Updating Chapter V. Protection and Assistance The OSCE Action Plan, in its recommendations on

Protec-tion and Assistance to the Victims of trafficking, drew from commitments undertaken by the participating States in the Ministerial Declaration on Trafficking in Human Beings (Por-to, 2002), the Ministerial Decision No.6 (Bucharest, 2001), the Ministerial Decision No.1 (Vienna, 2000), and the Charter for European Security (Istanbul, 1999).

Though it was not mentioned in the text of Chapter V of the Action Plan, the relevant provisions of the UN Trafficking Pro-tocol and the basic instruments of the international human rights law served as the universal basis for its content. The chapter of the Action Plan also referred to the CRC and rec-ommended “ratifying or acceding to, and fully implementing, the Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography”³⁴⁹ (provision 10.5) and to consider the provisions of the United Nations High Commissioner for Refugees Guide-lines for the protection of unaccompanied minors.³⁵⁰

The 2005 Addendum and the decisions taken in this regard by the Permanent Council (PC.DEC/685) and by the Ministerial Council of Ljubljana (MC.DEC/13/05) reflected a new political framework that served as a source of inspiration for the draft-ers. The same can be said about new legal obligations under the CoE Trafficking Convention (Warsaw, 2005) (the first regional treaty in this area that was focused primarily on the protection of trafficking victims) and the recommendations of “soft law”

instruments, such as the UNICEF Guidelines for the Protec-tion of the Rights of Children Victims of Trafficking in South Eastern Europe, endorsed in the Statement on Commitments

349 As of 28 March 2015, all OSCE participating States but one have ratified the Optional Protocol. The information on ratifications is available at: http://indicators.ohchr.org/

accessed 28 March 2015.

350 United Nations, UNHCR, Guidelines on Policies and Procedures in Dealing with Unac-companied Children Seeking Asylum (1997). Available at: http://www.unhcr.org/3d4f91cf4.

pdf accessed 5 February 2015.

on Victim/Witness Protection and Trafficking in Children by the Fourth Regional Ministerial Forum of the Stability Pact Task Force on Combating Trafficking in Human Beings (So-fia, 2003). In addition, the UNOCHCR Recommended Princi-ples and Guidelines on Human Rights and Human Trafficking (2002), by the time of the adoption of the 2005 Addendum, had also played a role and provided a positive atmosphere for the drafting of this document.

By the time of the adoption of the 2013 Addendum, the in-ternational and regional anti-trafficking legal framework, ad-vanced OSCE political commitments, “soft law”, guidelines and other documents had created a new background for up-dating the recommendations of the Action Plan. At the OSCE level, these included the Vilnius Declaration on Combating All Forms of Human Trafficking (MC.DOC/1/11, Vilnius, 2011)³⁵¹, MC Decision on Enhancing Criminal Justice Response to Traf-ficking in Human Beings through a Comprehensive Approach (MC.DEC/5/08, Helsinki, 2008), MC Decision on Combating Trafficking in Human Beings for Labour Exploitation (MC.

DEC/8/07, Madrid, 2007), MC Decisions on Combating Sex-ual Exploitation of Children (MC.DEC/15/06, Brussels, 2006), MC Decision on Enhancing Efforts to Combat Trafficking in Human Beings, including for Labour Exploitation, through a Comprehensive and Proactive Approach (MC.DEC/14/06, Brussels, 2006), and a number of MC decisions on related is-sues: MC Decision No.14/05 on Women in Conflict Preven-tion, Crisis Management and Post-Conflict Rehabilitation; the Ministerial Decision No.15/05 on Preventing and Combating Violence against Women³⁵²; the Ministerial Decision No.7/09 on Women’s Participation in Political and Public Life and the Ministerial Decision No.10/11 on Promoting Equal Opportu-nity for Women in the Economic Sphere. The Ministerial Deci-sion No. 14/04 on the 2004 Action Plan for the Promotion of Gender Equality and the above mentioned decisions provide the main framework for the OSCE activities addressing gender equality as a precondition for the prevention of trafficking and the protection of victims of gender-based violence. The OSCE’s National Referral Mechanisms handbook³⁵³ also played a sig-nificant role in the evolution of the general approach of the participating States toward issues concerning protection and assistance.

At the international level, the UN Global Plan of Action to Combat Trafficking in Persons (2010) was meant to mobilize the global anti-trafficking community to step up efforts to eradicate THB. Also related to the fight against THB and vic-tim protection were the ILO Convention No.189 Concerning

351 This Declaration stated: “We urge participating States to implement comprehensive and appropriate measures on assistance to victims of trafficking in persons.”

352 In 2014, the OSCE Ministerial Council adopted a new Decision No.7/14 on Preventing and Combating Violence against Women, MC.DEC/7/14, 5 December 2014.

353 OSCE/ODIHR, National Referral Mechanisms: Joining Efforts to Protect the Rights of Trafficked Persons. A Practical Handbook (2004). Available at: http://www.osce.org/

odihr/13967?download=true accessed 10 September 2015.

Decent Work for Domestic Workers³⁵⁴ adopted in 2011, the 2008 ILO Declaration on Social Justice for a Fair Globaliza-tion³⁵⁵, and the discussions that were taking place in the course of drafting a new (adopted in 2014) Protocol to the Convention on Forced Labour.

At the European level the Council of Europe Trafficking Convention was already enacted (in 2008). As for the EU level, legally binding (in terms of the obligation to achieve certain results through a variety of means taken at the national level) was the Directive 2011/36/EU  of the European Parliament and of the Council of 5 April 2011 on preventing and combat-ing traffickcombat-ing in human becombat-ings and protectcombat-ing its victims, and replacing Council Framework Decision 2002/629/JHA [OJ L 101 of 15.4.2011]. Also legally binding was the Council Direc-tive 2004/81/EC on issuing residence permits to third-coun-try nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal im-migration, if they cooperate with the competent authorities.³⁵⁶ Also at the regional level, though not legally binding, were the CIS Model Law on the Protection of the Victims of Trafficking (2008) and the CIS Programmes of Co-operation in Com-bating Trafficking in Human Beings of 2008–2010, 2011–2013 and 2014–2018³⁵⁷ which proclaimed as their purposes: ensur-ing due conditions for providensur-ing guaranteed and comprehen-sive State assistance to the victims of trafficking in human be-ings, the improving and harmonization of national legislation, including on the basis of anti-trafficking model laws adopted by the Inter-Parliamentary Assembly³⁵⁸, and consistent im-plementation of the provisions of fundamental treaties of the UN, Council of Europe, and the OSCE commitments in this area³⁵⁹. The Programme requires that in 2014 the CIS partici-pating States establish expert working groups at the national level with a view to elaborate mechanisms for transposing in-ternational standards on CTHB and the CIS Model Laws into the national legislation³⁶⁰.

354 International Labour Organization, Convention Concerning Decent Work for Domestic Workers No.189 (2011). Available at: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0 ::NO::P12100_ILO_CODE:C189 accessed 29 January 2015.

355 International Labour Organization, ILO Declaration on Social Justice for a Fair Globalization (2008). Available at: http://www.ilo.org/wcmsp5/groups/public/---dgreports/---cabinet/

documents/genericdocument/wcms_099766.pdf accessed 29 January 2015.

356 European Union, Council Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities. Available at: http://eur-lex.europa.eu/legal-content/EN/

ALL/?uri=CELEX:32004L0081 accessed 10 September 2015.

357 Commonwealth of Independent States, CIS Programme of Co-operation in Combating THB, 2014–2018 (Rus.), available at: http://www.e-cis.info/page.php?id=23806 accessed 31 January 2015.

358 The Programme was adopted in 2013 at the level of the CIS Heads of State.

359 Ibid.

360 Ibid., point 2.1.

4.6.1 Data collection and research

Recommendation (V.1.1) of the Action Plan (Protection Chapter) is related to “collecting data through the exchange and analysis of best practices and other information regarding effective protection of and assistance to victims of trafficking in the OSCE participating States.” This should be considered together with Recommendation (4) of the 2005 Addendum:

Facilitating research and gathering data, including for the pur-pose of strengthening protection and assistance programmes, on the extent of all forms of child trafficking in their countries, and making the data publicly available. Strengthening co-op-eration and improving exchange of information among States with a view to preventing child trafficking and protecting and assisting child victims, including in conflict and post-conflict situations.”

The OSCE commitments taken after 2005 also address the is-sue of data collection and research. In this context it would be advisable to refer to the MC Decision MC.DEC/14/06, which

“urges the participating States, with the support of the OSCE structures and Institutions if requested, to improve research and the system of data collection and analysis, with due re-gard to the confidentiality of data, and where possible to dis-aggregate statistics by sex, age, and other relevant factors as appropriate, in order to better assess the character and scope of the problem and develop effective and well-targeted poli-cies on trafficking in human beings. To this end, participating States are recommended to consider appointing National Rap-porteurs or similar independent monitoring mechanisms.” In-deed, national monitoring and reporting mechanisms such as National Rapporteurs have proven their effectiveness in many OSCE participating States and are extremely instrumental in the collection and analysis of data, in making it available for the public and authorities, and, moreover, in providing evi-dence-based recommendations on improving anti-trafficking responses at the national level.³⁶¹

At the same time, the failure to have relevant data collected from various reliable sources, including NGOs and other in-dependent institutions, may result in a chain of inefficient protective measures. The phenomenon of empty shelters and the reluctance of victims to identify themselves as such reflect serious deficits in the organization of protection facilities or in legal arrangements and schemes.

The Global Alliance against Trafficking in Women, in its cutting-edge publication “Collateral Damage. The Impact of Anti-Trafficking Measures on Human Rights around the World”,³⁶² demonstrates “in a small but compelling way that the road to hell may be paved with the best of intentions, and

361 Comments on national monitoring and reporting mechanisms, as well as on national coordination mechanisms are provided from p. 89.

362 Global Alliance against Traffic in Women, Collateral Damage. The Impact of Anti-Trafficking Measures on Human Rights around the World (2007). Available at: http://www.iom.int/jahia/

webdav/shared/shared/mainsite/microsites/IDM/workshops/ensuring_protection_070909/

collateral_damage_gaatw_2007.pdf accessed 29 January 2015.

the trafficked woman may find herself literally ‘from the fry-ing pan into the fire’³⁶³ situation. She may suddenly discover that in trying to remove her from harm, her well-meaning ad-vocate, be it the government, an NGO or an individual, who has come forward to assist and protect her, has actually done further harm and removed her even farther away from her de-sired destination.”³⁶⁴ It is of a serious concern that the victim “in the name of protection … can be confined to a shelter under conditions which are no different from detention, or packed off to go back ‘home’, into the very same environment that she wished to leave behind, with its joblessness, poverty, conflict, abuse, or even a not-so-dire middling situation, which to her offered neither promise nor possibility of realising her life’s full potential.”³⁶⁵ In the Preface to this publication, Jyoti Sanghera, a widely known anti-trafficking expert, points to other typical challenges faced by victims, such as conditions being attached to the assistance she is being offered (for example, co-opera-tion with law enforcement and providing evidence against her trafficker). “At any event, it is clear to this trafficked woman that if she identifies herself as a ‘victim of trafficking’, she will eventually be sent home to be reunited with her misery once again. So she chooses not to identify herself as a ‘victim of traf-ficking’ – in order not to become a victim of anti-trafficking.”³⁶⁶ This proves how relevant the OHCHR’s Primacy of Human Rights Principle remains, where it is stated that “anti-traffick-ing 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.”³⁶⁷

According to the OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking³⁶⁸, Principles 7–11 on Protection and Assistance require that:

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

363 Certainly today this is equally relevant for men and children victims of trafficking.

364 Global Alliance against Traffic in Women, Collateral Damage. The Impact of Anti-Trafficking Measures on Human Rights around the World (2007). Available at: http://www.iom.int/jahia/

webdav/shared/shared/mainsite/microsites/IDM/workshops/ensuring_protection_070909/

collateral_damage_gaatw_2007.pdf accessed 29 January 2015.

365 Ibid.

366 Global Alliance against Traffic in Women, Collateral Damage. The Impact of Anti-Trafficking Measures on Human Rights around the World (2007). Available at: http://www.iom.int/jahia/

webdav/shared/shared/mainsite/microsites/IDM/workshops/ensuring_protection_070909/

collateral_damage_gaatw_2007.pdf accessed 29 January 2015.

367 United Nations, UN OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002). Available at: http://www.ohchr.orag/Documents/Publications/

Traffickingen.pdf accessed 29 January 2015.

368 Ibid.

8. States shall ensure that trafficked persons are protect-ed from further exploitation and harm and have access to adequate physical and psychological care. Such protec-tion and care shall not be made condiprotec-tional upon the ca-pacity or willingness of the trafficked person to cooperate in legal proceedings.

9. Legal and other assistance shall be provided to traf-ficked persons for the duration of any criminal, civil or other actions against suspected traffickers. States shall provide protection and temporary residence permits to victims and witnesses during legal proceedings.

10. Children who are victims of trafficking shall be iden-tified as such. Their best interests shall be considered paramount at all times. Child victims of trafficking shall be provided with appropriate assistance and protection.

Account shall be taken of their special vulnerabilities, rights and needs.

11. Safe (and, to the extent possible, voluntary) return shall be guaranteed to trafficked persons by both the re-ceiving State and the State of origin. Trafficked persons shall be offered legal alternatives to repatriation in cases where it is reasonable to conclude that such repatriation would pose a serious risk to their safety and/or to the safety of their families.”³⁶⁹

These points form the fundamental basis of protection and assistance. They will be discussed in relation to the paral-lel provisions of the Action Plan and the Addendums. The implementation of these basic points, as in the case of many other commitments, is hampered for various reasons. Some of these reasons will be described in the concluding remarks of this Commentary. To facilitate the exchange of best prac-tices that have been developed in the OSCE region, the OSR/

CTHB convened quite a large number of events, especially the Alliance against Trafficking in Persons conferences dedi-cated to protection and assistance. These have included the high-level conferences: “Taking a Stand: Effective Assistance and Protection to Victims of Trafficking” (Vienna, 28 Febru-ary 2005); “Combating Trafficking in Human Beings, Especially Women and Children: Prevention – Protection – Prosecution”

(Vienna, 17 March 2006); “Assistance to Trafficked Persons:

We Can Do Better” (Vienna, 10–11 September 2007); “Child Trafficking: Responses and Challenges at Local Level” (Vienna, 26–27 May 2008); and others. These events have provided an excellent opportunity for exchanging information and good practices. Another regular opportunity for exchanging best practices has been initiated by the OSCE Human Dimension Committee, where the delegations of the participating States volunteer to report on anti-trafficking measures taken at the national level. The Annual Human Dimension Implementation

369 The non-punishment clause, specified by the OHCHR in terms of the most frequent offences committed under duress, was already commented on p.42.

Meeting (HDIM), which regularly includes the topic of THB in its agenda, remains another excellent channel for exchanging good practices in this area, as well as for reviewing the imple-mentation actions taken by OSCE participating States, includ-ing their NGOs’ activities. Also the GRETA country reports³⁷⁰ serve as a rich source of information on the steps being taken by those CoE Member States who are Parties to the CoE Traf-ficking Convention³⁷¹, to ensure the implementation of its re-quirements on victim identification, protection of private life, assistance to victims, recovery and reflection period, residence permits, compensation and legal redress, repatriation and re-turn of victims, and gender equality.

4.6.2 Legislative measures

Recommendation (V.2.1) of the Action Plan (“Consider-ing the need for adopt(“Consider-ing legislation which will provide the legal basis for rendering assistance and protection to victims of THB, especially during pre-trial investigations and in court proceedings”) follows the Vienna Ministerial Decision MC(8).

DEC/1 of 2000 that stated: “Such legislation should take into account a human rights approach to the problem of trafficking, and include provision for the protection of the human rights of victims, ensuring that victims of trafficking do not face prosecution solely because they have been trafficked.”³⁷² In the Porto Declaration on Trafficking in Human Beings, the partici-pating States confirmed: “We will consider adopting legislative or other measures that permit victims of trafficking to remain in our territory, temporarily or permanently, in appropriate cases, and giving consideration to humanitarian and compas-sionate factors.”³⁷³ This is a protective measure to prevent the rapid deportation (or forced repatriation) of victims without any assessment of the risks they may incur and without any as-sistance, legal advice or other forms of aid they may need. The opportunity to remain in the country of destination (taking for granted that the personal safety of the victim is guaranteed) helps victims to make informed decisions about their future (also in terms of possible participation in pre-trial investiga-tions and court proceedings, if they so decide). Providing a re-flection period (which, according to the CoE Trafficking Con-vention, should last at least 30 days) increases the chances that a victim is guaranteed access to remedies, including compensa-tion for suffered harm. It must be taken into account that EU citizens trafficked within EU territory are less protected than third-country nationals.³⁷⁴

370 Council of Europe, GRETA country reports are available at: http://www.coe.int/t/dghl/monitor-ing/trafficking/Docs/Publications/Evaluations_en.asp accessed 30 January 2015.

371 The CoE Trafficking Convention mentions that its purpose (one of – V.G.) is “to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution.”

371 The CoE Trafficking Convention mentions that its purpose (one of – V.G.) is “to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution.”