35 See Bryant, R., Stein, M.B., and Hermann, R., “Treatment of Acute Stress Disorder in Adults” (2014) UpTo-Date Topic 16867.
36 See, further, Bryant, R.A., Creamer, M., O’Donnell, M., Silove, D., McFarlane, A.C., and Forbes, D., “A Comparison of the Capacity of DSM-IV and DSM-5 Acute Stress Disorder Definitions to Predict Post-traumatic Stress Disorder and Related Disorders” (2015) 76(4) Journal of Clinical Psychiatry 391–397.
37 See, for example, Bradley, R., Greene, J., Russ, E., Dutra, L., and Westen, D., “A Multidimensional Meta-analysis of Psychotherapy for PTSD” (2005) 162(2) American Journal of Psychiatry 214–227; and Cloitre, M., “Effective Psychotherapies for Posttraumatic Stress Disorder: A Review and Critique” (2009) 14(1 Suppl 1) CNS Spectrums 32–43.
38 See, further, Foa, E.B., Gillihan, S.J., and Bryant, R.A., “Challenges and Successes in Dissemination of Evidence-based Treatments for Posttraumatic Stress: Lessons Learned From Prolonged Exposure Therapy for PTSD” (2013) 14(2) Psychological Science in the Public Interest 65–111.
39 NICE, Clinical Guideline 26. Post-traumatic Stress Disorder (PTSD): The Management of PTSD in Adult and Children in Primary and Secondary Care (London: NICE, 2005); Bisson, J.L., Ehlers, A., Matthews, R., Pilling, S., Richards, D., and Turner, S., “Psychological Treatments for Chronic Posttraumatic Stress Disorder. Systematic Review and Meta-analysis” (2007b) 190 British Journal of Psychiatry 97–104.
40 See Robjant, K., and Fazel, M., “The Emerging Evidence for Narrative Exposure Therapy: A Review” (2010) 30(8) Clinical Psychology Review 1030–1039.
41 Schauer, M., Neuner, F., and Elbert, T., Narrative Exposure Therapy: A Short-Term Treatment for Traumatic Stress Disorders (Göttingen, Germany: Hogrefe Publishing, 2011).
42 Nijdam, M., Gersons, B., Reitsma, J., de Jongh, A., and Olff, M., “Brief Eclectic Psychotherapy v. Eye Movement Desensitisation and Reprocessing Therapy for Post-Traumatic Stress Disorder: Randomised Controlled Trial” (2012) 200 British Journal of Psychiatry 224–231.
43 Arntz, A., “Imagery Rescripting as a Therapeutic Technique: Review of Clinical Trials, Basis Studies, and Research Agenda” (2012) 3 Journal of Experimental Psychopathology 189–208.
44 Shapiro, F., “Eye Movement Desensitization: A New Treatment for Post-traumatic Stress Disorder” (1989) 20 Journal of Behaviour Therapy and Experimental Psychiatry 211–217.
45 See, further, Van den Hout, M.A. and Engelhard, I.M., “How Does EMDR Work?” (2012) 2 Journal of Experimental Psychopathology 724–738; and Greenberg, N., Brooks, S., and Dunn, R., “Latest Developments in Post-traumatic Stress Disorder: Diagnosis and Treatment” (2015) 114(1) British Medical Bulletin 147–155.
46 Shapiro, F., “Eye Movement Desensitization: A New Treatment for Post-traumatic Stress Disorder” (1989) 20 Journal of Behaviour Therapy and Experimental Psychiatry 211–217; Cusack, K., Jonas, D.E., Forneris, C.A., Wines, C., Sonis, J., Middleton, J.C., Feltner, C., Brownley, K.A., Olmsted, K.R., Greenblatt, A., Weil, A., and Gaynes, B.N., “Psychological Treatments for Adults With Posttraumatic Stress Disorder: A Systematic Review and Meta-analysis” (2016) 43 Clinical Psychology Review 128–141; Jonas, D.E., Cusack, K., Forneris, C.A., Wilkins, T.M., Sonis, J., Middleton, J.C., Feltner, C., Meredith, D., Cavanaugh, J., Brownley, K.A., Olmsted, K.R., Greenblatt, A., Weil, A., and Gaynes, B.N., “Psychological and Pharmacological Treatments for Adults With Posttraumatic Stress Disorder (PTSD)” (2013) 92 Comparative Effectiveness Reviews 5.
47 See Newman, M.G., Szkodny, L.E., Llera, S.J., and Przeworski, A., “A Review of Technology-assisted Self-help and Minimal Contact Therapies for Anxiety and Depression: Is Human Contact Necessary for Therapeutic Efficacy?” (2011) 31(1) Clinical Psychology Review 89–103.
48 Cloitre, M., “Effective Psychotherapies for Posttraumatic Stress Disorder: A Review and Critique” (2009) 14(1 Suppl 1) CNS Spectrums 32–43.
49 See Dorrepaal, E., Thomaes, K., Hoogendoorn, A.W., Veltman, D.J., Draijer, N., and van Balkom A.J.L.M., “Evidence-based Treatment for Adult Women With Child Abuse-related Complex PTSD: A Quantitative Review” (2014) 5 European Journal of Psychotraumatology 10.3402/ejpt.v5.23613.
50 Bradley, R., Greene, J., Russ, E., Dutra, L., and Westen, D., “A Multidimensional Meta-analysis of Psychotherapy for PTSD” (2005) 162(2) American Journal of Psychiatry 214–227.
51 Abas, M., Ostrovschi, N., Prince, M., Gorceag, V., Trigub, V., and Oram, S., “Risk Factors for Mental Disorders in Women Victims of Human Trafficking: A Historical Cohort Study” (2013) 13 BMC Psychiatry 204.
52 Van Minnen, A., Harned, M.S., Zoellner, L., and Mills, K., “Examining Potential Contraindications for Prolonged Exposure Therapy for PTSD” (2012) 3 European Journal of Psychotraumatology 10.3402/ejpt.v3i0.
53 Ibid.
54 See Cloitre, M., “The ‘One Size Fits All’ Approach to Trauma Treatment: Should We Be Satisfied?” (2015) 6 European Journal of Psychotraumatology 10.3402/ejpt.v6.27344.
55 ICD-11 –www.who.int/classifications/icd/revision/en.
24
National Referral Mechanisms
Jyothi Kanics
Introduction
This chapter explains how the concept of the National Referral Mechanism (NRM) developed in policy and law over the past decade. It also examines some specific challenges that States, civil society actors, and International Organisations have faced in implementing and monitoring NRMs in practice. It draws attention to the need for better coherence and improved co-ordination between NRMs and existing national child protection systems and national asylum systems. Furthermore, it seeks to demonstrate why taking a human rights-based approach to implementing NRMs is not only in keeping with the original NRM concept elaborated a decade ago, but is also essential to creating trust among the actors involved, and to securing the dual aims of the NRM in pursuit of both prosecution and protection.
National Referral Mechanism: a framework for inter-agency co-operation
Following the adoption of the Palermo Protocol1 in 2000, many governments took a law enforcement approach to preventing and combatting trafficking. The human rights community raised concerns that such measures often violated the rights of migrants and victims of trafficking. Non-governmental organisations such as La Strada and Anti-Slavery International documented case studies and proposed recommendations in order to raise awareness and to demonstrate how a victim-centred human rights-based approach could be complementary to a law enforcement approach.2 A human rights-based approach is about “empowering people to know and claim their rights and increasing the ability and accountability of individuals and institutions who are responsible for respecting, protecting and fulfilling rights”.3
Based on such recommendations and good practice evidence, the Office for Democratic Institutions and Human Rights of the OSCE published National Referral Mechanisms: Joining Efforts to Protect the Rights of Trafficked Persons, A Practical Handbook (Handbook) in 2004. The Handbook4 defined the concept of an NRM, outlined its key components, cited good practices, and explained its importance, as well as how it should be implemented.
According to the Handbook: “a NRM 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 strategic partnership with civil society”.5
NRMs are established to ensure respect for the rights of trafficked persons, and to provide an effective way of referring them to services and protection.6 Therefore, an NRM should incorporate several components, including: guidance on the identification and treatment of trafficked persons; a system for referral to specialised agencies and support services; a multi-disciplinary and cross-sector institutional framework responsible for co-ordination, monitoring, and evaluation; and the establishment of appropriate, officially binding mechanisms designed to harmonise victim assistance with investigative and prosecutorial efforts.7
An NRM is a structure comprised of an institutional anti-trafficking framework, as well as
an on-going process, where the situation is assessed and capacity built. In a functioning NRM, monitoring and evaluation should lead to changes in policy, legislation, and practice.
The OSCE Action Plan to Combat Trafficking in Human Beings (2003)8 recommends that, among other measures, States establish NRMs by creating a co-operative framework between law enforcement and civil society, with the aims of harmonising victim assistance with investigative and prosecutorial efforts; providing guidance for the accurate identification and appropriate treatment of trafficked persons; and establishing cross-sector and multi-disciplinary teams to develop and monitor policies.
National Referral Mechanisms in European law and policy
As the OSCE developed the NRM in its policy documents, and assisted governments and civil society partners to implement it over the past decade, the EU and the Council of Europe (CoE) subsequently enshrined key components of the NRM concept in policy and law.
European Union law
The EU recognises trafficking as a human rights violation – which is another argument for taking a human rights approach to address it. The EU Charter of Fundamental Rights clearly prohibits trafficking in human beings.9 The Lisbon Treaty commits the EU to developing a common immigration policy, which should include “the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings”.10 Additionally, the EU must ensure security
through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.11
The EU Trafficking Directive obliges Member States to “establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with relevant support organisations”.12 As the Joint UN Commentary13 on the Trafficking Directive emphasises, the Directive takes a victim-centred human rights approach and reflects many existing obligations of Member States under international human rights law.
According to Recital 18 and Article 11 of the Trafficking Directive, a person should be provided with assistance and support as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been trafficked, irrespective of his or her willingness to act as a witness. There needs to be more analysis regarding how the reasonable-grounds indication is applied in practice. In particular, authorities should be alerted if monitoring shows that it creates a barrier to accessing necessary legal aid and services, which could help confirm the initial victim identification.
In addition to the Trafficking Directive, the EU Victims’ Directive14 calls on Member States to facilitate referrals from the police to victim support services to ensure that all victims are given equal access to victim support services.15 The Platform for International Cooperation on Undocumented Migrants (PICUM) has been raising awareness16 that the transposition of the Victims’ Directive is an opportunity to advance justice for undocumented migrants, including trafficked persons, who have been exploited. The Directive’s provisions, which seek to ensure access to justice for all victims of crime, including undocumented and trafficked persons who have been exploited, require legal and practical changes that will improve the functioning of NRMs.
In its Guidance Document on the transposition of the Victims’ Directive,17 the European Commission (EC) invites Member States to consider:
Paying particular attention to inter-agency co-operation. It is of utmost importance to ensure horizontal collaboration and coherence between police, judicial authorities and victim support organisations, when they are dealing with a victim’s case in order to minimize the burden upon the victim. Ensuring that rights set out in this Directive are not made conditional on the victim having legal residence status in their territory or on the victim’s citizenship or nationality. Thus, third country nationals and stateless persons who have fallen victims of crime on EU territory as well as victims of crime committed extra-territorially in relation to which criminal proceedings are taking place within the EU must benefit from these rights. Current practice from some Member States shows this can be achieved by adapting appropriate immigration rules, for example, by suspending deportation orders and/or issuing temporary residence permits in relation to on-going criminal proceedings.18
Indeed, many European governments have already adopted measures to grant temporary residence permits to migrants who are victims of human trafficking, or who have been smuggled, and who co-operate in the fight against these crimes in line with the Directive on Temporary Residence Permits.19 Other countries also provide a reflection and recovery period (and temporary residency permits) as required by the Council of Europe Convention on Action against Trafficking in Human Beings.20 As noted in the European Commission’s Communication on the application of the EU Directive on Temporary Residence Permits,21 in many cases a permit is provided with no obligation for the trafficked person to co-operate with the investigation. In addition, some EU Member States either do not make permits conditional upon co-operation,22 or allow exceptions to this requirement based on the victim’s personal circumstances.23 Some Member States apply more favourable conditions to children, such as longer reflection periods and unconditional residence permits.24 Legal provisions allowing for a reflection period and temporary residence are considered an important part of a functioning NRM because such measures permit irregular trafficked persons to regularise their immigration status and to have greater access to justice, services, protection, and support.
Regarding inter-agency co-operation and the provision of information and services to victims, the EC Guidance Document recommends a more structured approach to inter-agency co-operation and to the establishment of national referral arrangements.25 The EC highlights the good practice of a “one-stop-shop victim agency”, which serves as the main contact for victims and is responsible for keeping the victim informed, liaising between the victim and all authorities and agencies involved. It should address victims’ multiple needs when involved in criminal proceedings; including the need to receive information, assistance, support, protection, and compensation.26 Such a model is also promoted by Article 18.3 of the Council of Europe Convention on preventing and combating violence against women and domestic violence,27 which obliges parties to ensure that measures taken allow, where appropriate, for a range of protection and support services to be located on the same premises. As noted in the Explanatory Memorandum to the Convention,28 such “one-stop-shops” have been tried and tested for domestic violence services, but can easily be adapted to support victims of other forms of violence. Similarly, the European Commission suggests that the approach could be adapted to victims of other types of crime, such as trafficked persons.29 This approach is recognised as good practice and relevant for a functioning NRM because it ensures close co-ordination between specialised victim-centred services in a single location, avoiding multiple referrals and unnecessary multiple interviews and re-traumatisation.
For children, ‘Barnahus’, or Children’s Houses, are already operating for victims of sexual abuse and violence in several European countries, and are recognised as good practice by Save the Children and other child rights advocates.30 In Children’s Houses, social services, police, prosecutors, judges, and medical professionals work under one roof in order to provide children with access to justice, to avoid re-victimisation, and to ensure high professional standards for recovery. With the aim of promoting and strengthening such models of child-friendly multi-disciplinary and inter-agency services, which support child victims of violence, the Council of Baltic Sea States and its partners have initiated the PROMISE project.31
Finally, the PICUM Checklist32 is also a useful tool for raising awareness and for comparing national laws to the provisions of the Victims’ Directive. The checklist provides a template for mapping whether specific measures are in place, such as police reporting, access to justice,
shelter, and support services. Such measures are crucial to the functioning of an NRM – as they would allow trafficked persons with irregular status to report crimes to the authorities – and to ensuring access to justice as well as referral to protection and services. Finally, the Handbook for Implementation of Legislation and Best Practice for Victims of Crime in Europe33 provides further guidance concerning protection of victims of crimes, including trafficking in human beings.
European Union policy
Such significant EU legislative reform, which seeks to provide protection to trafficked persons, is built upon policy debates informed by programme evidence and the advocacy efforts of experts. In 2004, the European Commission’s Group of Experts on Trafficking in Human Beings (EEG) produced a report which recommended that EU Member States should establish NRMs to ensure the proper identification and referral of trafficked persons, including trafficked children, and to ensure that they receive adequate assistance while protecting their human rights.34
The OSCE ODIHR concept of an NRM was included in an explanatory paper35 published with the EEG report, and was reflected in the report’s recommendations. In line with the OSCE ODIHR Handbook, the EEG recommended that an NRM should incorporate:
[G]uidelines on the identification and treatment of trafficked persons, including specific guidelines and mechanisms for the treatment of children to ensure that they receive adequate assistance in accordance with their needs and rights;
[A] system to refer trafficked persons to specialised agencies offering protection and support;
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