sou · GYB371 · 2010-10-27 00:00:00 — 1Each Party shall take the necessary measures to ensure the co- ordination on a national or local level between the different agencies in charge of the protection from, the prevention of and the fight against sexual exploitation and sexual abuse of children, notably the education sector, the health sector, the social services and the law-enforcement and judicial authorities. 2Each Party shall take the necessary legislative or other measures to set up or designate: aindependent competent national or local institutions for the promotion and protection of the rights of the child, ensuring that they are provided with specific resources and responsibilities; bmechanisms for data collection or focal points, at the national or local levels and in collaboration with civil society, for the purpose of observing and evaluating the phenomenon of sexual exploitation and sexual abuse of children, with due respect for the requirements of personal data protection. 3Each Party shall encourage co-operation between the competent state authorities, civil society and the private sector, in order to better prevent and combat sexual exploitation and sexual abuse of children. Chapter IV – Protective measures and assistance to victims Article 11 – Principles 1Each Party shall establish effective social programmes and set up multidisciplinary structures to provide the necessary support for victims, their close relatives and for any person who is responsible for their care. 2Each Party shall take the necessary legislative or other measures to ensure that when the age of the victim is uncertain and there are reasons to believe that the victim is a child, the protection and assistance measures provided for children shall be accorded to him or her pending verification of his or her age. Article 12 – Reporting suspicion of sexual exploitation or sexual abuse 1Each Party shall take the necessary legislative or other measures to ensure that the confidentiality rules imposed by internal law on certain professionals called upon to work in contact with children do not constitute an obstacle to the possibility, for those professionals, of their reporting to the services responsible for child protection any situation where they have reasonable grounds for believing that a child is the victim of sexual exploitation or sexual abuse. 2Each Party shall take the necessary legislative or other measures to encourage any person who knows about or suspects, in good faith, sexual exploitation or sexual abuse of children to report these facts to the competent services. Article 13 – Helplines Each Party shall take the necessary legislative or other measures to encourage and support the setting up of information services, such as telephone or Internet helplines, to provide advice to callers, even confidentially or with due regard for their anonymity. Article 14 – Assistance to victims 1Each Party shall take the necessary legislative or other measures to assist victims, in the short and long term, in their physical and psycho-social recovery. Measures taken pursuant to this para- graph shall take due account of the childs views, needs and con- cerns. 2Each Party shall take measures, under the conditions provided for by its internal law, to co-operate with non-governmental organisations, other relevant organisations or other elements of civil society engaged in assistance to victims. 3When the parents or persons who have care of the child are in- volved in his or her sexual exploitation or sexual abuse, the inter- vention procedures taken in application of Article 11, para- graph 1, shall include: -the possibility of removing the alleged perpetrator; -the possibility of removing the victim from his or her family environment. The conditions and duration of such removal shall be determined in accordance with the best interests of the child. 4Each Party shall take the necessary legislative or other measures to ensure that the persons who are close to the victim may benefit, where appropriate, from therapeutic assistance, notably emergency psychological care. Chapter V – Intervention programmes or measures Article 15 – General principles 1Each Party shall ensure or promote, in accordance with its internal law, effective intervention programmes or measures for the persons referred to in Article 16, paragraphs 1 and 2, with a view to preventing and minimising the risks of repeated offences of a sexual nature against children. Such programmes or measures shall be accessible at any time during the proceedings, inside and outside prison, according to the conditions laid down in internal law. 2Each Party shall ensure or promote, in accordance with its internal law, the development of partnerships or other forms of co-operation between the competent authorities, in particular health-care services and the social services, and the judicial authorities and other bodies responsible for following the persons referred to in Article 16, paragraphs 1 and 2. 3Each Party shall provide, in accordance with its internal law, for an assessment of the dangerousness and possible risks of repe- tition of the offences established in accordance with this Con- vention, by the persons referred to in Article 16, paragraphs 1 and 2, with the aim of identifying appropriate programmes or measures. 4Each Party shall provide, in accordance with its internal law, for an assessment of the effectiveness of the programmes and measures implemented. Article 16 – Recipients of intervention programmes and measures 1Each Party shall ensure, in accordance with its internal law, that persons subject to criminal proceedings for any of the offences established in accordance with this Convention may have access to the programmes or measures mentioned in Article 15, para- graph 1, under conditions which are neither detrimental nor contrary to the rights of the defence and to the requirements of a fair and impartial trial, and particularly with due respect for the rules governing the principle of the presumption of inno- cence. 2Each Party shall ensure, in accordance with its internal law, that persons convicted of any of the offences established in accordance with this Convention may have access to the programmes or measures mentioned in Article 15, paragraph 1. 3Each Party shall ensure, in accordance with its internal law, that intervention programmes or measures are developed or adapted to meet the developmental needs of children who sexually offend, including those who are below the age of criminal responsibility, with the aim of addressing their sexual behavioural problems. Article 17 – Information and consent 1Each Party shall ensure, in accordance with its internal law, that the persons referred to in Article 16 to whom intervention programmes or measures have been proposed are fully informed of the reasons for the proposal and consent to the programme or measure in full knowledge of the facts. 2Each Party shall ensure, in accordance with its internal law, that persons to whom intervention programmes or measures have been proposed may refuse them and, in the case of convicted persons, that they are made aware of the possible consequences a refusal might have. Chapter VI – Substantive criminal law Article 18 – Sexual abuse 1Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised: aengaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities; bengaging in sexual activities with a child where: -use is made of coercion, force or threats; or -abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or -abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence. 2For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child. 3The provisions of paragraph 1.a are not intended to govern con- sensual sexual activities between minors. Article 19 – Offences concerning child prostitution 1Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised: arecruiting a child into prostitution or causing a child to participate in prostitution; bcoercing a child into prostitution or profiting from or other- wise exploiting a child for such purposes; chaving recourse to child prostitution. 2For the purpose of the present article, the term child prosti- tution shall mean the fact of using a child for sexual activities where money or any other form of remuneration or considera- tion is given or promised as payment, regardless if this payment, promise or consideration is made to the child or to a third per- son. Article 20 – Offences concerning child pornography 1Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct, when committed without right, is criminalised: aproducing child pornography; boffering or making available child pornography; cdistributing or transmitting child pornography; dprocuring child pornography for oneself or for another per- son; epossessing child pornography; fknowingly obtaining access, through information and com- munication technologies, to child pornography. 2For the purpose of the present article, the term child porno- graphy shall mean any material that visually depicts a child en- gaged in real or simulated sexually explicit conduct or any depic- tion of a childs sexual organs for primarily sexual purposes. 3Each Party may reserve the right not to apply, in whole or in part, paragraph 1.a and e to the production and possession of pornographic material: -consisting exclusively of simulated representations or realistic images of a non-existent child; -involving children who have reached the age set in application of Article 18, paragraph 2, where these images are produced and possessed by them with their consent and solely for their own private use. 4Each Party may reserve the right not to apply, in whole or in part, paragraph 1.f. Article 21 – Offences concerning the participation of a child in pornographic performances 1Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised: arecruiting a child into participating in pornographic per- formances or causing a child to participate in such per- formances; bcoercing a child into participating in pornographic per- formances or profiting from or otherwise exploiting a child for such purposes; cknowingly attending pornographic performances involving the participation of children. 2Each Party may reserve the right to limit the application of para- graph 1.c to cases where children have been recruited or coerced in conformity with paragraph 1.a or b. Article 22 – Corruption of children Each Party shall take the necessary legislative or other measures to criminalise the intentional causing, for sexual purposes, of a child who has not reached the age set in application of Article 18, para- graph 2, to witness sexual abuse or sexual activities, even without having to participate. Article 23 – Solicitation of children for sexual purposes Each Party shall take the necessary legislative or other measures to criminalise the intentional proposal, through information and com- munication technologies, of an adult to meet a child who has not reached the age set in application of Article 18, paragraph 2, for the purpose of committing any of the offences established in accordance with Article 18, paragraph 1.a, or Article 20, paragraph 1.a, against him or her, where this proposal has been followed by material acts leading to such a meeting. Article 24 – Aiding or abetting and attempt 1Each Party shall take the necessary legislative or other measures to establish as criminal offences, when committed intentionally, aiding or abetting the commission of any of the offences estab- in accordance with this Convention. 2Each Party shall take the necessary legislative or other measures to establish as criminal offences, when committed intentionally, attempts to commit the offences established in accordance with this Convention. 3Each Party may reserve the right not to apply, in whole or in part, paragraph 2 to offences established in accordance with Article 20, paragraph 1.b, d, e and f, Article 21, paragraph 1.c, Article 22 and Article 23. Article 25 – Jurisdiction 1Each Party shall take the necessary legislative or other measures to establish jurisdiction over any offence established in accordance with this Convention, when the offence is committed: ain its territory; or bon board a ship flying the flag of that Party; or con board an aircraft registered under the laws of that Party; or dby one of its nationals; or eby a person who has his or her habitual in its territory. 2Each Party shall endeavour to take the necessary legislative or other measures to establish jurisdiction over any offence estab- in accordance with this Convention where the offence is committed against one of its nationals or a person who has his or her habitual in its territory. 3Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of , declare that it reserves the right not to apply or to apply only in specific cases or conditions the jurisdiction rules laid down in paragraph 1.e of this article. 4For the prosecution of the offences established in accordance with Articles 18, 19, 20, paragraph 1.a, and 21, paragraph 1.a and b, of this Convention, each Party shall take the necessary legi- slative or other measures to ensure that its jurisdiction as re- gards paragraph 1.d is not subordinated to the condition that the acts are criminalised at the place where they were per- formed. 5Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of , declare that it reserves the right to limit the appli- cation of paragraph 4 of this article, with regard to offences established in accordance with Article 18, paragraph 1.b, second and third indents, to cases where its national has his or her habitual in its territory. 6For the prosecution of the offences established in accordance with Articles 18, 19, 20, paragraph 1.a, and 21 of this Conven- tion, each Party shall take the necessary legislative or other measures to ensure that its jurisdiction as regards paragraphs 1.d and e is not subordinated to the condition that the prosecution can only be initiated following a report from the victim or a denunciation from the State of the place where the offence was committed. 7Each Party shall take the necessary legislative or other measures to establish jurisdiction over the offences established in accordance with this Convention, in cases where an alleged offender is present on its territory and it does not extradite him or her to another Party, solely on the basis of his or her nationality. 8When more than one Party claims jurisdiction over an alleged offence established in accordance with this Convention, the Parties involved shall, where appropriate, consult with a view to deter- mining the most appropriate jurisdiction for prosecution. 9Without prejudice to the general rules of international law, this Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with its internal law. Article 26 – Corporate liability 1Each Party shall take the necessary legislative or other measures to ensure that a legal person can be held liable for an offence established in accordance with this Convention, committed for its benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on: apower of representation of the legal person; ban authority to take decisions on behalf of the legal person; can authority to exercise control within the legal person. 2Apart from the cases already provided for in paragraph 1, each Party shall take the necessary legislative or other measures to ensure that a legal person can be held liable where the lack of supervision or control by a natural person referred to in para- graph 1 has made possible the commission of an offence estab- in accordance with this Convention for the benefit of that legal person by a natural person acting under its authority. 3Subject to the legal principles of the Party, the liability of a legal person may be criminal, civil or administrative. 4Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offence. Article 27 – Sanctions and measures 1Each Party shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness. These sanctions shall include penalties involving deprivation of which can give rise to extradition. 2Each Party shall take the necessary legislative or other measures to ensure that legal persons held liable in accordance with Article 26 shall be subject to effective, proportionate and dissuasive sanctions which shall include monetary criminal or non-criminal fines and may include other measures, in parti- cular: aexclusion from entitlement to public benefits or aid; btemporary or permanent disqualification from the practice of commercial activities; cplacing under judicial supervision; djudicial winding-up order. 3Each Party shall take the necessary legislative or other measures to: aprovide for the seizure and confiscation of: -goods, documents and other instrumentalities used to commit the offences established in accordance with this Convention or to facilitate their commission; -proceeds derived from such offences or property the value of which corresponds to such proceeds; benable the temporary or permanent closure of any establish- ment used to carry out any of the offences established in accordance with this Convention, without prejudice to the rights of bona fide third parties, or to deny the perpetrator, temporarily or permanently, the exercise of the professional or voluntary activity involving contact with children in the course of which the offence was committed. 4Each Party may adopt other measures in relation to perpetrators, such as withdrawal of parental rights or monitoring or super- vision of convicted persons. 5Each Party may establish that the proceeds of crime or property confiscated in accordance with this article can be allocated to a special fund in order to finance prevention and assistance pro- grammes for victims of any of the offences established in accordance with this Convention. Article 28 – Aggravating circumstances Each Party shall take the necessary legislative or other measures to ensure that the following circumstances, in so far as they do not already form part of the constituent elements of the offence, may, in conformity with the relevant provisions of internal law, be taken into consideration as aggravating circumstances in the determination of the sanctions in relation to the offences established in accordance with this Convention: athe offence seriously damaged the physical or mental health of the victim; bthe offence was preceded or accompanied by acts of torture or serious violence; cthe offence was committed against a particularly vulnerable victim; dthe offence was committed by a member of the family, a person cohabiting with the child or a person having abused his or her authority; ethe offence was committed by several people acting together; fthe offence was committed within the framework of a criminal organisation; gthe perpetrator has previously been convicted of offences of the same nature. Article 29 – Previous convictions Each Party shall take the necessary legislative or other measures to provide for the possibility to take into account final sentences passed by another Party in relation to the offences established in accordance with this Convention when determining the sanctions. Chapter VII – Investigation, prosecution and procedural law Article 30 – Principles 1Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child. 2Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the crimi- nal response is followed by assistance, where appropriate. 3Each Party shall ensure that the investigations and criminal pro- ceedings are treated as priority and carried out without any unjustified delay. 4Each Party shall ensure that the measures applicable under the current chapter are not prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. 5Each Party shall take the necessary legislative or other measures, in conformity with the fundamental principles of its internal law: -to ensure an effective investigation and prosecution of offences established in accordance with this Convention, allowing, where appropriate, for the possibility of operations; -to enable units or investigative services to identify the victims of the offences established in accordance with Article 20, in particular by analysing child pornography material, such as photographs and audiovisual recordings transmitted or made available through the use of infor- mation and communication technologies. Article 31 – General measures of protection 1Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by: ainforming them of their rights and the services at their dis- posal and, unless they do not wish to receive such informa- tion, the follow-up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein as well as the outcome of their cases; bensuring, at least in cases where the victims and their families might be in danger, that they may be informed, if necessary, when the person prosecuted or convicted is released tempo- rarily or definitively; cenabling them, in a consistent with the procedural rules of internal law, to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and con- sidered; dproviding them with appropriate support services so that their rights and interests are duly presented and taken into account; eprotecting their privacy, their identity and their image and by taking measures in accordance with internal law to prevent the public dissemination of any information that could lead to their identification; fproviding for their safety, as well as that of their families and witnesses on their behalf, from intimidation, retaliation and repeat victimisation; gensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided, un- less the competent authorities establish otherwise in the best interests of the child or when the investigations or proceedings require such contact.