wages and
entitlements.
Measures undertaken in the context of supply chains
51. In France, Law. No. 2017-399 of 2017 on the duty of care of parent companies and
ordering companies establishes the obligation for parent and subcontracting companies to
be vigilant. The law imposes on large French companies the duty of publishing annual
public vigilance plans linked to their own activities, those of companies under their control
and those suppliers and subcontractors with whom they have established commercial
relationships. The breach of the duty of care may result in liability for the company.
52. In the United States of America, the Trade Facilitation and Enforcement Act of 2015
prohibits the importation of goods made with forced labour (Sect. 910). The California
Transparency Act of 2010 requires companies headquartered in California or doing
business in the state who have worldwide annual revenues exceeding $100 million to
disclose information regarding their efforts to eradicate slavery and human trafficking in
their supply chains. The Trafficking Victims Protection Reauthorization Act of 2008
created an offence of knowingly benefiting from forced labour and imposes the penalty of a
fine, imprisonment of up to 20 years, or both (Sect. 1589). Furthermore, the Act establishes
extraterritorial jurisdiction over trafficking in persons, forced labour, slavery and
involuntary servitude (Sect. 223).
53. In the United Kingdom, the 2015 Modern Slavery Act contains a provision on
transparency in supply chains, requiring all United Kingdom businesses with global
turnover in excess of 36 million pounds and trading in the United Kingdom to publish an
annual modern slavery statement disclosing the measures taken to identify, address and
prevent modern slavery in their supply chains.
V. Components of a comprehensive human rights-based approach to ensure that persons subjected to contemporary forms of slavery have access to justice and remedy
54. Ensuring effective access to justice and remedy for victims of contemporary forms
of slavery is rooted in the full and effective application of the rule of law. A strong rule of
law relies on effective and equitable delivery of public services, such as criminal, civil and
administrative justice, legal aid and assistance and law-making, for all individuals within a
jurisdiction, without discrimination. States should take all steps necessary to provide
services that ensure the rule of law in a fair, effective, non-discriminatory and accountable
manner, and that such services are available and accessible nationwide.
55. The adoption of legislation that criminalizes slavery, practices and institutions
similar to slavery and forced labour in order to give effect to the rights of victims as
established in international law is essential as a first step to ensuring the right of victims to
access to justice. These laws must be fully enforced, along with other relevant laws such as
those on minimum wage and non-discrimination by labour inspectors, the police, courts and
other judicial actors with sufficient capacity to provide efficient and effective
administration of the law. Enforcement authorities must be trained on contemporary forms
of slavery in order to secure justice and prevent the inadequate collection of evidence, the
imposition of lenient sentences or the prosecution of perpetrators under laws different than
those prohibiting contemporary forms of slavery. In situations where legislation
criminalizing contemporary forms of slavery is not implemented owing to societal
discrimination against minority groups, it is essential that States acknowledge the existence
of discrimination and its link with the prevalence of those practices and introduce adequate
measures to ensure victims’ access to justice and remedies. This entails the obligation to
ensure that law enforcement officers are sensitized to the situation and rights of minority
groups and that minorities are represented at all levels of government and the police force,
as well as within the judiciary.
56. States have a duty to ensure that statutory agencies with a mandate to identify
victims have knowledge and adequate training on contemporary forms of slavery and that
the necessary resources are allocated in order to ensure that the rights of victims are
protected. States should develop and disseminate operational guidelines on the different
practices with indicators that help officials identify whether a particular situation could
constitute the crime of slavery. Those indicators should: (a) guide them to identify possible
situations of exploitation; (b) be country-specific by taking into consideration the regions
and economic sectors in which these practices are prevalent; (c) be based on national
legislation; and (d) allow them to distinguish between contemporary forms of slavery and
other lesser forms of exploitation. Periodic training on the identification of victims should
be provided to law enforcement officers, border guards, immigration officials, prosecutors,
judges, labour inspectors, diplomatic and consular staff, social welfare officers and child
protection officers.
57. After being identified, victims of contemporary forms of slavery must be provided
with adequate immediate assistance that should not be conditional on their cooperation with
the authorities and include accommodation, medical care and psychological assistance and
material assistance. Furthermore, victims should also receive long-term assistance in order
to help them continue to recover and rebuild their lives, including measures to facilitate
their reintegration into society and gain access to sustainable livelihoods. Monitoring of
policies and programmes for short-term and long-term assistance should be conducted in
order to ensure they are effective and prevent victims from returning to situations of
exploitation. Support to victims should include providing information and assistance to
enable them to gain access to their legal rights in a language and manner that they can
understand. Legal assistance should be provided free of charge by lawyers trained in
working with victims of contemporary forms of slavery and at the earliest opportunity.
58. Persons subjected to contemporary forms of slavery must have access to a
competent and independent authority in order to be protected and assisted appropriately and
to obtain adequate reparations. Furthermore, States have a duty to ensure that competent
and independent authorities respond effectively to situations of contemporary forms of
slavery and that perpetrators are investigated and prosecuted, and receive and serve
sentences that are commensurate with the crime. Avenues for victims obtaining remedy and
reparation should not be costly, complex or restrictive, and should offer victims of
contemporary slavery redress for the damage they have suffered as a result of being
subjected to such practices.
VI. Conclusions and recommendations
A. Conclusions
59. States have an obligation to respect, promote and fulfil the right to have access
to justice by making available a system of effective remedies to persons subject to
their jurisdiction. That entails the obligation of States to establish or strengthen where
necessary judicial and administrative mechanisms to enable victims to obtain redress
through legal procedures that are expeditious, fair, inexpensive and accessible.
Reparations for victims should be timely, full and effective while respecting the
principles of appropriateness and proportionality and must include restitution,
compensation, rehabilitation, satisfaction and guarantees of non-repetition. States
have a legal duty to prevent contemporary forms of slavery, investigate with special
diligence, and to identify and prosecute those responsible and impose appropriate
punishment.
60. Access to justice is essential for eradicating contemporary forms of slavery and
protecting the human rights of victims. However, victims often encounter within
justice systems a number of challenges and obstacles of a social, legal, institutional,
procedural or practical nature that affect their capacity to gain access to justice and
limit the remedies available to them. In some countries where contemporary forms of
slavery exist, implementation of legislation that prohibits and punishes those practices
remains poor owing to weak rule of law, corruption, discrimination and social
exclusion and lack of capacity among law enforcement officials to investigate and
prosecute perpetrators. A comprehensive victim-centred and human rights-based
approach to ensure that persons subjected to contemporary forms of slavery have
access to justice and remedy must have at its centre the compliance of States with
their obligations under international law as well as full restitution of the rights of
victims. Recommendations on the implementation of such an approach are detailed
below.
B. Recommendations to States Members of the United Nations
61. With respect to social and cultural barriers, the Special Rapporteur
recommends that States:
(a) Take all steps necessary to tackle the root causes and manifestations of
discrimination against minority groups that are vulnerable to contemporary forms of
slavery, including women, children, indigenous people, people of “low” caste status
and migrant workers;
(b) Ensure that minority groups are provided with decent work
opportunities and full and productive employment, adequate social services and free
and compulsory primary education;
(c) Implement effective state programmes and policies to provide
socioeconomic support to victims emerging from slavery;
(d) Recognize the existence of discrimination and its direct link to the
prevalence of contemporary forms of slavery and introduce appropriate measures to
ensure that people belonging to minority groups have equal access to justice;
(e) Adopt national anti-discrimination legislation and take the necessary
measures to ensure that institutional discrimination and societal prejudice against
minority groups is eradicated in a proactive manner; in addition, implement human
rights-based training on the prevention and elimination of discrimination across State
institutions;
(f) Ensure that members of minority groups are represented within law
enforcement authorities;
(g) Ensure that law enforcement officials are aware of their responsibility to
undertake outreach work targeting persons subjected to contemporary forms of
slavery, considering that victims may be unable to seek assistance, may not trust the
authorities or may fear the consequences of making a complaint;
(h) Undertake public awareness-raising campaigns to challenge stigma and
prejudices within society towards groups vulnerable to contemporary forms of
slavery, and sensitize populations to the rights of such people.
62. In terms of practical barriers, the Special Rapporteur recommends that States:
(a) Allocate sufficient resources to ensure that laws can be fully
implemented at the national level, including in isolated areas, and ensure that the
reach of the justice system is expanded to remote and rural areas where contemporary
forms of slavery are prevalent;
(b) Adopt measures to ensure that legal, administrative and procedural fees
related to access to justice are waived for victims of contemporary forms of slavery
who cannot afford them; in addition, provide financial assistance to victims that cover
costs related to the proceedings, such as transportation and accommodation and other
costs associated with gaining access to justice.
63. Regarding legislative and policy barriers, the Special Rapporteur recommends
that States:
(a) Ratify all the Conventions in the international legal framework
prohibiting contemporary forms of slavery and ensuring that persons subjected to
these practices have equal access to justice and effective remedies, including the
Protocol of 2014 to the ILO Forced Labour Convention, 1930 (No. 29). States should
align their national legislation with these international standards, in order to
adequately protect victims of contemporary forms of slavery;
(b) Ensure that contemporary forms of slavery are criminalized as specific
crimes within national legal frameworks with adequate penalties commensurate with
the crimes; all forms of contemporary forms of slavery should be criminalized as
stand-alone crimes and treated separately from related phenomena such as trafficking
in persons;
(c) Ensure that legislation adopted criminalizing contemporary forms of
slavery is sufficiently clear and detailed in order for law enforcement officials to detect
situations in which persons are subjected to these practices and to enforce the law;
(d) In addition, legislation should make it possible for victims to seek civil
remedies where criminal justice fails to secure redress;
(e) Review or abolish legislation and policies that directly or indirectly limit
access to justice to persons subjected to contemporary forms of slavery, and ensure
that victims have adequate access to justice irrespective of their immigration status;
(f) Ensure that all labour occupations are adequately regulated and
included in legal definitions of work in order to provide adequate legal protection to
victims of contemporary forms of slavery.
64. In terms of institutional and procedural barriers, the Special Rapporteur
recommends that States:
(a) Ensure all authorities involved in the fulfilment of the rights of victims of
contemporary forms of slavery are adequately trained in the identification of victims
including border management authorities, the police, public prosecutors, labour
inspectorate and the judiciary;
(b) Provide labour inspectors with a mandate and the tools necessary to
enable them to identify victims of contemporary forms of slavery proactively, and
eliminate challenges to effective labour inspections, such as measures that compel
labour inspectors to conduct immigration enforcement activity;
(c) Consider systemic collection of data as a means by which victims of
contemporary forms of slavery are being identified in order to improve identification
efforts;
(d) Ensure the adequacy of structures and institutions to address violations
and availability of effective, fair and protective mechanisms and complaints
procedures; allocate financial and human resources to ensure the effective functioning
of the judicial system;
(e) Provide training to law enforcement authorities on legislation
prohibiting contemporary forms of slavery to ensure that they respond to the cases
brought to their attention efficiently and effectively; ensure that institutional training
is reinforced with performance targets;
(f) Train police, prosecutors and judicial authorities in the handling of
victims of contemporary forms of slavery, especially on how to create a safe,
supportive, and child-sensitive and gender-sensitive environment for victims to ensure
they can access justice;
(g) Take adequate corrective measures to ensure that officials who have
failed to implement the law properly or have obstructed its implementation are
disciplined;
(h) Take all steps necessary to eliminate all forms of corruption in the justice
system that could impede the fulfilment of the right to access to justice and remedy;
(i) Take the measures necessary to ensure the protection of victims as well
as family members and witnesses, including protection from intimidation and
retaliation for exercising their rights under legislation criminalizing contemporary
forms of slavery or for cooperating with legal authorities;
(j) Provide protection measures to victims of contemporary forms of slavery
that are not conditional on the victim’s willingness to cooperate in criminal and other
proceedings;
(k) Ensure that persons subjected to contemporary forms of slavery are
informed, in a language they understand, of their rights, relevant laws and
regulations, available complaint mechanisms and legal remedies; officials who have
direct contact with victims of contemporary forms of slavery should be trained to
provide this information to them;
(l) Ensure that victims of contemporary forms of slavery have access to
competent legal advice and assistance and that the necessary resources are allocated
to provide high-quality legal aid;
(m) Ensure that all victims of contemporary forms of slavery, both nationals
and non-nationals, can pursue appropriate administrative, civil and criminal
remedies, irrespective of their legal status;
(n) Take the measures necessary to ensure that non-nationals victims
contemporary forms of slavery are able to remain in a country to pursue legal
remedies;
(o) Take measures to protect victims of contemporary forms of slavery,
including, in particular for migrant workers, the provision of a reflection and
recovery period in order to allow the victim to take an informed decision relating to
protective measures and participation in legal proceedings;
(p) Ensure that victims of contemporary forms of slavery are not detained,
prosecuted or punished for crimes they have committed as a result of being subjected
to such practices; develop guidance for police officers, prosecutors and judges on the
implementation of the “non-punishment provision”;
(q) Ensure that information about the number of successful convictions and
sentences passed are published on a regular basis;
(r) A compensation fund should be available for victims of contemporary
forms of slavery to ensure they are able to successfully seek compensation against
perpetrators in the absence of a criminal prosecution.
65. Regarding barriers in the context of global supply chains, the Special
Rapporteur recommends that States:
(a) Take all actions necessary to ensure the full and effective implementation
of the Guiding Principles on Business and Human Rights, including the third pillar on
remedy;
(b) Consider elaborating an international legally binding instrument to
regulate, under international human rights law, the activities of transnational
corporations and other business enterprises;
(c) Provide oversight of all non-State grievance mechanisms, ensuring that
they respect due process standards and uphold the rights of victims to have access to
justice and remedy as established in international law.
C. Recommendations to other stakeholders
66. United Nations agencies should support Member States, civil society
organizations and other stakeholders to ensure the right to have access to justice,
including through the development of relevant programmes by country teams and
technical support to countries in developing robust legislation and policies.
67. Business stakeholders should take all steps necessary to ensure full compliance
with the Guiding Principles, including the third pillar on remedy.
68. Business stakeholders should refrain from the use of private grievance
mechanisms that violate the rights of victims of contemporary slavery to justice and
remedy.