Fighting sexual violence: Council of Europe legal instruments

1. Fighting sexual violence:Council of Europe legal instruments Ksenija Turković Professor of Criminal Law Faculty of Law, University of Zagreb

2. Worst forms of violence against children • 2, 000 000 children are used in the sex industry each year (UNICEF) • There are more than 1, 000 000 images of some 10-20 thousand sexually abused children posted on the Internet • There are no statistics on the total amount of sexual abuse of children in Europe • Discrepancy between the number of reported and actual cases

3. Review of the existing international documents • The United Nations Convention on the Rights of the Child (art. 34) • The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography • International Labour Organisation Convention 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour • The European Social Charter (revised) • The Convention on Protection Against Sexual Exploatation & Sexual Abuse • The Convention on Cyber crime (art. 9) • The Council of Europe Convention on Action against Trafficking in Human Beings • The Council of Europe Convention on the Exercise of Children’s Rights • Recommendation No. R (91) 11 concerning sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults • Recommendation Rec(2001)16 on the protection of children against sexual exploitation • Recommendation Rec (2006) 8 on assistance to victims of crimes • The Council of the European Union Framework Decision on combating the sexual exploitation of children and child pornography • The Council of the European Union Framework Decision on the standing of victims in criminal procedures • The Stockholm Declaration and Agenda for Action • The Yokohama Global Commitment • The Budapest Commitment and Plan of Action

4. Purposes of the Documents • to promot the well being & best interest of any child • to prevent and combat sexual exploitation and sexual abuse of children; • to protect the rights of child victims of sexual exploitation and sexual abuse; • to promote national and international co-operation against sexual exploitation and sexual abuse of children.

5. Definitions • “child” - any person under the age of eighteen years • “victim” - any child subject to sexual exploitation or sexual abuse

6. Content • Substantive criminal law (offences, sanctions, aggrevated circumstances) • Procedural law (child friendly justice – rights of victims, protective measures, assistance to victims, position before, during & after proceedings) • Preventive measures • Specialised authorities and co-ordinating bodies • Intervention programmes or measures • Recording and storing of data • International co-operation

7. Substantive criminal lawOffences • “sexual exploitation and sexual abuse of children”: • Sexual abuse (18 CSESAC), • Child prostitution (19 CSESAC) • Child pornography (20 CSESAC, 9 CCC) • Child pornographyc performances (21 CSESAC) • Corruption of children (22 CSESAC) • Solicitation of children for sexual purposes (23 CSESAC) • Sexual slavery • Sexual tourism (double criminality rule not required) • Trafficing in children (18 CAaTHB)

8. Sexual abuse (18 CSESAC) • legal age for sexual activities left open • must incriminate coercion, abuse of trust/authority, abuse of voulnerable situation (e.g. disability) • does not govern consensual sexual activities between minors • Child prostitution (19 CSESAC) • recruiting, causing to participate, coercing, profiting from exploatation • having recaurse (clients) • payment or other consideratin given or promissed to child or third person

9. Child pornography (20 CSESAC, 9 CCC) • Producing, offering or making available, distributing or transmitting, procuring for oneself or for another person;possessing,knowingly obtaining access through information and communication technologies(reservation) • any material that visually depicts a child engaged in real or simulated sexually explicit conduct or any depiction of a child’s sexual organs for primarily sexual purposes(definition) • simulated representations or realistic images of a non-existent child(reservation) • excluded materials produced and possessed by children with theirconsent and solely for their own private use

10. Child pornographyc performances (21 CSESAC) • recruiting or causing a child to participate;coercing a child or profiting from or otherwise exploiting a child • knowingly attending pornographic performances involving the participation of children (reservation) • Corruption of children (22 CSESAC) • intentional causing, for sexual purposes, of a child who has not reached the legal age for sexual activities to witness sexual abuse or sexual activities, even without having to participate

11. Solicitation of children for sexual purposes (23 CSESAC) • intentional proposal, through information and communication technologies, of an adult to meet a child who has not reached the legal age for sexual activities for the purpose of committing any of the above offences where this proposal has been followed by material acts leading to such a meeting.

12. Sanctions • Natural persons • Deprivation of liberty • Other measures • Withdrawal of parental rights • Monitoring & supervision of perpetrator • Legal entities • exclusion from entitlement to public benefits or aid; • temporary or permanent disqualification from the practice of commercial activities; • placing under judicial supervision; • judicial winding-up order • Both • Seizure & confiscation • The temporary or permanent closure of an establishment

13. Aggrevating circumstances • the offence seriously damaged the physical or mental health of the victim; • the offence was preceded or accompanied by acts of torture or serious violence; • the offence was committed against a particularly vulnerable victim (victim of trafficing – 19 CAaTHB)); • the offence was committed by a member of the family, a person cohabiting with the child or a person having abused his or her authority; • the offence was committed by several people acting together; • the offence was committed within the framework of a criminal organisation; • the perpetrator has previously been convicted of offences of the same nature • the offence was committed by public official (trafficing)

14. Preventive measures • Awairness raising of general public (children rights, forms of abuse and exploatation) • Recruitment (persons convicted for these crimes could not be admitted to work place in which they would have regular contacts with children) & training • Education of children (potential risks and ways to avoid them– sexual education) • Prevent or prohibit the dissemination of materials advertising the offences • Preventive intervention programs or measures • Research • Border measures, security & control of documents

15. Specialised authorities and co-ordinating bodies • institutions for the promotion and protection of the rights of the child(e.g. ombuds. for children) • focal points - observing and evaluating the phenomenon of sexual exploitation sexual abuse of children

16. Intervention programmes or measures • Relaps prevention programs (right to consent/refuse)

17. Recording and storing of data • Collecting & storing data relating to the identity and to the genetic profile of convicted person • Single national authority in charge of that

18. International co-operation • Victims may make a complaint before the competent authorities of their state of residence • Mutual legal assistance in criminal matters or extradition • Integrate prevention and the fight against sexual exploitation and sexual abuse of children in assistance programmes • Transfer info. on endangerment (trafficing)

19. Child Friendly Justice • Encourage reporting; remove confidentiality rule • Jurisdiction over nationals is not subordinate to the condition that the acts are criminalised at the place where they were performed • Ex officio proceedings • Statute of limitation prolonged • Uncertainty about the age should not prevent investigation • Possibility of covert operations

20. Treating children with dignity & compassion • The right to be informed • About their rights, services • Release of the perpetrator • On ct. proceedings and available remedies • Adopted to their maturity; in appropriate language • The right to be heard and express views and concerns • Access to criminal proceedings (access to records) • Representation of children before the court (guardian ad litem, legal counsel) • Expressing views and concerns (translation, special communicator)

21. The right to protection from hardship during justice process • Adult attendant • Multidisciplinary child abuse teams • Forensic interviewing (without delay; special premisses, specially trained professionals,same person) • Closing the courtroom • Alternatives to live, in court testimony • Avoid meetings with perpetrator • Organisation of the court premisses • The right to effective assistance • Speical representative • Legal counsel free of charge • Represented by NGOs, foundations, groups, etc.

22. Protection of privacy • Closed trials • Details not made publicly known – acces to records • Encourage self-regulation of media • The right to assistance & safety • Establish specialized victim assistance services, helplines • Assistance to victims and close persons (financial, medical, psychological, emotional) • Special protective measures (removing alleged perpetrator/victim from the family) • Identify faimily, if it is in the best interesto of the child • If not national still should have acess to labor market & education • Not conditional on willingness to act as witness • Child victims shall not be returned to a State, if there is indication, following a risk and security assessment, that such return would not be in the best interests of the child

23. Speedy trial • The right to reparation, recovery & social integration • Simplification of procedures • Use of informal and community justice procedures • Special preventive measures • Permit exercise of discretionary power at all levels of juvenile justice administration

24. Added Value • New crimes introduced • participation of child in pornographic performances, • corruption of children, • solicitation of children for sexual purposes • The scope of traditional offences is widened or more precisely defined • clients incriminated for prostitution; • refers to all types of pornography not only computor based • intentional access to porno. material on Internet/by use of IT is punishable • simulated presentations of nonexistant chyildren deemed pornography • Aggrevating circumstances defined • abuse of children within family • abuse of voulnerable children • Period of limitation is extended(leave children enough time after becoming of legal age to sue)

25. Definition of jurisdiction – no double criminality is required • Taking of parental rights – defined as sanction • Number of measures for the protection of child victims & witnesses is introduced • The use of covert operations during investigations is possible • The criminal proceedings must be officially instigated • Report of these crimes does not constitute violation of professional secrecy • Database of perpetrators should be established

26. Focal points for the collection of data & research should be established • Persons convicted for these crimes could not be admitted to work place in which they would have regular contacts with children • Intervention programs for perpetrators & potential perpetrators of these crimes should be introduced (consent/refusal) • Training should be provided to all kinds of professionals coming in contact with children • Data and info. on potential risks and ways to avoid them should be disseminated among children (through sexual education preferably)

27. Thank you for your attention