Dear Readers,
We are honored to be guest editors of this special edition of “The Art of Crime” dedicated to European criminal law and the most recent developments in this area, including both the Council of Europe and the EU. Currently, the EU is experiencing challenging times in which its strength as a union as well as its flexibility to adapt to new situations is being tested. Originally founded by six Member States, the EU today has grown to be a cooperative structure of 27 Member States that not only join forces on the economic and financial levels but also in setting up a common foreign and security policy as well as an area of freedom, security and justice. In 2011, new events prompted several EU Member States to question two of the Union’s biggest achievements: the common currency of the Euro, on the one hand, and the so-called Schengen area, in which citizens enjoy free travel thanks to the abolishment of internal border controls, on the other.

The financial crisis has hit governments, financial institutions, companies and citizens worldwide. In the EU, this has led to a serious crisis. These developments caused fundamental questions to surface regarding the sustainability of the Eurocurrency, the “bailing out” of indebted countries and even the ability of the EU institutions to deal with this crisis in a justifiable manner and eventually restore faith in its original vision of an economic community and an internal market. Trust is a meaningful key word in the current state of the EU. The situation concerns the lack of trust on the part of banks and investors in a country’s ability to pay back a loan; the lack of trust on the part of companies to invest in countries that find themselves in financial turmoil and the lack of trust on the part of citizens in their national governments. The latter are expected to effectively combat the repercussions of the crisis as felt by households in terms of job insecurity and soaring prices for consumer goods.

Trust is also the key word when focusing on the engagement of the 27 Member States in judicial and police cooperation in criminal matters. Creating a genuine area of freedom, security and justice has been one of the objectives of the EU since the Treaty of Amsterdam. Harmonization and approximation of criminal laws of the Member States were built on the principle of mutual recognition introduced by the same Treaty. Even though this working method was meant to be applied towards the harmonization of substantive criminal law, it was also used to harmonize procedural criminal law. A basic level of mutual trust was the prerequisite for the efficient functioning of legal instruments such as the Framework Decision on the European Arrest Warrant that abolished the traditional extradition procedures for a number of criminal offences. Member States’ authorities thus need to trust each other when issuing arrest warrants and prosecuting as well as sentencing criminal offenders. With new mutual recognition instruments having been introduced in the past few years (e.g. mutual recognition of financial penalties, confiscation orders, custodial sentences or measures involving deprivation of liberty, etc.) and others still in the decision-making process (e.g. European Protection Order), one would expect mutual trust to be growing, especially since the highly anticipated 2009 Treaty of Lisbon builds further upon the principle of mutual recognition. However, practice has proven that this mutual trust is often lacking. A fortiori, minimum standards have been laid down in order to iron out differences between national criminal justice systems that can have significant consequences for persons who are the suspect, the accused or the victim in criminal proceedings. The 2009 Roadmap on procedural rights has so far resulted in the adoption of a Directive on the right to interpretation and translation in criminal proceedings and a proposed Directive that will ensure defendants’ right to information in criminal proceedings wherever they are in the EU. In addition, minimum standards regarding the rights of victims in criminal proceedings are being negotiated. However, this list of new and future measures alone does not ensure mutual trust between the Member States.

In order to keep this area of freedom, security and justice intact, Member States also need to be able to maintain their trust in times of crisis. When several Member States belonging to the Schengen zone were confronted with a large influx of Arab immigrants fleeing the violence that erupted during the 2011 Arab Spring, the idea of reinstalling internal border controls was put on the table. Due to its geographical location, Italy was the country of entry for many who then travelled on to France. At the same time, Denmark decided to reinstall border controls for internal political reasons. These events caused the European Commission to rethink its mechanisms for dealing with pressure at the external borders of the Schengen zone. The 1985 Schengen Agreement that was fully integrated into the EU is therefore undergoing revision at present. In addition, two Member States that applied to enter the Schengen zone, Bulgaria and Romania, have been denied accession after a veto was issued by Finland and the Netherlands. Their veto was motivated by the fear that Bulgaria and Romania may not have made sufficient efforts to improve their fight against corruption and organized crime. In the meantime, Finland has changed its course in favor of a two-phase accession.

Recent developments with regard to the financial crisis and the Schengen zone demonstrate that building full mutual trust between the EU Member States is a difficult and complicated endeavor. The contributions in this issue of The Art of Crime focus on specific elements of this effort, especially in the field of criminal justice. The Lisbon Treaty has introduced several new features that support building this mutual trust by expanding the areas in which harmonization measures can be adopted and by facilitating the mechanism for those Member States wishing to take harmonization even further by means of an enhanced cooperation. These new features are discussed by Ester Herlin-Karnell in the article “The Lisbon Treaty: A Critical Analysis of its Impact on EU Criminal Law.” Mutual recognition and harmonization go hand in hand. Nevertheless, the principle of mutual recognition itself is also not unconditionally applied by the Member States. The grounds for refusal, whether optional or mandatory, that are defined in mutual recognition instruments play an important role for Member States in maintaining as much of their sovereignty as possible with respect to their criminal justice systems. In this issue of The Art of Crime, Annika Suominen focuses on these legal instruments, more particularly the manner in which they are implemented by the Member States, in her article on “Different Implementations of Mutual Recognition Framework Decisions.”

Mutual trust in cooperation in criminal matters with third states has yet a different dimension, but it is no less important. The counter-terrorism cooperation – more specifically the exchange of information in criminal matters – between the EU and the US since 2001 has been laid down in a range of agreements involving Europol, Eurojust and the EU as an entity. The EU-US relations in this field are analyzed by Valsamis Mitsilegas in his contribution “Transatlantic Counter-Terrorism Cooperation After Lisbon.” The latest agreements with the US authorities have focused on personal data, including financial transfer data and passenger name record data. In this transatlantic alliance, political themes and foreign relations shape the entire concept of the cooperation, giving it a very unique dynamic. Els De Busser deals with this matter in the article “Transatlantic Adequacy and a Certain Degree of Perplexity.”

 

Finally, the evolution of technology and information processing in the last several decades has brought about a new range of legal instruments protecting the rights of persons against possible abuses. A special area of protection is that of minors. The Council of Europe’s Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse focuses inter alia on the question of online sex-related criminality and victimization. Emmanouil Billis and Panagiotis Gkaniatsos cover these aspects in their contribution “Minors as Victims in the Age of Information and Communication Technologies.”

All these aspects of recent European criminal policy will continue to be essential for the future of judicial and police cooperation in criminal matters. With this issue of The Art of Crime, based on key articles of the journal eucrim, we hope to offer you an overview of these thought-provoking policy developments.

 

 

-----------------------------------------------------

 

 

 

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.²  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.³  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.⁴  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, 43 have already signed, but until October 2011 only 15 ratified the Convention.⁵

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 very soon by an EU Directive⁶ , 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).

 

 

 

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.⁷  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.⁸  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.⁹ 

In general, the exact content of “sexual exploitation and sexual abuse” is to be determined by the domestic law¹⁰ ; 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.¹¹  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.¹²  Basic aim of these provisions is the harmonization of the domestic law of the states.¹³ 

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”.¹⁴

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.¹⁵

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

 

a. 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.¹⁶  The hazards arising especially from “computer-related crime and cybercrime”¹⁷  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.¹⁸  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.¹⁹  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.²⁰  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.²¹  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.²² 

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.²³

 

 

b. 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 ways²⁴ ; 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.²⁵

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.²⁶  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.²⁷  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.