Child Sexual Abuse and Exploitation Proposal for a New EU Legal Framework

Child Sexual Abuse and Exploitation Proposal for a new EU legal framework INTRODUCTION Save the Children was established in 1919 and is at the forefront in the fight for the rights of the child. Save the Children is an international movement for children’s rights that currently comprises 27 organisations, spanning five continents and operating in over 120 countries. Save the Children has been active for many years in raising awareness about the issue of child abuse and has implemented programmes to combat child abuse in all its forms. Within this programme framework, Save the Children gives direct help to children who have suffered sexual abuse by providing support through appropriate therapeutic projects. The sexual abuse of children represents a serious violation of children’s rights. The advance of new technologies poses even greater concerns as perpetrators can easily exploit the technology for the acquirement, production and distribution of child abuse images. Since the mid 1990s six members of the Save the Children Europe group have been engaged in combating the digital distribution of images depicting the sexual abuse of children and in raising awareness about child sexual abuse and exploitation via the internet and other new technologies. These organisations have worked together to implement hotlines, awareness raising campaigns and advocacy activities calling for increased and improved efforts at national and international levels to fight sexual abuse of children and the production and distribution of child abuse material. One of the major difficulties in combating child sexual abuse and the commercial sexual exploitation of children via the internet is the international, multi-jurisdictional nature of the crime and its cross border activity. The Member States of the European Union (EU) have taken steps to tackle this problem, especially through the EU Framework Decision on child sexual abuse and exploitation (“EU Child Sexual Abuse Framework Decision”) by defining, for example, what constitutes child pornography, and by attempting to harmonize legislation on the imposition of sentences within national penal codes. 1 The European Union has also agreed that the protection of children includes all citizens up to the age of eighteen. 2 1 Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography (2003) OJ L13/44; Council Decision of 29 May 2000 to combat child pornography on the Internet OJ L 138/1. 2 This is in line with the UN Convention on the Rights of the Child definition of a child, which defines a “child” as being “every human being below the age of eighteen”. - 1 - BRU 12676-1.099749.0251 Save the Children welcomes the advances made by the EU in this area. However efforts have to be redoubled to ensure that effective measures are taken to tackle these crimes against children. Furthermore, Save the Children considers that the focus of attention should start with the protection and rehabilitation of children who are at risk or who have been subjected to sexual abuse. However, the approach to date has been a criminal justice one with the focus being on the offender more so than on the victim. 3 Save the Children recalls that the Member States resolve in the EU Treaty to “ensuring the safety and security of their peoples by establishing an area of freedom, security and justice”. The time has come to place the protection of citizens, and in particular children, at the heart of the European Union’s strategy. Steps to move forward in this direction have been made by the new Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (“CoE Convention”), which is similar in many respects to the EU Child Sexual Abuse Framework Decision but takes a much broader and holistic approach. It covers areas not dealt with by the EU Child Sexual Abuse Framework Decision and openly prioritises child protection. Save the Children considers that there is an important difference in the CoE Convention as the CoE Convention provides measures to prevent the abuse or sexual exploitation of children, and to identify and protect victims, whereas the EU Child Sexual Abuse framework Decision is silent on these subjects focussing instead on punishment of the offender. Save the Children believes that EU legislation must improved to develop a more effective up-to-date legal framework in terms of child protection. Victim identification should be key to any new proposals for the Framework Decision. Save the Children believes that the EU Framework Decision forms a valid basis and considers the new CoE Convention to be a useful model but one which can also be improved upon. This report outlines existing EU legislation on combating the sexual exploitation and abuse of children, identifies gaps and makes recommendations towards the improvement of the current legislation in this area. 4 Save the Children provides solutions to these gaps in the current legislation drawing from not only the CoE Convention but also from the approaches in other EU instruments to tackle cross border crime and protect citizens. 3 However, recitals 5, 6,10, 11 and 12 of the Framework Decision state that the legislation addresses specific needs of victims. 4 Visible Evidence Forgotten Children Launch Report (2007); Visible Evidence Forgotten Children (2006); and Save the Children Position Paper regarding on-line images of sexual abuse and other Internet-related sexual exploitation of Children (August 2005 Update). - 2 - BRU 12676-1.099749.0251 Section 1: Legal Basis for Legislation The Council Framework Decision on combating the sexual exploitation of children and child pornography (EU Child Sexual Abuse Framework Decision) is enacted having regard to Article 29 5, Article 31(1)(e) 6 and Article 34(2)(b) 7 of the EU Treaty. Article 29 EU sets out the objective of the European Union as being “to provide citizens with a high level of safety within an area of freedom, security and justice”. The primary goal of the EU Treaty, therefore, is to protect citizens with the protection of children being specifically identified as one of the Union’s objectives. This, according to Article 29 EU, is to be achieved by “preventing and combating crime” through closer cooperation between police forces and other competent authorities and through the European Police Office (Europol) and/or Eurojust. It may also involve approximation of rules on criminal matters. Therefore Article 29 EU enables the European Union to take measures to protect children which enhance co-operation between the appropriate authorities and to adopt legislation relating to criminal matters relating to the abuse of children. Article 31(1)(e) EU enables the EU to adopt minimum rules relating to the constituent elements of criminal acts and to penalties on particular crimes. 5 Article 29 EU states: “Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia. That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children , illicit drug trafficking and illicit arms trafficking, corruption and fraud, through: - closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32; - closer cooperation between judicial and other competent authorities of the Member States in accordance with the provisions of Articles 31(a) to (d) and 32; - approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e).” (own emphasis) 6 Article 31(1)(e) EU states: “Common action on judicial cooperation in criminal matters shall include: [...] progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.” 7 Article 34(2) EU: “The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this Title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may: […] adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect.” - 3 - BRU 12676-1.099749.0251 Article 34(2)(e) EU enables the EU to adopt framework decisions to implement these policies. These provisions are at the heart of the legislation to protect children against sexual exploitation. The recommendations made by Save the Children accord with these legal provisions. Save the Children also considers that other provisions of the EU Treaty may also be relevant for the legal basis of the instrument in order to make it more effective. In particular, Save the Children considers that Article 31 EU generally could also be applied rather than relying on specific provisions of the article. Article 31 EU formed the legal basis of legislation permitting the exchange of information extracted from criminal records and is the legal basis for the European Evidence Warrant. Likewise, this provision could facilitate the exchange of information regarding the potential criminal cases relating to child sexual abuse cases and child sexual abuse images (child pornography).

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