Transnational Referral Mechanism
According to the ICMPD’s TRM Guidelines (2010) a: ‘Transnational Referral Mechanism (TRM) is a co-operative agreement for the cross-border comprehensive assistance and/or transfer of identified or potential trafficked persons. A TRM links all stages of the referral process from the initial screening, through formal identification and assistance, to the voluntary assisted return, the social inclusion, and the civil and criminal proceedings. It is based on the co-operation between governmental institutions, intergovernmental agencies and non-governmental organisations of countries of origin, transit and destination of the assisted trafficked persons. Through the TRM, state actors of different countries fulfil their obligations to promote and protect the human rights of trafficked persons.’
Transnational Referral Mechanism based on the National Referral Mechanisms (NRM):
These are the main steps of the National Referral Mechanism (and Transnational Referral Mechanism) which are connected and build on each other:
A TRM is therefore strictly intertwined with the National Referral Mechanisms (NRMs) of the countries involved. The NRM has been defined as follows by the Organisation for Security and Co-operation in Europe (OSCE):
The National Referral Mechanism is ‘a co-operative framework through which state actors fulfil their obligations to protect and promote the human rights of trafficked persons, co-ordinating their efforts in a strategic partnership with civil society. The basic aims of an NRM are to ensure that the human rights of trafficked persons are respected and provide an effective way to refer victims of trafficking to services. In addition, NRMs can work to help to improve national policy and procedures on a broad range of victim-related issues such as residence and return regulations, victim compensation, and witness protection.
The specific case of Switzerland
Due to the federal structure of Switzerland, the cantons have the main responsibility to fight human trafficking, i.e. criminal prosecution, assistance to victims and enforcing provisions on the stay of trafficking victims. Only criminal procedures involving organized crime (as stipulated in article 260ter of the Swiss Criminal Code) and the approval of special residence permits as determined by the law on foreign nationals are the responsibility of the federal authorities. However, even when prosecutions come under federal responsibility the protection of victims relies on cantonal structures.
Therefore, there is no single referral mechanism at the national level, but cooperation and referral mechanisms at the cantonal level to ensure the victim’s access to assistance. Cooperation among different actors involved in fighting human trafficking at the operational level (e.g. police, public prosecution offices, public victim counselling centres or private victim assistance organisations, migration authorities etc.) is defined in a cooperation agreement which, ideally, is submitted to the cantonal government for approval to underline the binding nature of its provisions. The agreement thus provides a cooperation mechanism in the cantons for fighting human trafficking. The purpose of regular roundtable meetings is to evaluate cooperation and discuss improvements and other measures against human trafficking. So far, 18 of the 26 cantons have established a cooperation mechanism. Statistics prove that the number of human trafficking victims identified is directly related to the existence of such mechanisms in the cantons.
I. Identification |
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What are the steps of identification? |
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A victim is detected on the basis of his or her account or on the basis of indicators and red flags that help identify signs of victimization. Frontline responders must meet the person’s urgent and basic needs, and inform him or her about the victim protection scheme through a multilingual information leaflet. The frontline responders who identify a victim take the following steps:
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The process of identifying a victim of THB consists of the following steps: Reporting: All organizations and individuals can report a possible victim of trafficking in human beings, for example to the National Police. However, when it comes to granting access to the reflection period and shelter to victims who are third-country nationals, only the National Police and the Royal Netherlands Marechaussee (the border police) are authorized to report them to the Immigration and Naturalization Service for that purpose. All victims can be reported to CoMensha (for registration and referral to a shelter) by a law enforcement organization, an NGO, a healthcare organization and so on. Identification: the Dutch system does not have any formal identification procedure. Referral: For victims who are Dutch nationals or citizens of the EU: - they can be referred to a shelter through CoMensha or a municipality. |
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Identification:
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According to the Government Decree No. 354/2012. (XII.13) on the identification order of victims of trafficking in human beings
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What are the signs of victimization? |
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A victim is detected on the basis of his or her account or on the basis of indicators and red flags that help identify signs of victimization. In Belgium, the national indicators for the identification of victims are contained in an official document made available to frontline responders. |
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Different organizations make use of different indicators. For a general (combined but non exclusive list) see http://www.wegwijzermensenhandel.nl/signalenvanmensenhandel.aspx |
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There is a "Checklist for the identification of victims of trafficking in human beings" (available only in German and French) that can be used by police officers, prosecuting authorities, and private or public victim counselling centers as a guideline. The checklist includes indicators regarding: A) Findings from the first contact: personal circumstances of the potential victim. B) Results of further clarifications - survey, documents, investigations on:
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Which authorities / organization take part in or are responsible for identification? |
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In order to effectively combat THB, close cooperation between different organizations is key. This organizational cooperation focuses on setting up barriers which should prevent criminals from being able to exploit their victims). In order for these barriers to be successful, the following parties have joined forces and are therefore responsible for, amongst other things, the identification of victims and situations of trafficking in human beings.
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Depending on the situation, identification can be done by
ACT212 runs a national human trafficking hotline, allowing private individuals to report over the internet or by telephone exploitative situations of all types. |
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What kind of factors need to be taken into account when a victim is identified? |
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No clear answer can be given as possible actions are tailored to the needs of the individual victims. First a victim will be asked about their primary needs and/or wishes and following the answers, the possibilities will be assessed and actions and referral will take place. |
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Factors generally depend on: actual and individual situation and state of mind/health of the victim at the moment of encounter
further factors:
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How / under what kind of circumstances should be a victim identified? |
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In relation to the identification of victims of trafficking in human beings, the police make use of several official guidelines which have been developed by law enforcement agencies in cooperation with the Immigration and Naturalization Service (IND), the Expertise Centre on THB and People Smuggling (EMM), the Royal Netherlands Marechaussee, and the Inspectorate SZW (the labour inspectorate and investigation service). The police can start the investigation any time there is the slightest indication of victimization by THB. In this investigation process, a potential victim is never officially identified as such as no official/legal criteria other than the “slightest indication” of trafficking in human beings exist. Nevertheless, if the police do not find any leads for a criminal investigation or prosecution, foreign victims can apply for a residence permit on humanitarian grounds. In this case, the Immigration and Naturalization service will review the situation of the victim again. |
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Approaching presumed trafficked persons:
A profound identification conversation should be done by specialized entities (police and NGOs). Other frontline responder should react first on the urgent and basic needs and refer to the specialized NGO who provides safe housing and support.
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Checklist? |
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II. First assistance and protection |
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What are the stages of assistance and protection? |
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Depending on their needs victims are taken to a shelter, where they will stay for a period that depends on both their individual needs and, when relevant, on the reflection period (which is three months long). When foreign victims receive a temporary residence permit, they move to follow up shelter or other suitable accommodation. If shelter is not desired by the victim they will be referred to a care coordinator and/or ambulatory care. Victims of trafficking are routinely informed about their rights to assistance, protection, compensation, medical assistance and legal advice. This happens both when they have been recognized as potential victims of trafficking for the first time and at different stages during their stay in the shelter and during the criminal proceedings. The law enforcement services, legal advisors, the NGO CoMensha, the Immigration and Naturalization Service and the shelters are all responsible for informing victims about their rights. Information is ideally provided in their mother tongue. Once information is provided it is necessary to determine what type of help is needed. This is important as the protection is based on three pillars, namely criminal prosecution, care services and stay based upon residence regulation for victims of trafficking in human beings (Chapter B8.3 Aliens Circular) which is also still available for EU victims of THB. First a needs and risk assessment will be conducted in order to determine the needs of the victim. The police conduct an initial risk assessment, but upon arrival at the shelter, different organizations running the shelters are responsible for the actual assessment. This assessment consists of:
During the needs assessment it is decided which care will be provided to the victim. Further information is available via www.wegwijzermensenhandel.nl |
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Most cantons have determined specific cooperation procedures to follow by actors involved in fighting THB at operational level once a victim has been identified.
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What kind of assistance is available for the victims if he/she stays in BE/NL/CH? |
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The assistance program offered by the three reception centres usually last two to three years. It is designed to support the victim from initial referral to the end of the judicial proceedings, and is focused on helping the client reach full autonomy and self-reliance. Individual support package -Case managers work with each victim to develop a customized support package to cope with trauma and support social reintegration. Residential Care –The victim is offered housing in the form of unidentified protected shelters or they can choose private accommodation and are offered floating support by the centre’s staff. Psychological Support –Victims receive psychological support and counselling to support the healing process. Legal Assistance – Legal advice and counselling, through the help of lawyers and interpreters, are offered to inform the client about his or her legal rights and obligations and to pursue cases against the perpetrators in the Belgian court system. Role in civil proceedings - The reception centres can take civil action either on their own behalf or on behalf of the victim. Administrative Support – The centre assists victims with their application for residence, work permits and travel documents, as well as paperwork for health care and other social services. Social inclusion - Case managers help victims develop a personal plan for their future in Belgium or in their home country, such as information on options available for continuing education, vocational training and job placement to facilitate integration into the Flemish or French-speaking regions, and they may also help clients find suitable housing once they leave the shelter. Assistance in Repatriation –The centres work closely with the International Organization for Migration (IOM), Caritas and recognized NGO referral networks to facilitate the safe repatriation of clients who wish to return to their country of origin. |
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This is customized to the situation the victim is in. This varies from an emergency shelter to long stay (GGZ) to a rapid return to the country of origin and from physical to mental to legal support. |
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If the victim has been exploited on Swiss territory she/he will receive assistance depending on her/his needs as stipulated by the Victim Assistance Act (mentioned above)
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Which authorities/ organizations take part in or are responsible for the initial assistance/protection of the victims? |
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The police are responsible for the initial risk assessment, but the needs assessment is carried out by the different care coordinators and/or ambulatory care. These different organisations are:
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Checklist? |
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Needs assessment: shelter placement, medical assistance, counselling, legal aid. Police protection, if necessary.
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III. Long-term assistance and social inclusion |
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Which authorities/organizations take part in or are responsible for the long- term assistance and social inclusion of the victims? |
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As the support to the victim is customized, the same organizations which are involved in the initial assistance are responsible for the follow- up (coordination), these being:
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What kind of safe accommodation/shelter is available for the victim in case he/she would like to stay in BE/NL/CH? |
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The three recognized reception centres offer housing in the form of unidentified protected shelters. Alternatively, victims can choose private accommodation and are offered floating support by the centre’s staff, but it is recommended that the victim be housed in a shelter if the alternative accommodation would be within the same milieu in which he or she has been abused or where he or she may be endangered. Case managers work with each victim to develop a customized support package to cope with trauma and support social reintegration. |
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There are shelters for:
The NGO CoMensha has also been given a budget to organize temporary shelter for victims of labour exploitation who do not need urgent care. These shelters can be divided into regular and specialized care. |
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Foundation Au Coeur des Grottes:
FIZ Advocacy and Support of Victims:
Further: FIZ Advocacy and Support for Victims offers social, psychological and legal assistance by its counselor staff, care staff in the safe shelters, psychological (focus PTSD) assistance, medical care, organizes financial support and support in criminal proceedings. According to the individual situation: Assistance for social and professional integration. FIZ Advocacy and Support for Victims is bound to professional confidentiality. No information is shared with the police without the victim’s consent. |
What kind of safe accommodation/shelter is available in HU? |
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Checklist? |
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Make a long-term assistance plan depending on the special needs and circumstances of the victim: accommodation, contact with his/her family, care for his/her child/ren, learning professionals, medical/legal/psychological aid, prepare to start a new, independent life (see more details: Guidelines for the Development of a Transnational Referral Mechanism for Trafficked Persons in Europe: TRM-EU, ICMPD, 2010. ) |
IV. Referral/return to Hungary |
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What are the steps involved in referring/returning a victim from BE/NL to Hungary? |
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Again this requires customized action based upon the victim’s situation. In any case, the following steps need to be taken:
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The State Secretariat for Migration (SEM) in cooperation with IOM offers a return assistance service for victims of trafficking
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Which authorities/organizations take part in or are responsible for the referral/return process of the victims? |
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Reception centre, law enforcement agencies and judicial authorities (risk assessment), Consular services (documentation), IOM (travel and reintegration). |
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The IOM, the different shelters working with the victims and organizations in Hungary which will be take over the care of the victim after their return. |
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What kind of factors need to be taken into account when a victim is referred to HU? (e.g. risk assessment) |
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There are different risks a victim faces while being referred back to Hungary. One of the risks is that the care cannot or will not be continued in Hungary. Another risk is the victim will disappear from view of the authorities. More worrisome is the situation when victims who are referred fall victim to re-victimization as the social and economic environment of the victim was the primary source for the initial victimization, and despite all help and efforts this has not changed. |
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How and under what kind of circumstances should be a victim referred? |
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The victim is referred when he or she may need assistance or wishes to receive assistance or faces threats in his or her place of origin. The shelter, law enforcement or judicial authorities in Belgium will make contact with relevant service providers and law enforcement in Hungary to ensure the safe return of the victim. |
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In case the victim is an EU citizen this takes place on a voluntary basis. The victim can remain in the Netherlands, but at some point access to social services will end and this is checked by the municipalities. A condition for this is that the victim cannot be involved in serious crime. |
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The details of returning home are included in the return plan: how and when the victim could go back home, who will wait for him/her and where, the route should be safe, does he/she need an escort? |
Checklist? |
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V. Criminal and civil proceedings |
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Overview of criminal and civil proceedings in BE, NL, CH and HU |
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Investigation - At the investigation stage, carried out by the Public Prosecutor or an investigating judge, evidence is gathered to establish whether a crime has been committed and whether the perpetrators can be identified. In Belgium, in human trafficking cases the statements released by victims are used as evidence. If the victim is no longer in the country, the public prosecutor or the investigating judge can interview him or her by videoconference or teleconference or in the country of origin by way of mutual legal assistance or through a Joint Investigation Team. Trial - As the result of an investigation, a case is either closed or referred to a court for trial. Sentence - During the trial the court will examine the body of evidence and determine whether the accused is proved guilty or not. Convicted traffickers in Belgium can be prescribed a prison sentence of 1 to 5 years and a fine of 500 to 50,000 EUR. The fine will be multiplied by the number of identified victims, which includes all victims, not only those who entered the programme. The fine will also be multiplied by the number of identified victims. Compensation - When the victim wants to seek financial compensation at the criminal trial, he or she has to file a civil claim in the criminal proceedings. Civil action also can be filed on behalf of the victim by the reception centre. The claim can refer to all kinds of damage suffered, such as physical injuries and related medical costs, moral damage, material damage, wages lost, etc. |
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When an official report is filed, an abusive situation detected or relevant information (either from a victim, first line official or an anonymous tip via M) is received an investigation is started. Within the national police force specialised THB units have been established which include highly skilled and certified detectives. This means that the police are both first level professionals, when they detect an exploitative situation while busy with surveillance or enforcement and second line officials to which possible victims are referred if another organization is responsible for the detection and the situation needs further investigation. When the police detect signs of victimization or a report is filed, the police will start their investigation. When this provides sufficient evidence, this is discussed with the public prosecution’s office and they decide to bring the case to court. The Public Prosecution Service (OM) and the courts together make up the judiciary. The Public Prosecution Service decides who has to appear before a court and on what charge. It is the only body that can decide to prosecute someone. When a case is not brought before the courts the victim has the right to ask another court to review the public prosecution decision with the help of article 52 of the criminal procedural law procedure. This court may decide to tell the public prosecution to continue their prosecution against the presumed perpetrator. Civil proceedings against the perpetrator or municipalities are possible but they need to be initiated by the victim, who is entitled to mandatory legal representation with the help of a pro bono solicitor and barrister or financial aid provided by the municipality on the basis of inability to pay. |
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How should be the victim assisted during the criminal and civil proceedings? |
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Victims are entitled to legal representation which is free of charge if they cannot afford it themselves.179 Besides this representation victims will be informed on the options to insert a civil claim against the trafficker(s) in a criminal procedure and to appeal to the victim compensation found. |
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Tools of the witness protection concerning Paragraph 96-98/A of Act No XIX of 1998 on Criminal Procedure:
According to the Section 51 (1) and (2) of Act No XIX of 1998 on Criminal Procedure:
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How should the victim be encouraged to report the crime? |
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Since most Hungarian victims want to return to their place of origin, it has been stressed that one important factor in encouraging victims to join the protection program is to guarantee the victim that he or she can return home with her victim status, with all the rights and benefits which the status implies in Belgium, from the country of exploitation to the country of origin, in line with the European Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. The “protection package’ should include:
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It all starts with raising awareness and increasing knowledge of the options and victims’ rights. The police play a crucial role and they should work with the victim taking into account their needs as well as their task of retrieving information. One of the ways this is being done is by conducting interviews on location. Gaining trust is key and this could be established with the help of Hungarian-speaking contacts who act as counsellors. |
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What are the reasons for victims refusing to participate in the criminal and civil proceedings and cooperate with the authorities? |
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Hungarian victims of sexual exploitation in Belgium:
Hungarian victims of labour exploitation in Belgium:
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The main reasons for victims’ unwillingness to cooperate with the authorities are fear of the perpetrator, fear that the direct family will find out what has happened and fear of social labelling and the fact victims are not allowed to resume work within (legal) sex-work/prostitution in the Netherlands. |
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Checklist? |
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The specific case of Switzerland[BE1]
[BE1]Itt kérték, hogy különítsük el egy kicsit a svájci részt
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