Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 79
Octubre
Diciembre
2023
Recibido el 09/08/23 Aceptado el 22/09/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 79 (2023), 384-401
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Criminalization of actions related to
sexual violence against children: Legal
regulation, international experience,
administrative and penal aspects
DOI: https://doi.org/10.46398/cuestpol.4179.26
Nataliia Yuzikova *
Svitlana Khomiachenko **
Olena Lakhova ***
Galyna Muliar ****
Oleksandr Holovkov *****
Abstract
The article is devoted to the problems of protecting a child
from sexual violence by legal means, namely by criminalizing
illegal acts in accordance with the principles, directives and
framework decisions of the European Union. To achieve this
goal, scientic research methods were used, in particular formal logical,
statistical, systematic and comparative legal methods. The works of
scientists dealing with this topic were also analyzed. Within the framework
of the research, a legal analysis of international standards (conventions,
directives, draft decisions of the European Union), decisions of the ECtHR
aimed at protecting the rights of the child against sexual violence and their
implementation in the new paradigm of criminal law was carried out.
Finally, the article presents the analysis of the legislative framework for
the protection of children’s rights and a new version of the Criminal Code
of Ukraine, which criminalizes acts of a sexual nature against a child and
liability for the distribution of pornographic content among minors. It is
* Doctor of Science of Law, Professor, Professor of the Department of Administrative and Criminal Law,
of the Oles Honchar Dnipro National University. Dnipro, Ukraine. ORCID ID: https://orcid.org/0000-
0003-0879-2228. Email: yzikovans@ua.fm
** Candidate of Legal Sciences, Associate Professor, Associate Professor of the Department of Law
Vinnytsia Institute of Trade and Economics of State University of Trade and Economics, Vinnytsia,
Ukraine. ORCID ID: https://orcid.org/0000-0002-1223-5881. Email: s.homiachenko@vtei.edu.ua
*** Candidate of Legal Sciences, Associate Professor, Associate Professor of the Department of
Administrative and Criminal Law, of the Oles Honchar Dnipro National University, Dnipro, Ukraine.
ORCID ID: https://orcid.org/0000-0001-7192-492X. Email: lav1982@meta.ua
**** Doctor of legal sciences, professor of the department of criminal law, process and Forensics, Academy
of Labor, Social Relations and Tourism, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0003-
2636-0509. Email: box0007@meta.ua
***** PhD in Law, Lecturer of the department of tactical and special training of Faculty No. 2, Donetsk State
University of Internal Aairs. Ukraine. ORCID ID: https://orcid.org/0009-0005-4649-539X. Email:
a.golovkov@ukr.net
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 384-401
concluded that compliance with international standards, the acquisition of
a new status by Ukraine requires adequate political will and readiness to
update the national legislation.
Keywords: sexual violence against children; legal regulation;
international experience; administrative and criminal
aspects; child protection.
Penalización de acciones relacionadas con la violencia
sexual contra el niño: Regulación jurídica, experiencia
internacional, aspectos administrativos y penales
Resumen
El artículo está dedicado a los problemas de proteger a un niño de la
violencia sexual por medios legales, a saber: penalizando actos ilegales
de acuerdo con los principios, directivas y decisiones marco de la Unión
Europea. Para lograr este objetivo, se utilizaron métodos de investigación
cientícos en particular métodos lógicos formales, estadísticos, sistemáticos
y jurídicos comparativos. También se analizaron los trabajos de los
cientícos que se ocuparon de este tema. En el marco de la investigación,
se realizó un análisis jurídico de las normas internacionales (convenios,
directivas, proyectos de decisiones de la Unión Europea), decisiones del
TEDH destinadas a proteger los derechos del niño contra la violencia
sexual y su implementación en el nuevo paradigma del derecho penal.
Finalmente, en el artículo se presenta el análisis del marco legislativo para
la protección de los derechos del niño y una nueva versión del Código Penal
de Ucrania, que penaliza los actos de naturaleza sexual contra un niño y
la responsabilidad por la distribución de contenido pornográco entre
menores. Se concluye que cumplimiento de las normas internacionales, la
adquisición de un nuevo estatus por parte de Ucrania requiere una voluntad
política adecuada y la disposición a actualizar la legislación nacional.
Palabras clave: violencia sexual contra el niño; regulación jurídica;
experiencia internacional; aspectos administrativos y
penales; protección del niño.
Introduction
The future of any society and all mankind depends on the level of
spiritual, moral and physical development of the younger generation, their
386
Nataliia Yuzikova, Svitlana Khomiachenko, Olena Lakhova, Galyna Muliar y Oleksandr Holovkov
Criminalization of actions related to sexual violence against children: Legal regulation, international
experience, administrative and penal aspects
understanding of the role and signicance of human rights in the life of
individuals and society, as well as responsibility for their fate and actions.
Respect for human rights begins with the attitude of society towards the
child. This means child rights and their provision depend on a conscious,
purposeful state policy at the European, national, regional and local
levels and the activities of non-governmental public organizations that
unconditionally recognize the self-worth of the childhood, their specic
interests and needs, and create necessary socio-economic and political
conditions for their life and acceptable socialization.
On June 23, 2022, the leaders of 27 EU member states decided to grant
Ukraine the status of a candidate for EU membership. Within the legal
framework, the European integration vector of the Ukraine’s development
was xed, which our society continues to ght for under martial law.
Ukraine is moving along the path of democratic transformation,
protection of human and civil rights and interests. On the one hand,
certain opportunities have opened up for the country, and on the hand,
this requires a responsible attitude to the obligations assumed, especially
in protecting interests of the child from criminal encroachments. Status of
a candidate requires appropriate adaptation of the national legislation to
“acquis communautaire” of the European Union.
In view of the above, the need for a comprehensive study of the problems
of criminalization of acts related to sexual violence against a child in
accordance with “acquis communautaire” of the European Union.
The article will address the problem of protecting the child from sexual
violence by criminal legal means, namely by criminalizing illegal acts in
accordance with international principles, provisions of directives and
framework decisions of the European Union. Taking into account the
above, the purpose of the article is the legal analysis of international norms
(conventions, directives, framework decisions of the European Union),
decisions of the ECHR aimed at protecting rights of the child from sexual
violence and their implementation in the new paradigm of the national
criminal law.
1. Literature review
General theoretical issues of criminalization of the acts related to sexual
violence against a child in accordance with “acquis communautaire” of the
European Union are given considerable attention in the works of many
scientists.
Khavronyuk, within the framework of the study of the criminal legislation
of the counties of continental Europe, quite thoroughly considered the
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 384-401
issues of regulating criminal liability for sexual crimes against minors
(Khavronyuk, 2006).
Gatselyuk in his research “Criminalization of socially dangerous acts
during the operation of the Criminal Code of Ukraine of 2001: recent stories
against the background of the general palette of legislative decisions”
analysed trends in criminalization of socially dangerous acts, the social
context against which it took place, and the problems that arose as a result
of dynamic-making activities in the eld of criminal law (Gatselyuk, 2021).
Golovko and other authors have studied the history of the legislation
formation on the prevention and protection against domestic violence
in Ukraine, as well as the features of judicial protection of victims of
domestic violence in individual countries, legislative support for this type
of protection, and legislation in the eld of countering domestic violence
(Golovko et al., 2023).
Riabchynska O.P. in her works considered harmonization directions
of the domestic criminal legislation on the prohibition of the distribution
of child pornography with international legal standards in the protection
of children rights from sexual exploitation and use in the porn business,
taking into account the latest changes and amendments to Article 301 of the
CC of Ukraine (Riabchynska, 2010).
In addition, certain aspects of the problem of protecting children from
violence and other illegal actions during hostilities were the subject of
research of such scientists and international lawyers as: М. Antonovych,
М. Gnatovsky, А. Matsko, А. Pshenychna, V. Repetytsky, О. Shevchneko-
Bitenska and others.
Despite active study of the problem of protecting children from sexual
violence in Ukraine, the issues of criminalization of the acts related to
sexual violence against a child in accordance with “acquis communautaire”
of the European Union has not been studied separately.
2. Materials and methods
In the study, the methods are used that meet the purpose of the article
and are based on a dialectical-comparative platform necessary and sucient
to reveal the European integration vector of the Ukraine’s development in
the eld of the child protection against sexual violence in accordance with
the EU “acquis communautaire” standards.
In particular, the formal-logical method is used in the study of the
content of legal norms that provide responsibility for committing sexual
sexual violence against a child, comparative-legal – by the analysis of the
388
Nataliia Yuzikova, Svitlana Khomiachenko, Olena Lakhova, Galyna Muliar y Oleksandr Holovkov
Criminalization of actions related to sexual violence against children: Legal regulation, international
experience, administrative and penal aspects
criminal legislation of the European Union and Ukraine, which provides for
responsibility for child tracking, child prostitution and child pornography,
statistical when summarizing the data from statistical materials of the
General Prosecutor Oce of Ukraine, the Judiciary, the National Police
of Ukraine, the Ministry of Social Policy on quantitative indicators of
sexual violence against a child; praxeological method – using the ideas of
praxeology in the methodological training of specialists in sexual education
and protection of sexual freedom and inviolability for children of dierent
age categories; system method – is to systematize and generalize the source
base of the study. Using the predictive method, proposals were made to
improve the legislation of Ukraine in the eld of protecting children from
sexual violence by criminal means.
3. Results and discussion
In available scientic works, these aspects were covered either
fragmentally or within a much broader problem. These scientic works
were also submitted to the scientic community prior to amendments to
the Criminal Code of Ukraine in accordance with the Lanzarote Convention.
The eectiveness of the Ukraine’s entry into the European Union
depends on the quality of reforming those legal institutions that are
designed to ensure proper legal protection of the rights and freedoms
of the child from criminal encroachments, including sexual protection.
A signicant component of this process in the criminal law aspect is the
streamlining of the criminal legislation of Ukraine in accordance with
“acquis communautaire” of the European Union.
This process should take place in two directions, namely, rst, in the
humanization of the criminal legislation of Ukraine and the search for
alternative measures of the impact of criminal law aimed at general and
special prevention, elimination of the factors and acts that determine it,
and secondly, the application of strict measures, including criminal law, to
the persons who committed criminal oenses against a child, endanger the
most important values and interests of the child.
Violence against children is any intentional, unlawful act or omission
or threat of using an action or an omission of a psychological, economic,
physical, sexual nature against a child in or out of the family, if these actions
or omissions cause moral or material damage, harm to physical, mental
health, moral development of the child, including systematic violence
(physical, psychological economic, sexual) of some children over others,
committing violence in any form in the presence of the child (Lesko, 2019)
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 384-401
Sexual violence against children is a shameful phenomenon that occurs
in all countries of the world. They are considered by the international
community to be one of the worst forms of violence against a child. Sexual
violence against children can take various forms; occur in a real or virtual
dimension; in a circle of people whom the child knows and trsust well
(family, peers). Conicts, violence, humiliation, neglect that accompany the
minor at dierent stages of its socialization within the family, further lead
to the break with the family (Yuzikova et al., 2021).
The increase in sexual violence against a child, including the actualization
of child pornography, is a problem that has become acute in recent years in
Ukraine, due to the education deformation, pseudo-democracy in sexual
relations. І. Venedyktova (in the report of 01.06.21), with reference to
the Internet Watch Foundation data, noted that Ukraine is one of the top
three countries that provide child pornography. According to the General
Prosecutor Oce, the number of oenses against sexual freedom and
inviolability increased by 21% in 2021. Of these, every fourth case of sexual
violence against a child, in 60% of cases, the victims are children under 14
years of age (Venedyktova, 2021).
During 7 months of 2023, 1,943 criminal proceedings were opened,
including: under art. 301 CC of Ukraine (Import, production, sale,
distribution of pornographic objects) – 699 and art. 301-1 CC of Ukraine
(Access to child pornography, its acquisition, storage, import, transportation
or other premises, manufacture, sale and distribution) - 1244. At that time,
of 699 proceedings were opened for the import, manufacture, sale and
distribution of pornographic objects, then almost twice as many cases were
opened for porn content related children – 1244 proceedings. This indicator
is higher than the number of similar proceedings in 2022, when 1,880 cases
were taken in to account, of which: art.301 CC of Ukraine — 785 and under
art.301-1 CC of Ukraine — 1095 (Statistics of Prosecutor General Oce).
The issue of domestic violence, especially sexual violence, in Ukraine
during martial law has not lost its relevance. At the same time, the armed
conict exacerbates the problem of violence against a child, which turns
out to be the most unprotected and aects the dynamics of the indicators of
committing violent acts against children. At the same time, it is not possible
to provide an objective analysis of the data because part of the territories
of Ukraine is under occupation, and in the de-occupied territories these
issues are not given due attention, and information about children who for
various reasons were abroad is not available for criminological analysis and
response.
Thus, according to the PGO data for 2020, the number of victims of
criminal oenses related to domestic violence is 199 people (80 –adults, 119
- minors). In 2021, this gure is 419 children who suered from domestic
violence (192 – adults, 227 – minors). And for 7 months 2023, 288 victims
390
Nataliia Yuzikova, Svitlana Khomiachenko, Olena Lakhova, Galyna Muliar y Oleksandr Holovkov
Criminalization of actions related to sexual violence against children: Legal regulation, international
experience, administrative and penal aspects
of domestic violence (123 – minors, 155 – small children) were registered
(Statistics of PGO, 2020-2023).
As can be seen from Statistics, the lion’s share of victims are minors-
children under 14 years old. This should be taken into account when
developing the measures to protect children from sexual violence. It is
advisable to fully use the services of international consultants in the eld
of protection and observance of children’s rights during the war and in the
post-war period in accordance with the CE Project “Protection of children’s
rights during the war and in the post-war period in Ukraine” (Council of
Europe oce in Ukraine.).
Carrying out a detailed criminological analysis of the facts of violation
sexual freedom and inviolability of the child and acts in the eld of juvenile
morality, it is necessary to note positive changes over the past two years
in allocation of statistical indicators of the individual content in this area.
Thus, according to the PGO data, in addition to domestic violence, there
are categories of victims of the acts that are object of our research. These
are: children who suered (minors, small children) from sexual violence
(art. 153 CC of Ukraine), committing sexual acts with a person under the
age of sixteen (art. 155 CC of Ukraine), corrupting the minors (art.156 CC of
Ukraine), harassing a child for sexual purposes (art. 156-1 CC of Ukraine).
Today, there are not isolated facts of sexual violence against children
who were forced to leave Ukraine, attracting them to participate in the
porn business. Thus, relatives who stay in Ukraine for the protection of
their children who left with their mothers and other guardians apply to
law enforcement agencies. For example, relatives receive information from
a child through various messengers that they became victims of various
sexual crimes, take nude photos, and in Ukraine there is no mechanisms
for cooperation with relevant departments in other countries to verify this
information, because it can be an invention of the child, a desire to take
revenge on parents, or real actions that violate the child’s sexual freedom
and inviolability.
Therefore, it is important, rstly, to obtain the services of international
consultants in the eld of protection and observance of child rights during
the war and in post-war period; secondly, to establish international
cooperation between national and foreign specialized law enforcement
agencies that carry out measures in preventing sexual violence against a child
and countering child pornography, thirdly, to coordinate and eectively
interact with specially authorized bodies that take measures in preventing
sexual violence against a child and countering child pornography.
This requires the formation of modern eective approaches to the
system of countering oenses and protecting the child from sexual violence
in the content of modern challenges and threats, especially those related
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 384-401
to the use of information and telecommunication systems or technologies
on the basis of a detailed, objective criminological analysis of the relevant
statistical data.
A peculiarity of the modern information environment based on Internet
technologies, lies in their inuence on the social behaviour of the child and
acts as a special form of cyber violence (cyber bullying, cyber harassment,
cyberstalking, porn revenge, etc.) In the ECHR decision (in case Volodina
v. Russia, 2019) on revenge porn and cyberstalking, the court recognized
that Internet violence is a form of violence against a person (Volodina
v. Russia, 2019). In addition, the court recognized that cyber violence is
closely related to oine violence in life and is another aspect of domestic
violence. Also, the ECHR decision notes the duty of the state to protect the
individual from cyber violence.
The National Policy of Ukraine in the led of child protection from sexual
violence is based on international rules, principles, takes into account EU
directives, framework decisions and directs the reform vector of changes
in the legislation in accordance with “acquis communautaire” of the EU.
This contributes to the formation of new approaches, principles of humane,
constructive and eective treatment of minors, the creation of appropriate
conditions of acceptable socialization of the child and the formation of a
safe juvenile environment.
In the process of determining the priority decisions of the national policy
in the eld of protection of rights and interests of the child, it is necessary
to take into account international conventions, resolutions, directives,
framework decisions, which are theoretically and practically signicant for
the Ukrainian law-making and law enforcement system and that propose
appropriate program measures to create a safe environment for acceptable
juvenile prevention.
It is also important to consider those international provisions that are
fully consistent with the basic principles of the Ukrainian legal system and
are objectively aimed at the eective preventing and countering juvenile
delinquency in Ukraine. At the same time, the historical sequence should
remain unchanged, based on the established traditions of the Ukrainian
people and the national legal culture, both in social and personal aspects.
This does not change the state policy vector on the prevention of crimes
among minors, but forms a reliable basis that has a national colouring,
clear ideological and cultural components.
The main thing by implementing international norms and standards
is to preserve the national interests of Ukraine, which is possible if the
originality of means for protecting rights and freedoms of the child
in Ukraine is preserved; measures to prevent and counteract juvenile
delinquency; its own system of juvenile criminal justice, which reect the
392
Nataliia Yuzikova, Svitlana Khomiachenko, Olena Lakhova, Galyna Muliar y Oleksandr Holovkov
Criminalization of actions related to sexual violence against children: Legal regulation, international
experience, administrative and penal aspects
economic, political, ideological, religious, cultural and educational features
and identity of Ukraine.
The need for international legal regulation of the children treatment
has emerged relatively recently. Disastrous consequences of the World
War First on the civilian population and the growing interest to the issue
of child protection in most countries of Europe and North America caused
the creation of the Committee of Child Welfare by the League of Nations in
1919, and the Committee’s activities are aimed at combating the spread of
the child homeliness and child tracking. During the interwar period, non-
governmental organizations played a signicant role in the development of
norms for protection of child rights.
Thus, the International Union for saving children was founded,
within which framework a declaration was developed that contained the
basic conditions that society must adhere to the protection of children.
The Geneva Declaration of Child Rights of 1924 established for the rst
time at the international level the need for special protection of children
as the most important group of population (Declaration of Child Rights,
1924). However, at that time the world society did not have any eective
organizational structure for the implementation of goals proclaimed by the
Declaration (Mariëlle et al., 2021).
The international community, while attaching great importance to the
rights of children, their survival, protection and development, and directing
its actions in the highest interests of humanity, is trying to ensure well-
being of children in the whole world. But the eorts to provide a socially
acceptable space for the child’s development and well-being have not been
fully implemented. Overall achievements are not consistent with national
and international obligations. Based on this, the World Declaration and
Plan of Actions “A World Fit for Children” (hereinafter – Declaration
and Plan of Action), adopted by the Resolution S-27/2 of the UN General
Assembly on May 10, 2002, refers to important international obligations of
the 90-s of the previous century (World Declaration and Plan of Action “A
World Fit for Children”, 2002).
The main provisions are implemented in legislation and law enforcement
practice, and the implementation is constantly monitored. Annual reviews
are conducted at the national level and progress reports are submitted by
the UN General Assembly.
The Declaration and Plan of Actions set out criteria for determining
a world t for children. These include: opportunity to get best possible
conditions at an early age and have access to quality basic education,
including primary education, which is mandatory and free of charge;
availability of extensive opportunities to develop their individual abilities in
a safe and acceptable environment. The Declaration and Plan of Actions is
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 384-401
aimed at ensuring favourable physical, mental, spiritual, social, economic,
cognitive and cultural development of the child as a priority area of national
and global actions.
The Optional Protocol to the Convention of Child Rights on the tracking
of children, children prostitutions and children porn (hereinafter – the
Optional Protocol) is aimed at protection and harmonious development
of the child and the implementation of modern measures to be taken by
member states to guarantee protection of the child against the practice of
the child tracking, child prostitution and child pornography (Optional
Faculty to the Convention on Child Rights on the Child Tracking, Child
Prostitution and Child Pornography).
Implementation of the main provisions of the Optional Protocol will
contribute to the adoption of the optimal and universal approach that takes
into account that factors that determine the development of tracking
children, child prostitution and child pornography, including insucient
social development, impoverishment of population, economic imbalances,
unequal socio-economic structure, low level of education, presence of
dysfunctional families, migration, gender discrimination, irresponsible
sexual behaviour of adults, armed conicts and child smuggling.
Special scientic-practical attention should be paid to Directive
2011/36/ЄС of April 5, 2011 on preventing and combating tracking in
human beings and protecting its victims, and on the replacement of the
Council Framework Decision 2002/629/JHA (Directive 2011/36/EU of
the European Parliament and of the Counci on preventing and combating
tracking in human beings and protecting its victims, 2011), which states
that “children are more vulnerable than adults, therefore, they have a higher
risk of becoming victims of human tracking. By applying this Directive,
the best interests of the child should be paramount, in accordance with the
EU Charter of Fundamental Rights and the UN Convention of Child Rights
of 1989”.
The next international legal act relating the subject of the article is
Directive 011/92/ЄС of December 13, 2011 on combating sexual violence
and sexual exploitation of children and child pornography and replacing
the Council Framework Resolution 2004/68/JHA (Resolution 2011/92/ЄС
of December 13, 2011 on combating sexual violence and sexual exploitation
of children and child pornography, 2011). The Directive sets up minimum
rules for the denition of criminal oenses and sanctions for sexual abuse
and sexual exploitation of children, child pornography and involvement of
children for sexual purposes. The document also contains the provisions to
strengthen measures to protect victims of sexual violence and prevent these
criminal oenses.
394
Nataliia Yuzikova, Svitlana Khomiachenko, Olena Lakhova, Galyna Muliar y Oleksandr Holovkov
Criminalization of actions related to sexual violence against children: Legal regulation, international
experience, administrative and penal aspects
The Council Framework Decision 2004/68/JHA of December 22, 2003
on combating sexual exploitation of children and child pornography (Council
Framework Decision 2004/68/JHA on combating sexual exploitation of
children and child pornography, 2003) forwards the legislation of member
states to criminalize the most serious forms of child sexual abuse and sexual
exploitation, expands domestic jurisdiction and provides a minimum level
of assistance to victims.
The Framework Decision 2001/220/JHA of March 15, 2001 on the status
of victims in criminal proceedings, establishes a set of rights of victims in
criminal proceedings, including the right to protection and compensation.
In this context, it should be noted that the right to protection and
compensation is reected in relevant ECHR decisions. Thus, in case C.A.S.
AND C.S. v. ROMANIA regarding evasion from an eective investigation
into sexual violence against a child (Сase of C.A.S. and C.S. v. Romania).
The case states that an adult man sexually assaulted a seven-year-old boy,
showed a knife, threatened to kill the child if he told something about what
had happened. Sexual assault lasted for several months.
When the child’s parents found out about the crime, they reported it to
the police and the investigation began. Witnesses conrmed that the man
was near the child and went to the apartment. Two medical examinations
revealed numerous injuries to the child that were caused as a result of
sexual violence.
The investigation was suspended three times. The suspect was detained
and taken to court, but acquitted. Domestic courts found that the parties
and witnesses had given conicting statements and the parents had
contacted the police after a lengthy period of time. The courts also noted
that the applicant had not given and accurate description of the facts and
had been prone to fantasy. The European Court of Justice found that despite
the victim’s particular vulnerability, the investigation was not eective and
urgent (it lasted almost 5 years).
A medical examination was ordered only three weeks later, and the
suspect was questioned two months later. The concern was caused by
the fact that domestic courts drew attention to the fact that the family
didn’t immediately contact the police, but ignored the duration of the
investigation, did not compare the facts, did not take into account the
psychoemotional state of the seven-year-old boy. The European Court of
Justice notes that, under article 3 and article 8 of the Convention, have
an obligation to ensure eective criminal investigation of cases concerning
violence against children, giving priority to their best interests.
Taking into account the case le, the victim never used the advice or
support of a qualied psychologist during the rape trial or later. The failure
to respond adequately to allegations of sexual abuse of a child raises doubts
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about the eectiveness of the juvenile system. Therefore, the authorities
had failed to carry out an eective investigation and to ensure adequate
protection of the child’s personal and family life. Taking into account
the case le, Romania was ordered by the ECHR to pay the applicant
compensation for non-pecuniary damage in the amount of EUR 15,000.
It should be noted that any child can become a victim of sexual violence,
regardless of age, gender, cultural or social aliation, since children do not
yet have the experience and knowledge necessary to understand or explain
what is happening to them. Since child sexual abuse is usually a crime that
is carefully hidden by both the victim and the environment, its real scope is
dicult to assess (Kovalska, 2018).
Coordination of prosecutions in cases of sexual abuse, sexual exploitation
of children and child pornography will contribute to the implementation
of the Framework Decision 2009/948/JHA of November 30, 2009 on
prevention and settlement of conicts of exercise of jurisdiction in criminal
cases (Council Framework Decision 2009/948/JHA of 30 November
2009 on prevention and settlement of conicts of exercise of jurisdiction
in criminal proceeding, 2009). Provisions of the Framework Decision
correlate with Article 34 of the UN Convention of Child Rights (UN
Convention of Child Rights, 1991), which states that the parties undertake
to protect the child from all forms of sexual exploitation and sexual violence.
Moreover, the Convention emphasizes the adoption of preventive measures
against three types of criminal behaviour, namely: inducing or forcing the
child to engage in any illegal sexual activity; use of children for the purpose
of exploitation or prostitution or other illegal practices; use of children
for the purpose of exploitation in pornography or pornographic materials
(Leheza, 2021).
The Stockholm Program — open and safe Europe that serves and protects
citizens (2010/c 115/01) (The Stockholm Program, 2010) highlights the eld
of child protection, namely the principle of the best interests of the child.
This vector concerns the right of the child to life, survival and development,
non-discrimination and respect for the right to express one’s opinion and
to be truly heard in all matters concerning children, in accordance with
age and level of development, which were proclaimed in the Charter of
Fundamental Rights of the European Union and the UN Convention of
Child Rights, and relate to all EU policies. The European Council calls on
the Commission to identify the measures that the EU can take to protect
and promote rights of the child. At the same time, attention is focused on
the protection of various categories of children, namely:
• those who are in particularly vulnerable conditions;
• those who are victims of sexual exploitation and abuse;
• those who are victims of human tracking;
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Nataliia Yuzikova, Svitlana Khomiachenko, Olena Lakhova, Galyna Muliar y Oleksandr Holovkov
Criminalization of actions related to sexual violence against children: Legal regulation, international
experience, administrative and penal aspects
• unaccompanied minors in the context of the EU migration policy.
The strategy of the Council of Europe on the child rights (2022-2027)
aims to cover all categories of human rights, as well as outline the goals
and priorities of human rights, and outlines the goals and priorities of the
Council of Europe and its member states to protect the rights of children
and make these rights as reality for all children through six priority areas of
the activity for the period of 2022 till 2027 (Strategy, 2022).
At the national level, it is appropriate to adopt the comprehensive
strategies for eective promotion and protection of the child rights, in
accordance with aforementioned strategy of the Council of Europe on
the rights of children and for the harmonization of a common vision and
development of a common coordinate system with specic and time-limited
goals for the child protection from sexual violence.
The EU Convention on the child protection from sexual exploitation
and sexual violence (the Lanzarote Convention) was developed as a
comprehensive tool for a common national response to all forms of
sexual abuse of children. It contains recommendations for addressing the
problem of countering sexual violence against a child by strengthening
the national regulatory framework and engaging civil society and other
relevant stakeholders to improve the authorities’ response to all forms of
sexual violence against children (Convention of the EU Council on the child
protection from sexual exploitation and sexual violence, 2012).
The Law of Ukraine on amendments to certain legislative acts of Ukraine
concerning the implementation of the Convention of EU Council on the
protection of children from sexual exploitation and sexual violence (the
Lanzarote Convention) of 18.02.2021 establishes criminal legal forms of
the child protection of a child from sexual abuse. The law states that sexual
exploitation of children, in particular the forms of child pornography and
prostitution, as well as all other forms of sexual violence against children,
including acts committed abroad, are destructive to children’s health and
psychological development (The Lanzarotta Convention), 2021). Most
often, children between the ages from 9 to 13 were involved in creating
sexual content.
Criminals take advantage of the vulnerable state of children. Such
criminal oenses are committed for sexual and self-serving reasons.
Consumers of pornographic content have a sexual motive. Creation and
distribution of the content containing child pornography using information
and communication systems or technologies is most often carried out by
organized criminal groups for selsh reasons. Organized criminal groups
have a clear hierarchical structure, which includes as follows: organizer;
recruiters; directors; performers; distributors of pornographic content
(Knyzhenko, 2022).
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Conclusions
Compliance with international norms and principles, acquisition of a
new status by Ukraine requires appropriate political will and readiness to
update national legislation, reform social institutions that ensure stable
development of the state, protect the rights of minors and modernize the
system of preventing illegal actions against them.
Summing up, it should be noted that the European integration process
concerns the adaptation of the national legislation to the main provisions
of the EU Conventions, Programs, Directives and Framework Decisions,
which, among other things, relate to the protection of the child from sexual
violence and sexual exploitation. At the same time, it should be noted that
despite a high level of the legal regulation in the national legislation of
the child protection from sexual violence and sexual exploitation with the
consolidation of the basic principles of sexual morality, the level of sexual
education for children of dierent age categories remains unsatisfactory.
Taking into account foreign experience of an eective and responsible level
of sexual education, it is advisable to start from early ages of a child’s life.
The value of international experience in the formation of the measures
system to prevent sexual violence lies in the possibility of coordination and
eective international cooperation between national and foreign specialized
law enforcement agencies that prevent sexual violence against a child and
child pornography, obtaining services from international consultants in
protecting and observing the child rights during the war and in the post-
war period.
The main areas of preventive measures include as follows: raising the
awareness level of the population about the forms, manifestations, causes
and consequences of sexual violence against a child; forming an intolerant
attitude to various models of sexual violence against a child in society,
spreading child pornography, caring for victims, awareness of juvenile
sexual violence and porn context as a violating children rights; forming a
model of sexual education for children of dierent age categories ensuring
coordination and eective interaction of specially authorized bodies that
carry out the measures in the eld of preventing sexual violence and
countering child pornography, other bodies and institutions that perform
the functions related to the implementation of the events in the juvenile
sphere; providing a child aected by sexual violence with access to
comprehensive services focused on his needs; providing access to general
and specialized support services for victims to receive aordable, high-
quality social services, medical, social, psychological assistance, access to
justice and other legal protection mechanisms; training and improving the
level of professional competence of subjects implementing the measures in
the eld of preventing sexual violence and countering child pornography.
398
Nataliia Yuzikova, Svitlana Khomiachenko, Olena Lakhova, Galyna Muliar y Oleksandr Holovkov
Criminalization of actions related to sexual violence against children: Legal regulation, international
experience, administrative and penal aspects
A positive experience and a step towards the implementation of directives,
framework decisions and the Convention on the protection of child rights
should be considered the criminalization of acts of a sexual nature against
a minor; child pornography; in volving a child in a spectacular event of a
sexual nature, including with the use of information and telecommunication
systems or technologies; child harassment for sexual purposes.
It is necessary to develop a national strategy for the child protection
from sexual violence and sexual exploitation, in the formation of which it
is important to take into account the CM/Rec (2018)7 Recommendation of
the Cabinet of Ministers to member states on the principles of observing
the protection and implementation the rights of children in a digital
environment.
There is a problem of protecting children who were taken out of
Ukraine to avoid sexual violence. This requires legislative regulation of
the mechanism for urgent verication of information and adoption of
urgent security to protect the child. Moreover, it is necessary to establish
international cooperation and receive services of international consultants
in the eld of protection and observance of children’s rights during the war
and in the post-war period. I is advisable to use the services of international
consultants by protection and observance of child right during the war and
in the post-war period in accordance with the Project “Protection of child
rights during the war and in the post-war period in Ukraine” of the Council
of Europe.
It is important to preserve national interests of Ukraine in implementing
international norms and standards. It is possible if the originality of the
means of state protection and protection of rights and freedoms of the
child in Ukraine, including from sexual exploitation and sexual violence,
is preserved; formation of modern, eective measures and new methods
of preventing and countering sexual violence against a child, reecting
economic, political, ideological, religious, cultural and educational features
and identity of Ukraine.
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Esta revista fue editada en formato digital y publicada
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Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 79
