in the chapter on Protection of the Action Plan and its recommendations are based on: a) the extreme vulnerability to

THB of refugees (including in detention facilities); b) the high probability of trafficked persons in groups of refugees; and c) the serious grounds for seeking asylum by trafficked persons who may fear retaliation and persecution in their country of origin.⁴⁷³ These are the reasons for the inclusion of recommen-dation (V.9.1) on “ensuring that anti-trafficking laws, policies, programmes and interventions do not affect the right of all persons, including victims of THB, to seek and enjoy asylum from persecution in accordance with international refugee law, in particular through effective application of the principle of non-refoulement.” This reflects the 2002 OHCHR Recom-mended Principles and Guidelines, which emphasize at the beginning that “anti-trafficking measures shall not adversely affect the human rights and dignity of persons, in particular the rights of those who have been trafficked, and of migrants, internally displaced persons, refugees and asylum-seekers.”⁴⁷⁴ This also meets the vision of the UNHCR and its engagement in the fight against THB. As was forcefully explained in the UNHCR compilation of international instruments for tackling the issue, “Refugee Protection and Human Trafficking:

Se-472 OSCE, Ministerial Council Decision No.5/08 Enhancing Criminal Justice Responses to Trafficking in Human Beings through a Comprehensive Approach, MC.DEC/5/08 5 December 2008.

473 This is even more relevant in conflict situations or in post-conflict areas for populations affected by displacement for any reason.

474 United Nations, UN OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002).

lected Legal Reference Materials”⁴⁷⁵, firstly, “the UNHCR has a responsibility to ensure that refugees, internally displaced per-sons (IDPs), stateless perper-sons and other perper-sons of concern do not become victims of human trafficking. Secondly, UNHCR has a responsibility to ensure that individuals who have been trafficked and who have a wellfounded fear of persecution if returned to their country of origin are recognized as refugees and afforded international protection. Lastly, as part of the UN’s interagency response to combat trafficking, UNHCR has a responsibility to ensure that victims of trafficking without international protection needs are referred on to appropriate actors which can provide them with support and assistance.”⁴⁷⁶ The UNHCR gives a precise explanation of who, among traf-ficked persons, is eligible for the status of refugee: “While all victims of trafficking are subject to grave abuses of their human rights, not every victim will qualify for international refugee protection. In order to be recognized as a Convention refu-gee, an individual who has been trafficked must meet all the requirements of the 1951 Convention Relating to the Status of Refugees and/or its 1967 Protocol. Victims of trafficking who do not meet the criteria of the 1951 Convention but are nev-ertheless in need of international protection may qualify for complementary forms of protection based on non-refoulement obligations under international human rights law or the na-tional law of the country in which they are in. Other victims of trafficking may be entitled to various forms of assistance under either the Anti-Trafficking Protocol or regional anti-trafficking conventions. Such measures, however, vary considerably from one state to another and, in all cases, are outside the interna-tional refugee regime. Addiinterna-tional entitlements may arise under international human rights law.”⁴⁷⁷

One more explanation can be found in the Commentary to the Recommended Principles and Guidelines on Human Rights and Human Trafficking. The Commentary clarifies that “a claim for international protection in the case of trafficking can arise in different circumstances. For example: (i) Where the victim has been trafficked to a country other than her/his own and seeks the protection of the host State; or (ii) Where the vic-tim, fearing trafficking or having already been trafficked within her or his own country, manages to escape and flee to another country in search of protection.”⁴⁷⁸

475 United Nations, UNHCR, Refugee Protection and Human Trafficking: Selected Legal Reference Materials (2008). Available at: http://www.refworld.org/pdfid/498705862.

pdf accessed 15 February 2015. This publication includes international criminal law, international human rights law, international refugee law, international labour law, resolutions of the General Assembly, regional law and policy documents, including the relevant OSCE Ministerial Council Decisions (MC.DEC/8/07; MC.DEC/14/06; 13/05; 13/04; OSCE Action Plan and its 2005 Addendum).

476 Ibid., pp.11–12.

477 Ibid., p.12.

478 United Nations, Commentary to the Recommended Principles and Guidelines on Human Rights and Human Trafficking, p.69.

The right to seek asylum is positively addressed in the UN Trafficking Protocol, which, in its Art. 14 (Saving clause), states that “1. Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and individuals un-der international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.” Moreover: “2. The measures set forth in this Protocol shall be interpreted and applied in a way that is not discriminatory to persons on the ground that they are vic-tims of trafficking in persons. The interpretation and applica-tion of those measures shall be consistent with internaapplica-tionally recognized principles of non-discrimination.”⁴⁷⁹

Since it refers to the UN Trafficking Protocol, it is advisable to take into account the commentary provided by the Legisla-tive Guides for the Implementation of the UN Convention against Transnational Organized Crime and the Protocols Thereto, which explains that under the basic principle it is established “that any rights, obligations or responsibilities ap-plied to a State party prior to the Protocol are maintained and not affected by the Protocol. The Protocol does not narrow or diminish rights, obligations or responsibilities; it only adds to them to the extent that is provided for in the text (Art. 14 of the Protocol). Thus, for example, requirements established by dif-ferent instruments for dealing with asylum seekers and victims of trafficking would apply jointly to the same case whenever a victim requests political asylum.”⁴⁸⁰

As far as regional instruments are concerned, the CoE Traf-ficking Convention, for example, in Art. 14 (Residence permit) and in Art. 40 (Relationship with other international instru-ments), indicates that “each Party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum”, and that “nothing in this Convention shall affect the rights, obligations and responsibili-ties of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.”⁴⁸¹

In 2014, the OSCE/ODIHR, in its Handbook Guiding Princi-ples of Human Rights in the Return of Trafficked Persons, calls for granting international or complementary/subsidiary protection on the basis of the right to seek and enjoy asylum from persecution. The OSCE reiterates that “the granting of asylum should not be made conditional on the willingness of the victim of trafficking to participate in legal proceedings.

Moreover, when determining the refugee status or need for

479 United Nations, Legislative Guides for the Implementation of the UN Convention against Transnational Organized Crime and the Protocols Thereto (2010).

480 Ibid., p.255.

481 Council of Europe, CoE Convention on Action against Trafficking in Human Beings, Art.14 and Art 40.

other forms of international protection of a trafficked person, due consideration should be given to the different risks of re-prisals or retaliation by perpetrators of trafficking that male and female victims may face. Finally, the fact that a trafficked person entered or remained in the country of destination with-out legal authorization should not affect her/his access to asy-lum proceedings or the outcome of those proceedings.”⁴⁸² To conclude, it is highly advisable to take into account also the UNHCR Guidelines on Policies and Procedures in deal-ing with Unaccompanied Children Seekdeal-ing Asylum (1997) that are relevant to child victims of trafficking. These include:

“Children should always have access to asylum procedures, re-gardless of their age; Children seeking asylum, particularly if they are unaccompanied, are entitled to special care and pro-tection; Children seeking asylum should not be kept in deten-tion. This is particularly important in the case of unaccompa-nied children.”⁴⁸³ Moreover: “All efforts must be made to have them released from detention and, placed in other appropriate accommodation.”⁴⁸⁴ For general issues related to adult victims of THB, extremely helpful are the Guidelines on Internation-al Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of be-ing trafficked.⁴⁸⁵

4.6.11 Protection of children

The recommendations of the Action Plan, Chapter V, part 10, related to the protection of child victims of trafficking, with regard to specific issues of protection, have been commented on above according to topic. They have been integrated into the various sub-sections, as for example, provision (V.10.1) on “ensuring that the special needs of children and the best interests of the child are fully taken into account when decid-ing upon appropriate housdecid-ing, education and care” is found in the section “Shelters”. The approach to protecting child victims was considerably strengthened in 2005 by the Addendum Ad-dressing the Special Needs of Child Victims of Trafficking for Protection and Assistance.

The 2013 Addendum placed even more emphasis on the protection of child victims of trafficking, and specifically ad-dressed new forms of THB-related exploitation of children. In provision 1.5, the 2013 Addendum recommended “enhancing the capacity of police, social workers and other public authori-ties who may come in contact with children and other

individ-482 OSCE/ODIHR, Guiding Principles on Human Rights in the Return of Trafficked Persons (2014), p.22–23. Available at: http://www.osce.org/odihr/124268?download=true accessed 15 February 2015.

483 UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (1997). Available at: http://www.refworld.org/docid/3ae6b3360.html accessed 15 February 2015.

484 Ibid., p.10.

485 United Nations, UNHCR, Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked (2006). Available at: http://www.

refworld.org/docid/443679fa4.html accessed 15 February 2015.

uals trafficked and exploited in forced and organized begging to ensure prompt response to their particular needs, with the objective to immediately remove, where possible, victims from harmful and exploitative situations.” By emphasizing forced and organized begging as a form of exploitation particularly harmful for trafficked children, the 2013 Addendum opened a new page in the fight against child trafficking. Child victims exploited in forced begging rarely attract the attention of so-cial services or law enforcement agencies. The problem is even more challenging when such children are forced to beg (or commit petty crimes, such as pickpocketing) by their parents.

Rescuing such children means engaging them in long-term rehabilitation programmes that separate them from criminal networks completely and provide opportunities for education and socialization. As mentioned above (p.82–83), it is nearly impossible to rely on adoption or even foster families for their care due to the wide-spread negative presumption that the in-fluence of a criminal environment or the impact of their ex-ploitation, in whatever form, may have been too strong and destructive in a child for an adoptive family to overcome. Quite a number of NGOs and serviceproviders (from Russia, Alba-nia, as well as other places) have reported that attitudes of this kind obstruct the rehabilitation of child victims and lead to their possible retrafficking, irrespective of protective measures that have been taken. Given the complexity of the problem, it is highly advisable to do more than just “remove” victims from exploitative and harmful situations. To achieve results that are sustainable and meet the best interests of the child, measures must be established that provide psychological and medical assistance, safe housing, individually designed empowerment programmes and longterm social support.

4.7 Updating Chapter VI: Follow-up and Coordination Mechanisms

In its final chapter, the Action Plan is dedicated to follow-up and coordination mechanisms. These two aspects are highly effectual in mobilizing State agencies in the fight against THB.

The Action Plan recommends (VI.1) “to consider appointing National Rapporteurs or other mechanisms for monitoring the anti-trafficking activities of State institutions and the im-plementation of national legislation requirements”; and (VI.2)

“to consider establishing Anti-Trafficking Commissions (task forces) or similar bodies responsible for coordinating activi-ties within a country among State agencies and NGOs, and for elaborating measures to prevent THB, to punish perpetrators of THB and to protect its victims.”

A National Rapporteur or an equivalent mechanism is a means for obtaining the most realistic and evidence-based data on THB at the national level, for assessing the scope of traffick-ing and the effectiveness of the anti-trafficktraffick-ing measures be-ing taken by a State, and, drawbe-ing on this data collection and analysis, for producing recommendations for the government and the parliament. This vital role was already described in 1997 in The Hague Ministerial Declaration on European Guidelines for effective measures to prevent and combat trafficking in women for the purpose of sexual

exploita-tion (under the Dutch Presidency of the European Union).

This Declaration was one of the first in a series of policy docu-ments highlighting the necessity of national monitoring and reporting in the fight against trafficking. The Hague Declara-tion encouraged the EU Member States at the ministerial level to: “Provide or explore the possibilities for the appointment of national rapporteurs, who report to Governments on the scale, the prevention and combating of trafficking in women;

Develop criteria for reporting on the scale, nature and mecha-nisms of trafficking in women and the effectiveness of policies and measures concerning this phenomena; Encourage the co-operation of national rapporteurs on a regular basis.”⁴⁸⁶ It was followed by the 2003 Resolution of the Council of the Euro-pean Union, which invited the Commission and the member States to “promote measures to set up a monitoring system on trafficking in human beings in order to provide updated data through the continuous and regular collection of information from the competent National Authorities such as National Bu-reaux and National Rapporteurs.”⁴⁸⁷

In 2009, the Council of the EU, in its Conclusions on estab-lishing an informal EU network of National Rapporteurs or Equivalent Mechanisms on THB, developed its well-es-tablished position further, stating that “bearing in mind that many Member States have already appointed a National Rap-porteur or an equivalent mechanism and also taking into ac-count the various reasons why certain tasks exercised by such bodies in some Member States are bound with the National Coordinator or National Task Force … [e]ach Member State, on the basis of national conditions, is invited to designate a National Rapporteur or equivalent mechanism, with the scope of activity that includes collection of information and advis-ing on human traffickadvis-ing to participate in the activities of the network.”⁴⁸⁸ The Council of the EU stated that National Rap-porteurs are invited to “contribute to the exchange of best practices and sharing of experience at a national and European level; contribute to existing efforts to develop indicators and criteria that will improve the comparability and consistency of information and assist in the development of the European Un-ion activities related to statistics on THB; contribute to gath-ering and analysing qualitative and quantitative information related to THB, which has been collected by National Rappor-teurs or equivalent mechanisms in the course of their activities, while fully respecting the applicable rules on the protection of personal data.”⁴⁸⁹

486 http://www.legislationline.org/documents/action/popup/id/8747 accessed 16 February 2015.

487 European Union, EU Council Resolution of 20 October 2003 on initiatives to combat trafficking in human beings, in particular women (2003/C 260/03). Available at:

https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/council_resolu-tion_20_oct_2003_en_1.pdf accessed 11 September 2015.

488 European Union, EU Council Conclusions on establishing an informal EU network of National Rapporteurs or Equivalent Mechanisms on THB (2009). Available at: http://

www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/108312.pdf accessed 16 February 2015.

489 Ibid.

Article 19 of the Directive 2011/36/EU provides for the