T-ES-WG(2016)03_en
14 November 2016
LANZAROTE COMMITTEE
Working Group on Trends in Child Sexual Exploitation
and Abuse
..................................
Report
4th meeting
Strasbourg, 6 October 2016
Prepared by the Secretariat of the Lanzarote Committee
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1. OPENING OF THE MEETING AND ADOPTION OF THE AGENDA
1.
Mr Claude JANNIZZI (Chair of the Lanzarote Committee) chaired the meeting in the
absence of the Working Group’s Chair, Mr Erik PLANKEN (Netherlands).
2. SUGGESTION OF POSSIBLE ISSUES TO BE INCLUDED IN THE QUESTIONNAIRE FOR
THE 2ND MONITORING ROUND (ON “THE DANGEROUS EFFECTS OF THE CHILD’S
INTERACTION THROUGH ICT”)
2.
It was recalled that during its 15th meeting (14-17 June 2016), the Lanzarote Committee
decided that the theme of its 2nd monitoring round would be “The dangerous effects of the
child’s interaction through ICTs” and that it was agreed that the Working Group should suggest
possible issues to be included in the questionnaire for this 2nd monitoring round, on the basis of
its Reflection Document (Document T-ES-WG(2016)02Rev2).
3.
The Working Group undertook this task by firstly identifying the Lanzarote Convention
articles referring to ICTs. It was thus pointed out that only five articles1 of the Lanzarote
Convention and its preamble explicitly mention ICTs and these might not necessarily be enough
to gather all the relevant information to understand how Parties deal with the dangerous effects
of the child’s interaction through ICTs.
4.
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It was then specified that such articles fall into two categories:
those concerning prevention and protection where children are to be empowered,
trained or protected (Articles 6 and 9);the
those concerning prosecution that resolve around perpetrators (Articles 20, 23, 30(5)2 nd
indent).
5.
On the one hand, it was highlighted that an assessment of the implementation of most
articles of the Lanzarote Convention seemed necessary to tackle the above mentioned theme
(particularly as the theme as currently worded was very general and did not highlight any
specific challenging behaviours in particular). On the other hand, it was emphasised that if the
Committee was interested in focusing on what Parties are doing to apprehend some of the
trends described in the Working Group’s Reflection Paper, it would have to examine any
relevant Convention provision even when ICTs are not mentioned. In this respect it was pointed
out that the implementation of Articles such as Article 21 (Offences concerning the participation
of a child in pornographic performances) should surely be examined.
6.
In the light of the above considerations, it was suggested that the referencing of ICTs in
the preamble of the Lanzarote Convention demonstrated the will of its drafters for the
Convention to address ICTs. Additionally and to this effect, it was pointed out that §148 of the
explanatory report concerning Article 21, for example, mentions the use of Webcams (whilst the
Article itself is silent on ICTs). This provides support to a wider interpretation of the Convention
to keep up with technological developments and to apply the articles of the Conventions to ICTs.
This appreciation may also arise from the case law of the European Court of Human Rights’ case
law, referred to in §121 of the Convention’s explanatory report, which can be interpreted as
indicating that a convention, such as the Lanzarote Convention, should be interpreted widely to
enable it to achieve its purpose in line with its spirit, namely to effectively prevent, protect and
punish sexual abuse and sexual exploitation against children, and to ensure the protection of the
1
Articles 6 (Education for children), 9(2) (Participation of the private sector), 20(1)(f) (Offences concerning
child pornography), 23 (Solicitation of children for sexual purposes) and 30(5) 2nd indent (Investigation,
prosecution and procedural law – Principles).
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best interests of the child. The Convention should be considered a living instrument that has to
be interpreted as applicable to the dangers known at the moment it has been drafted as well as
to the dangers that have appeared since that time and to those that still are to appear in the
future. The best interest of the child would otherwise risk being jeopardised. It was recalled that,
when drafting the Lanzarote Convention, all the aspects looked into by the Working Group in its
Reflection Document were not known yet.
7.
Other Articles of the Convention were examined in order to strengthen the above
mentioned argumentation for a dynamic interpretation of the Lanzarote Convention, while
underlining that ICTs should in fact be seen merely as a means or a technical tool for committing
the crimes referred to in the Lanzarote Convention. Article 18 (Sexual abuse), for example,
mentions behaviours which may also take place in an online environment nowadays even if this
is not specified in the provision itself nor in its explanatory report.
8.
It was however also argued by some that the monitoring of the Convention should focus
on whether Parties are fully implementing their obligations or not. Given that ICTs are explicitly
mentioned in some articles, and not in others, there may be doubts as to whether Parties are
required to implement all articles also in the context of ICTs. In this respect it was recalled that
the Lanzarote Committee’s implementation reports distinguish between “urging” Parties in its
recommendations, where the matter concerns an obligation, and “inviting” or “considering”,
where there is a widespread good practice in a certain field.
9.
With this in mind, it was felt that, in fact, there were only very few articles which would
be excluded from the scope of the 2nd monitoring round.2
10.
In the light of the above reflection, the Working Group discussed and approved the
Chair’s proposal of writing a general comment (”guidance note” or similar), by which Parties
agree on a common dynamic interpretation of the Lanzarote Convention in a time where ICTs
are developing faster than lawyers can draft new legislation. It was also suggested that such a
comment would need to ensure a victim-centred approach.
11.
It was agreed to recommend to the Lanzarote Committee that this document should be
drafted before the 2nd monitoring round is launched, as it could then be used to inform Parties
when responding to the questionnaire. Both the questionnaire and the general comment could
therefore be worked upon in parallel, with both texts ideally on the agenda of the same meeting
of the Lanzarote Committee (e.g. during the 17th meeting of the Lanzarote Committee, 1-3March
2017).
12.
The Working Group then discussed the issues to be addressed by the questionnaire. It
was pointed out that the current emphasis on “dangerous effects” might be misleading and
could be understood as referring to the overuse of ICTs (addiction to) or to the fact that this
prevents children from reading books. The Working Group therefore decided to suggest to the
Committee to reconsider the wording of the theme in order to better reflect the specific target
of the monitoring round, to be victim/child-centred and, to adopt a wording that would refer to
the protection of children against sexual exploitation and sexual abuse, as was done in the titles
of the 1st monitoring round3 and of the urgent monitoring round4.
2
The provisions which should be looked at are: Chapters II, III, IV, V, VI, VIII and X, as well as articles
30(5)2nd indent and 31(1)(e), 32, 33, 34 of chapter VII (the rest of which was already looked at through
the lens of the first monitoring round) and 43 of chapter XI.
3
The protection of children against sexual abuse in the circle of trust.
4
Protecting children affected by the refugee crisis from sexual exploitation and sexual abuse.
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13.
As the range of the selected theme appears to be extremely broad, the Working Group
decided to suggest to the Committee to select a few topical ICT facilitated current behaviourpatterns (e.g. sexual coercion and extortion, sexting, etc.) and to then identify the relevant
Convention provisions that may apply to them (whether they refer to ICTs or not). This modus
operandi would allow to gain insight into whether there are existent gaps between the current
situation and the legislation, and whether there is more to be done. The Working Group was of
the view that its Reflection Paper could be used to inform the choice of the above mentioned
behaviour-patterns.
14.
The Working Group then selected the following trends/behaviour-patterns to be
suggested to the Lanzarote Committee as main focus of the 2nd monitoring round:
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Self-generated images (SGIMs) and sexting
Sexual coercion and extortion
Sex chatting
15.
These trends, all well-defined in the Working Group’s Reflection Paper, are facilitated by
ICTs and may be interrelated.
16.
Finally, the Working Group recalled that, as always, the questionnaire should ask Parties
to look specifically at gender aspects, and at children in particularly vulnerable situations, such
as those with disabilities.
3. SUGGESTION OF POSSIBLE ACTIONS THAT MIGHT BE TAKEN TO TACKLE THE
TRENDS NOT DISCUSSED DURING THE 15TH MEETING OF THE LANZAROTE
COMMITTEE
17.
The Secretariat recalled that at its 15th meeting (14-17 June 2016), the Lanzarote
Committee discussed possible actions to tackle the trends highlighted by the Working Group as
they appear in document T-ES-WG(2016)02Rev2, except for those mentioned in section 4 of
Appendix 2 of this document. The Working Group was therefore asked to discuss possible
actions for the below trends, on the basis of any possible indication received by Lanzarote
Committee members5.
a) Commercial child sexual exploitation (payment)
Financial penalties
18.
The Working Group discussed the feasibility of recommending the imposing of financial
penalties in addition to imprisonment, for cases where the offences were committed with the
purpose of financial gain, and distinguishing such financial penalties from ‘seizure of proceeds’.
Financial penalties may serve as a deterrent and effective punishment to those who are
commercially motivated in their crimes.
19.
To maintain flexibility for each Party’s own criminal justice systems, it was agreed that
the wording of the EU Directive could be taken as a good compromise: this in fact “invites
parties to consider” imposing financial penalties.6
20.
5
6
It was underlined that any text adopted in line with the above suggestion should be
The indications received by Liechtenstein were shared with the Working Group
EU Directive 2011/93, Recital 16 (para 20, page 6)
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phrased in a way that it cannot be read as permitting offenders to avoid prison through merely
receiving a fine. It was discussed whether a list of sanctions to natural persons could be added,
as is done in Article 27 of the Lanzarote Convention for sanctioning legal persons. It was
however concluded that this may prove difficult, given the different range of sanctions that are
applicable in different member States.
21.
In the light of the above, the Working Group agreed to recommend the Lanzarote
Committee to consider the following wording on financial penalties: “invite Parties to consider
imposing financial penalties in addition to imprisonment for cases where offences are
committed with the purpose of financial gain, in addition to the seizure of the proceeds”.
22.
This would align the Lanzarote Convention with the EU directive, while of course having
a different geographical reach, given the wider geographical ratification scope of the Lanzarote
Convention.
Aggravating circumstances
23.
The Working Group agreed to recommend the Lanzarote Committee to consider
whether child sexual exploitation done for the purposes of financial gain could be considered an
aggravating circumstance, when this is not already a specified crime in itself.
Payment companies
24.
The Working Group agreed to recommend the Lanzarote Committee to consider
whether provision could be made for Parties to “continue or increase encouragement of
payment companies becoming active partners in the fight against such abuses”.
25.
The Working Group also was of the view that the Lanzarote Committee should
encourage the sharing of good practices in this context. It was noted in this regard that, since
the European Financial Coalition, and equivalents in America and Asia already have much
information about what payment companies can do to fight against these abuses, it could be
relatively easy to determine good practices to recommend.
b) Sex Chatting
26.
As mentioned above (see item 2), the Working Group agreed to recommend to the
Lanzarote Committee that sex chatting be covered within the 2nd monitoring round.
c) Anonymity and encryption of data
Aggravating circumstance
27.
The Working Group agreed to recommend to the Lanzarote Committee to invite Parties
to consider use of anonymity/encryption as an aggravating circumstance. If this were not
possible it was acknowledged that the applicable legislation should enable the courts to take
this element into consideration when deciding on the conviction.
Reinforcing international cooperation
28.
As the use of undercover activities and the resultant evidence may not be compatible
with the legislation or the law enforcement doctrine of a number of Parties, the Working Group
did not recommend any specific action in this regard at this stage.
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d) Data retention
29.
In the light of a recent EU Regulation in this area, the Working Group did not
recommend any action to be taken in this regard at this stage.
4. DISCUSSION ON FUTURE POSSIBLE ACTIVITIES TO BE CARRIED OUT BY THE
WORKING GROUP
30.
The Working Group manifested its availability to continue to work by e.g. contributing to
the drafting of both the document suggested above and the questionnaire for the 2nd monitoring
round. For the purposes of this work, the Chair of the Committee, chairing also the Working
Group, suggested to hold the next meeting of the Working Group jointly with the Bureau of the
Lanzarote Committee prior to the 17th meeting of the Lanzarote Committee (1-3 March 2017).
31.
The Working Group further discussed the fact that new missions may arise after the
drafting of the questionnaire in particular, on the basis of the replies to this questionnaire.
32.
The Working Group also discussed the potential benefit in contacting the European
Commission, in the context of ICT-related offences within the framework of its reporting task
provided by Article 28 of the EU Directive, in order to request what kind of information they
have obtained, and whether they would be willing to share it. Their information could be
presented during a future Lanzarote Committee meeting, and documents could be shared
among the Working Group when made available.7
33.
Finally, it was agreed that the Working Group should continue to bear in mind any
possible developments concerning the trends identified in its Reflection Document which will
not be the focus of the work of the 2nd monitoring round. These might in fact be addressed by
the Committee in its sharing of information capacity if need be.
5. OTHER MATTERS
34.
The Working Group was informed that Europol is finalising a report and awarenessraising campaign with a focus on preventive measures. Videos will be produced and potentially
translated. The Lanzarote Committee is invited to consider replicating this campaign work. This
would be particularly valuable given the conclusions of the report, which show a general lack of
preventive campaigning. The work of Europol could be presented to the Lanzarote Committee in
the 17th meeting of the Lanzarote Committee (1-3 March 2017).
35.
The Working Group agreed its Reflection Paper should be borne in mind when deciding
on the theme(s) to be addressed on the occasion of the 10 years anniversary of the Lanzarote
Convention’s opening for signature in October 2017. It was however agreed that the Reflection
Paper would remain a working document (not to be distributed to the public at large/not to be
published on the Lanzarote Committee’s website).
7
An upcoming report on notice and take-down may be of particular interest to the Working Group’s work.
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Appendix I
Agenda
1.
Opening of the meeting and adoption of the agenda
2.
Suggestion of possible issues to be included in the questionnaire for the
2nd monitoring round (on “The dangerous effects of the child’s interaction
through ICT”)
At its 15th meeting (14-17 June 2016), the Lanzarote Committee decided that the theme
of its 2nd monitoring round will be “The dangerous effects of the child’s interaction
through ICT”.
The Working Group is therefore requested to suggest possible issues to be included in
the questionnaire for this 2nd monitoring round, on the basis of its reflection document
(Document T-ES-WG(2016)02Rev2).
3.
Suggestion of possible actions that might be taken to tackle the trends not
discussed during the 15th meeting of the Lanzarote Committee
At its 15th meeting (14-17 June 2016), the Lanzarote Committee discussed possible
actions to tackle the trends highlighted by the Working Group as they appear in
document T-ES-WG(2016)02Rev2, except for those mentioned in section 4 of Appendix 2
of this document.
The Working Group is therefore requested to discuss possible actions for these trends
(i.e.: Commercial child sexual exploitation (payment); sex chatting / sexting; anonymity
and encryption of data / use of dark net; data retention), on the basis of any possible
indication received by Lanzarote Committee members.
4.
Discussion on future possible activities to be carried out by the Working Group
On the basis of document T-ES-WG(2016)02Rev2 and of the discussions held under
item 3 above, the Working Group is expected to discuss any future activities it would be
ready to carry out. These would be suggested to the Lanzarote Committee for decision.
The Working Group should also consider whether it (in its current composition or a new
one) should carry out any/all of the future activities identified.
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Appendix II
List of Participants
BELGIUM / BELGIQUE
Ms Christel DE CRAIM
Acting Head of Service
Service for Criminal Policy
Ministry of Justice
GERMANY / ALLEMAGNE
Ms Garonne BEZJAK
Judge
Division II A 7
Criminal Law (Criminology, Prevention and
Offences against sexual self-determination)
Federal Ministry of Justice and Consumer
Protection
LUXEMBOURG
M. Claude JANIZZI
Conseiller de direction 1re classe
Service des droits de l’enfant / Service des
relations internationales
Ministère de l’Éducation nationale, de
l’Enfance et de la Jeunesse
NETHERLANDS / PAYS-BAS
Ms Annemarie KOKS
Policy Advisor
Law Enforcement Department
Ministry of Security and Justice
PORTUGAL
Ms Maria José CASTELLO-BRANCO
Legal Adviser
International Affairs Department
Directorate-General for Justice Policy
Ministry of Justice
EUROPEAN COMMISSION
Mr Antonio LABRADOR-JIMENEZ
(Apologised)
Unit A.2: Fight against organised crime
DG Home Affairs
EUROPOL
Ms Katarzyna STACIWA
Strategic analyst in the team dealing with
child sexual exploitation
European Cybercrime Centre
FP Twins
The Hague, Netherlands
INTERNATIONAL TELECOMMUNICATION
UNION (ITU)
Ms Carla LICCIARDELLO
(Apologised)
Corporate Strategy Division
ECPAT INTERNATIONAL
Mr John CARR
London, United Kingdom
eNACSO / CHILD FOCUS
Mr Miguel TORRES GARCIA
Chief Operation Officer
Brussels, Belgium
MISSING CHILDREN EUROPE
Mr Francis HERBERT
Legal Counsel
Brussels, Belgium
INTERNET WATCH FOUNDATION
Mr Kristof CLAESEN
Director of Policy and Public Affairs
Cambridge, United Kingdom
COUNCIL OF EUROPE SECRETARIAT
Children’s Rights Division
Ms Regína JENSDÓTTIR
Head of Division
Ms Gioia SCAPPUCCI
Executive Secretary to the Lanzarote
Committee
Mr Mikaël POUTIERS
Secretary to the Working Group
Ms Corinne CHRISTOPHEL
Assistant to the Working Group
Ms Tara BEATTIE
Assistant