Doc. 8076: Abuse and neglect of children
Doc. 8076
24 April 1998
Abuse and neglect of children
Opinion
Committee on Legal Affairs and Human Rights
Rapporteur: Mrs Ivana Plechatá, Czech Republic, European Democratic Group
1. Not so long ago, in September 1996, the Assembly adopted Resolution 1099(1996) on the sexual exploitation of children, at the proposal of the Committee on Legal Affairs and Human Rights (see Appendix I). At the same time, the Assembly adopted Order 526 (1996) in which it instructed its Social, Health and Family Affairs Committee to prepare a detailed report on sexual violence against children, incest, sexual exploitation of children, and child prostitution and pornography in Council of Europe member States. It is to the merit of that Committee that it has dealt with these questions in a short time and that it is now laying before the Assembly a report on the abuse and neglect of children (Doc 8041), to be discussed by the Assembly at its April 1998 part-session. This report contains a draft recommendation and a draft order.
Draft recommendation on the abuse and neglect of children
2. Perhaps I should make a preliminary remark on the draft recommendation and its length. The draft recommendation covers seven full pages and is very detailed. It is therefore too long and much of the detailed information and requests to the Committee of Ministers it contains could have been reproduced in the explanatory memorandum. One cannot possibly expect the Committee of Ministers to give a reply to all of the items listed in these seven pages. It is contrary to the Assembly's policy and tradition to make recommendations of such length. Yet, having said this, the length of a recommendation is in itself of course not a reason to oppose it, especially since the proposals made are likely to meet to a large extent with the agreement of the Committee of Ministers. In addition, they are very timely, given the fact that a major follow-up European conference to the 1996 World Congress on the Fight against Commercial Sexual Exploitation of Children will take place in Strasbourg on 28-29 April 1998.
3. One of the main proposals of the draft recommendation is to be found in its paragraph 14.ii where it is recommended to the Committee of Ministers to "organise judicial cooperation between Council of Europe member States in order to punish recidivist sex offenders, by drawing up, in conjunction with the Parliamentary Assembly, a Council of Europe Convention setting up a register of convictions for offences against minors". This proposal is further elaborated in litere a), b), c) and d) of this sub-paragraph.
4. This proposal has the broad support of the Committee on Legal Affairs and Human Rights. However, one should not forget that the elaboration and adoption of such an international convention is a long-term project and that the setting up of an international register on sex offenders against children might be an even more demanding procedure.
5. Most of the Council of Europe member States have ratified the Council of Europe Convention on Mutual Assistance in Criminal Matters of 1959 and its additional protocol of 1978, which provide for the exchange of information on sentences in force and additional relevant information such as the content of judgments. Thus contracting parties may learn of convictions for sexual abuse of minors and take appropriate measures. The Convention obliges contracting States to transmit to other contracting parties the relevant data which are included their own national criminal registers. It is therefore very important that all member States of the Council of Europe ratify the Convention and fully apply it as well as its additional protocol.
6. Perhaps an additional observation may be made here. Although judges in most Council of Europe member States may take previous condemnations into account this is not necessarily the case everywhere. If my information is correct, under English law judges are not systematically told of previous convictions because it is felt this might influence the judge when taking his decision.
7. In conclusion, the Committee on Legal Affairs and Human Rights largely supports the draft recommendation submitted by the Social, Health and Family Affairs Committee, but would like to propose the following amendments, with a view to strengthening the text:
Amendment a)
- Paragraph 10
Replace the words "from a legal point of view, recidivism is deemed to occur only" by
"under the law of a certain number of Council of Europe member States offenders are only considered as recidivists"
Explanation: In a number of Council of Europe member States courts are allowed to take offences committed abroad into account. The wording above should therefore be less absolute.
Amendment b)
- Paragraph 13.b.iii
Replace this paragraph by the following text:
"by making the possession and the trade of pornographic pictures of children criminal offences, since they entail denial of children's rights to respect of their privacy and image."
Explanation: The possession of pornographic pictures of children and their trade is indeed ghastly, but there is a distinction which the law must take into account.
Amendment c)
- Paragraph 13.c.i.
From a social, but also from a legal point of view, there is a difference between prostitution, rape and sexual abuse (of minors) and criminal law must draw a distinction between these offences. In most of our member States, the age of consent is 14 to 16 years, which means that minors over that age must be regarded as consenting parties. It would, for instance, be incorrect to convict a "client" of a young woman of consenting age, who could not be considered to have been submitted to any violence, rape or sexual abuse.
It is therefore suggested to delete this sub-paragraph and replace it by paragraph 13.c.iv, which should have the following wording:
"by considering how to punish as criminal offenders the clients of child prostitution and all those (brothel-keepers, travel agents and others) who promote child prostitution;"
Amendment d)
- Paragraph 13.f.i.
The Committee on Legal Affairs and Human Rights fully agrees with the underlying reasoning of this paragraph. It is very harmful to a young child to be questioned on this kind of matter and such questioning will revive a very terrible event which may have happened months ago and may possibly have been forgotten to a large extent. One should therefore restrict such questioning to a minimum, but the word "absolute" in this respect goes too far and is a pleonasm anyway. One also has to take the rights of the defence into account and a confrontation between the accused (who may be innocent) and the victim may prove necessary in the course of criminal proceedings, as well as the answering of some questions put to the victim by the judge, prosecutor or by the defence counsel.
It is therefore proposed to delete the word "absolute" in this sub-paragraph.
Amendment e)
- Paragraph 13.f.ii
The question of the statutory limitation of offences should be left to national law, but it is obvious that victims should have some time after reaching the age of majority to take legal action and that statutory limitation should therefore not take place when they are still minors.
It is proposed to replace this sub-paragraph by the following text:
"by ensuring that periods of statutory limitation for reporting any offence by the victims should be long enough to enable victims to take legal action after reaching the age of majority."
Amendment f)
Paragraph 13.i.ii.
In the opinion of the Committee on Legal Affairs and Human Rights this sub-paragraph is rather pointless, since under practically all national legislation parents who refuse or forego vital care can be prosecuted.
It is therefore proposed to delete this sub-paragraph.
Preliminary draft order on international adoption
8. International adoption undeniably has social aspects which could justify a study by the Social, Health and Family Affairs Committee. However, it has also important legal aspects. Adoption normally takes place after judicial procedures and the adoption is normally pronounced by a court decision in our member States. In the case of international adoption there is the problem of the international validity of the court decisions, there are nationality problems and, possibly, other legal questions which fully justify that the Committee on Legal Affairs and Human Rights also be given an opportunity to express itself.
9. For that reason, it is proposed to add the words "Committee on Legal Affairs and Human Rights and the" after the words "in conjunction with the" in paragraph 4 of the draft order.
APPENDIX
Reporting committee: Social, Health and Family Affairs Committee
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 7649 and Doc 7650, Reference 2123 of 7 November 1996
Opinion approved by the committee on 20 April 1998
Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge