Introduction

Children belong, mainly due to their mental immaturity and physical vulnerability, to the group of people more likely to become victims of criminal abuse acts.¹ The inability of minors to efficiently defend themselves against or stay safe from threats as well as the massive (bodily or psychological) harm risks resulting from criminal behaviour demand in today’s globalized society the establishment of an effective legal net of national and international measures concerning especially the protection against such damaging conduct as sexual exploitation and sexual abuse.² This kind of protection is conceivable in two ways: by preventing and combating sexual-related crimes against children as well as by providing assistance to and protecting the victims of such behaviour from further victimization.

Taking into account the need for special measures because of the inherent gravity of sexual offences against children and the consequences resulting therefrom, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201, hereinafter: the Convention) sets a comprehensive legal framework which categorizes various sexual abuse forms as criminal offences and comprises preventive measures, victim protection measures and international cooperation rules.³ More specifically, the Convention obliges the Signatory Parties to take a minimum of measures responding to the main purposes set in Article 1, the prevention and combat of child sexual exploitation and abuse, the protection of the rights of child victims and the promotion of national and international cooperation in both fields. The Convention was adopted by the Committee of Ministers on 12 July 2007, opened for signature on 25 October 2007 in Lanzarote, Spain, and entered into force on 1 July 2010. Of the 47 Member States of the Council of Europe, 42 have already signed, but until June 2011 only 12 ratified the Convention.⁴

The establishment of the Convention was preceded by other international legal instruments which regulate, though fragmentarily, different aspects regarding the protection of minors against behaviour linked to exploitation and abuse acts. To be mentioned are especially the Convention on Cybercrime (2001, ETS No. 185), the Council of Europe Convention on Action against Trafficking in Human Beings (2005, CETS No. 197), the UN Convention on the Rights of the Child (1989) and its Optional Protocol on the sale of children, child prostitution and child pornography (2000), as well as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplements the UN Convention against Transnational Organized Crime (2000). Finally, in terms of European Union (EU) legislation, the Directive 2011/36/EU of the European Parliament and the Council on preventing and combating trafficking in human beings and protecting its victims (OJ L 101/1, 15.04.2011), as well as the Framework Decision on combating the sexual exploitation of children and child pornography (2004/68/JHA), which is on the way to be replaced by an EU Directive⁵, particularly stand out.

Through the provisions of the Convention examined herewith, an additional effort from the side of the Council of Europe is made to cover the deficits in efficiency in the national legislations of the State Parties in regard to the protection of children against sexual exploitation and abuse and to the assistance of victims. This article examines the central norms of the Convention by providing briefly, due to its limited size, a systematic overview of its protection and assistance mechanisms (below II). It then focuses on those principles and rules reflecting the will of the Member States to combat the use of the modern information and communication technologies for criminal purposes and on the need to enhance the protection of (potential) victims of sexual-related crime through information and technology means (below III). The article closes with a reference to the respective legal basis in Greece before and after the implementation of the Convention and its efficiency in addressing the above issues (below IV).

Overview of the Convention’s protective system

The Convention’s main goal is to provide the national law of the State Parties with a sufficient legal basis for the effective protection of minors and child victims against sexual exploitation and abuse or their results.⁶ In this context, “child” refers to any person under the age of 18 years and “victim” to any child subject to sexual exploitation or abuse.⁷ However, for (consensual) sexual activities between a minor and an adult to be treated as the criminal offence of sexual abuse, the minor has to be below the age set by the national law as the legal age for sexual activities.⁸

In general, the exact content of “sexual exploitation and sexual abuse” is to be determined by the domestic law⁹; in any case, the Parties should ensure that the intentional behaviour and the minimum standards described in Arts. 18-23 constitute nationally recognized offences. The core substantive criminal law of the Convention focuses on various forms of sexual abuse and corruption of children, on sexual-related offences concerning child prostitution, child pornography and the participation of a child in pornographic performances, and on the sui generis offence of solicitation of children for sexual purposes through information and communication technologies.¹⁰ In the same context, guidelines regarding the establishment of effective and proportionate sanctions, of aggravating circumstances and of the (criminal, civil or administrative) liability of a legal person for sexual offences committed for its benefit by a natural person are also included in the text of the Convention.¹¹ Basic aim of these provisions is the harmonization of the domestic law of the states.¹²

Additionally, in the interest of combating behaviour related to sexual exploitation and abuse of children through the means of substantive criminal law, the Convention includes provisions on law of application (such as the territoriality, nationality and aut dedere aut judicare principles and the abolition of the dual criminality rule), regulating in that respect the cases in which a State Party should have jurisdiction over offences established in accordance to the Convention. These are primarily meant to relate to the efforts made for combating the so-called “sex tourism”.¹³

Turning to the question of the necessary preventive and protective measures to be taken in the national legislations, the Convention provides for the recruitment, training and awareness-raising of persons working in contact with children, the sexual education for children, the establishment of preventive intervention programmes and general public information measures, the participation of the private sector, the media and civil society in preventive policies, the designation of independent institutions, and the coordination between the authorities competent for the promotion and protection of the rights of the child (Arts. 5-10). As regards the protection and support of child victims, the Convention relies on the promotion of measures such as the setting up of “helplines”, the physical and psycho-social recovery assistance of victims and the cooperation of each state with non-governmental and other organizations engaging in the assistance to victims (Arts. 11-14).

Finally, in relation to the status of minors as sex victims, the procedural principles and rules prescribed in Arts. 30-36 of the Convention focus on the respect of the interests and rights of the child, on the exclusion of further victimization possibilities and on the effectiveness of the investigations in sexual abuse cases. These norms include provisions about the information, legal aid and participation rights of child victims and witnesses in criminal proceedings, their protection from public dissemination, intimidation, retaliation and repeat victimization, the special training of the investigative authorities, and the protective and secure (through means of technology) way the interviews and in court examinations of child victims should take place. Before further addressing the special relation between sexual offences, child victims and modern technology tools, it should already be noted that, notwithstanding the obvious sensitive or burdensome nature of investigations and procedures involving minors as victims, in criminal proceedings all defence and fair trial rights as provided by national and international law must be guaranteed in the same extend as the victim’s rights.¹⁴

III. Sexual-related crimes and child victims in the society of technology

Online victimization

It is a common assumption that the modern information and communication technologies, like the Internet, can provide potential perpetrators of crimes related to child sexual abuse and exploitation or even criminal organizations with the applicable (anonymous and speedy) tools for facilitating their criminal activities.¹⁵ The hazards arising especially from “computer-related crime and cybercrime”¹⁶ are accordingly not to be left out of the legislator’s care. On the other hand, the use of technology itself could be helpful for the prevention or combat of sexual-related crimes and for the protection and assistance of child victims.

The Convention deals with the question of online sexual-related criminality and victimization mainly at the level of the substantive criminal law provisions which should become part of the national law of all State Parties.¹⁷ Art. 20(1f) classifies, for the first time, the intentional conduct, when committed without right, of knowingly obtaining access, through information and communication technologies, to child pornography, as a crime.¹⁸ The Parties are expected to criminalize the conduct of “obtaining access”, i.e. the sole (intentional) viewing of child images online by (knowingly, not inadvertently) accessing child pornography sites without downloading any material with sexual content.¹⁹ This provision shall ensure the punishment of behaviour which technically is not part of the chain from the production to the possession of pornographic material.²⁰ This chain includes the acts of making child pornography available online, transmitting, procuring by downloading or possessing in a computer system of child pornography and is separately covered by the offences listed in Art. 20(1a-1e).

Furthermore, the Convention intends to reinforce the combat against direct forms of victimization caused by the use of online services by focusing on the criminalization of solicitation through information and communication technologies (such as online chat rooms) for the purpose of engaging in sexual activities with a child under legal age or for producing child pornography (Art. 23). Necessary precondition thereof is that the intentional proposal of an adult to meet a child below the legal age for sexual engagements has been followed by material acts (e.g. the arrival of the perpetrator at the meeting place) leading to an actual meeting.²¹

Overall, the Council of Europe equips through the aforementioned substantive criminal law provisions the protective system of the Convention with adequate measures against the misuse of the Internet and other modern technologies. However, it must be noted that, with respect to the question of effectively combating sexual-related cyber-offences, the Convention does not include any specific provisions on the definition of the “place of the crime”, although – due exactly to the technically complex and global nature of trans-border crime committed through virtual networks – this directly relates to issues of aiding or abetting and attempt (Art. 24) as well as to issues of international cooperation, jurisdiction and the law of application.²²

Technology and the fight against sex crime

It can be observed that the Convention addresses the possibilities of the use of modern technology in the fight against sexual-related crimes and the protection of child victims in various ways²³; hence, preventive measures to be taken are the promotion of the participation of the information and communication technology sector (e.g. Internet service providers, mobile phone network operators and search engines) in preventive programmes as well as the participation of the media sector in actions of informative nature (Art. 9(2-3)). The states shall further set up mechanisms for data collection or focal points for the purpose of observing and evaluating the phenomenon of sexual exploitation and the abuse of children (Art. 10(2b)).

Moreover, with respect to the necessity of assisting child victims of sex crimes, Art. 13 promotes the establishment of information services, such as telephone or Internet “helplines”. Finally, with reference to child victim rights, the Convention includes procedural provisions concerning the function of special units responsible for the identification of victims by lawfully analysing child pornography material, as well as rules for the electronic recordings of interviews for evidentiary purposes and the hearing of child victim during court proceedings from distance and through the use of appropriate communication technologies.²⁴

Especially regarding the issue of evidence given by a victim of sexual abuse, it has to be noted that the State Parties shall be rather reluctant when applying norms which permit the physical absence of the child during the court proceedings. Protective measures such as securing the absence or even preserving the anonymity of the victim are justified by the heavy impact the proceedings or a new confrontation with the perpetrator could have on the private life, the psycho-social development and the health of the child.²⁵ However, they contradict the right of the defence for a fair and adversarial trial as prescribed in Art. 6 (1, 3d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and implemented by the European Court of Human Rights. This right, although not absolute, is sufficiently guaranteed only if the person charged with a sexual offence or his defence lawyer is able to examine the main prosecution witness (i.e. to challenge and question the merits of the testimony as well as the personal credibility of the witness) at least once at any point during the criminal process. If such an adequate and proper opportunity to confrontation is not given to the defence at all, the conviction is not allowed to be based either solely or to a decisive extent on the testimony of a non-confronted child victim.²⁶ Consequently, by considering the criminal proceedings as a whole, it can be argued that the use of the modern technologies (such as recordings of preliminary interviews on the presence of at least the defence lawyer or the use of two-way closed circuit television) could result in equally taking into account the rights of both victim and defendant while achieving a more fair evidentiary outcome. The necessity of such measures will become apparent in the analysis of fair trial deficits in the Greek legal system.

IV. Implementation of the Convention in Greece

The 19^th Chapter of the Greek Penal Code (hereinafter: PC), entitled “Crimes against the sexual freedom and crimes against the financial exploitation of sexual life”²⁷, includes the criminal law provisions for the protection of minors against sexual abuse and exploitation. Over the last decade, the chapter has undergone a series of radical changes, adapting to the modern perceptions on sexual self-determination, freedom and dignity. This modernization comprises two main characteristics based on the recent legislative activity at international and European level²⁸ regarding the rights and the stand of crime victims in the proceedings as well as on the developments of the information and communication technologies and the risks inherent in their use. On the one hand, emphasis is given to the child as a potential victim of sex crimes, whereas childhood constitutes a separate legal interest additionally protected by the provisions of the aforementioned chapter of the Penal Code.²⁹ On the other hand, the recent criminalization trends resulted in the establishment of new sexual (related) offences connected particularly to the use of online technologies or in the increase of sanctions for traditional sex crimes.

In this context, the Council of Europe Convention has played a major role in the anti-victimization policies of the Greek State. The Convention was signed by Greece on 25 October 2007, ratified by Law 3727/2008³⁰ and entered into force on 1 July 2010, becoming an integral part of the domestic law with supra-statutory force in accordance to Art. 28(1) of the Greek Constitution. The implementation of the Convention into the Greek Legal Order resulted in a number of changes not only within the context of criminal law, but at the level of the prevention of victimization and the protection of victims as well.³¹

Regarding the substantive criminal law issues, “minor” is, according to Greek law³² and in compliance with the Convention, every person under the age of 18 years, while the legal age in order for consensual or certain other sexual related activities (such as the solicitation of Art. 348B PC) not to constitute a crime is 15 years of age (Art. 339 (1) PC). However, despite the right to sexual self-determination granted to minors older than 15, there are certain sexual related situations, in which the participation of a minor, regardless of his age, always constitutes a crime (e.g. in all offences related to the child pornography chain (Art. 348A PC)).

Of the new forms of criminal conduct established as a result of the implementation of the Convention and directly connected to the “triptych” sexual misconduct-child victim-new technologies, the solicitation (grooming) has been enshrined in Art. 348B PC. This provision is in principle aligned with the minimum terms of Art. 23 of the Convention. However, in relation to child pornography, “obtaining access” (viewing without downloading) to child pornographic material through information and communication technologies is, contrary to Art. 20(1f) of the Convention, not expressly criminalized in the Greek Penal Code. Also, the meaning of “possession” (physical and knowing control over an object with the power to further distribution) of child pornography by means of computer use or online services, already constituting a criminal act according to the existing provision on child pornography (Art. 348A PC)³³, cannot be extended to include the act of online viewing, in which both literature and jurisprudence agree.³⁴ Finally, the Greek legislator, under the influence of the Convention, strengthened with Art. 337(3-4) PC the protection of minors from modern forms of offences against the sexual dignity which may occur through the use of information technologies without necessarily presupposing a physical contact or intercourse (e.g. indecent proposals via the Internet).³⁵

As far as the use of technology to help and support minors is concerned, Art. 2 of implementing Law 3727/2008 provides for the setting up of telephone or Internet “helplines” to assist children in danger or child victims. It also includes the establishment of data and information units for monitoring the phenomenon of sexual exploitation and abuse.³⁶ Furthermore, Art. 226A(3) CCP, which preceded the implementation of the Convention, foresees that the pre-trial witness testimony of a child victim is to be videotaped, if possible, for the purpose of further replacing the physical presence of the minor during the proceedings by the electronic projection of the interview. The provisions of Art. 226A(2-5) clearly violate the principles of the ECHR to a fair and adversarial trial since neither the defendant nor his lawyer are allowed to be present during the child interview (preliminary, main or complementary) and their only possibility to “examine” the witness during trial is through predetermined questions asked by an investigating officer out of court. The introduction of videoconferencing, one of the measures proposed by the Convention, in the Greek proceedings could serve as a counterbalance to the conflict between the rights of the victim and those of the defendant.³⁷

V. Conclusion

The Council of Europe Convention, the first international legal instrument to specifically target child victimization through sexual-related crimes, sets the ground rules for the prevention of and the combat against sexual exploitation and abuse of minors as well as for the protection of the rights of child victims. It therefore represents “a major advance in protecting children that is remarkable for its comprehensiveness, innovation, and humanity”.³⁸ However, its long-term effectiveness in a modern society of communications and technology remains to be proved. The desired harmonization of the national legal orders demands a greater number of ratifications, while the sometimes abstract and non-rigid character of the Convention impedes this process. This becomes apparent, among others, in the absence of a single norm regulating the legal age for sexual activities, in the possibilities of the states not to criminalize specific conduct (by means of reservation), e.g. the “obtaining access to child pornography”, in the use of vague terms (e.g. “possessing” and “obtaining access” to child pornography online), and finally in the lack of specification regarding more precise rules of penal jurisdiction and coordination in internet crime.

As far as Greece is concerned, even though the respective national provisions are not exhaustive and in some points do not fully comply with the Convention, there has been significant progress in the areas of prevention, protection and law enforcement. On the other hand, the reinforced legal position of the victim in criminal proceedings, in which the Convention resulted, exposed the necessity for further amendments in the Greek criminal procedure in order to refrain from unequal restrictions of the defendant’s rights or from jeopardising the traditional goal of the criminal trial (finding substantial truth through due process). Nonetheless, the Convention itself provides, especially by promoting the protective use of technology in criminal proceedings, a minimum solution to the problem. Hence, taking full advantage of its provisions seems to be the right way to go.

Emmanouil Billis, LL.M.

Researcher at the Max Planck Institute in Freiburg, Attorney at law, and PhD candidate at the University of Freiburg, Germany (Research grant from Alexander S. Onassis Public Benefit Foundation)

e.billis@mpicc.de

Panagiotis Gkaniatsos, LL.M.

Attorney at law, and PhD candidate at the University of Göttingen, Germany

pgkaniatsos@gmail.com