📄 Įstatymo tekstas
ON THE REPORT ON THE IMPLEMENTATION OF THE OPTIONAL PROTOCOL TO THE
UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD ON TH
Oficialus vertimas
2007 0710
government of the Republic of Lithuania
RESOLUTION No 208
of 7 February 2007
on the report oN the implementation of the optional protocol to the united nations convention on the rights of the child on the sale of children, child prostitution and child pornography
Vilnius
The Government of the Republic of Lithuania h a s r e s o l v e d:
To approve the Report on the Implementation of the Optional Protocol to the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (as appended).
Prime Minister Gediminas Kirkilas
Minister of Foreign Affairs Petras Vaitiekūnas
APPROVED by
Resolution No 208 of the Government of the Republic of Lithuania of 7 February 2007
REPORT ON THE IMPLEMENTATION OF THE OPTIONAL PROTOCOL TO THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD ON THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY
I. GENERAL PROVISIONS
1. On 10 June 2004, the Seimas of the Republic of Lithuania ratified the Optional Protocol of 2000 to the United Nations Convention on the Rights of the Child of 1989 on the sale of children, child prostitution and child pornography (Valstybės žinios (Official Gazette) No 108-4028, 2004) (hereinafter referred to as the Protocol). Its provisions came into force in the Republic of Lithuania on 5 September 2004.
2. The Constitution of the Republic of Lithuania and the Law of the Republic of Lithuania on Treaties (Valstybės žinios (Official Gazette) No 60-1948, 1999) provides that all international agreements ratified by the Seimas of the Republic of Lithuania shall be an integral part of the legal system of the State. If an international agreement which has been ratified and entered into force contains provisions different from those established by laws of the Republic of Lithuania, the provisions of the international agreement shall prevail.
3. The Initial Report on the implementation of the Protocol was prepared by a working group set up by Order No 1R-203 of 1 July 2006 of the Minister of Justice, comprised of representatives from the Ministry of Justice, Ministry of Social Security and Labour, Ministry of Health, Ministry of Education and Science, Ministry of the Interior, Prosecutor’s Office, Office of the Ombudsman for the Protection of the Rights of the Child, and the State Child Rights Protection and Adoption Service under the Ministry of Social Security and Labour. The Ministry of Foreign Affairs has also contributed to the preparation of this Report by supplying the required information. The draft report was submitted to non-governmental organisations: Lithuanian National Committee for UNICEF, Lithuania’s child protection organization Save the Children Lithuania, Lithuanian Centre for Human Rights, and the Human Rights Monitoring Institute, for information. Lithuanian Centre for Human Rights issued its comments on the draft report. The draft report was modified to incorporate those comments, before being submitted to governmental institutions for consideration. The Report was approved by a resolution of the Government of the Republic of Lithuania.
4. The Report was prepared in accordance with the guidelines for initial reporting under the Protocol, issued by the United Nations Committee on the Rights of the Child (CRC/OP/SA/1).
5. Seeking to ensure a better coordination of the child protection policy, the Seimas of the Republic of Lithuania passed, on 24 September 2002, a Law Amending Articles 59 and 61 of and Supplementing the Law of the Republic of Lithuania on Fundamentals of Protection of the Rights of the Child (Valstybės žinios (Official Gazette) No 95-4090, 2002), which stipulates that the Seimas of the Republic of Lithuania, the Government of the Republic of Lithuania, ministries, the Prosecutor’s Office, other public authorities shall, within their competence, develop and implement measures in the field of respect for and protection of the rights of the child. The Law also stipulates that the Government of the Republic of Lithuania shall designate one ministry to be responsible in the field of protection of the rights of the child. Pursuant to this Law, the Ministry of Social Security and Labour was designated, by Resolution No 194 of the Government of the Republic of Lithuania of 6 February 2003 on the Designation of the Ministry of Social Security and Labour to be Responsible in the Field of Protection of the Rights of the Child and on the Definition of Competence of Other Ministries (Valstybės žinios (Official Gazette) No 15-611, 2003), to be responsible in this field; competence of other ministries was defined. New functions related to the implementation of protection of the rights of the child were delegated to the Ministry of Education and Science, Ministry of the Interior, Ministry of Justice, and the Ministry of Health. A new department, Family, Children and Youth Department, was established within the Ministry of Social Security and Labour on 1 October 2002, with two divisions: Family Support Division, and Children and Youth Division. The latter is responsible for coordinating the implementation of child and youth protection policies.
With a view to separating the formation and implementation of the child protection policy, the Government of the Republic of Lithuania issued Resolution No 1114 of 20 October 2005 on the Approval of Regulations of the State Child Rights Protection and Adoption Service under the Ministry of Social Security and Labour (Valstybės žinios (Official Gazette) No 126-4501, 2005), whereby new functions were delegated to the Adoption Service under the Ministry of Social Security and Labour and its name changed to the State Child Rights Protection and Adoption Service under the Ministry of Social Security and Labour. This Service is now responsible not only for organising child adoption in the Republic of Lithuania, but also for ensuring the implementation of child protection measures, implementing the system of representation of child rights and legitimate interests in courts, and organising advanced training for staff of municipal child protection services and training for guardians (foster parents) and adoptive parents.
6. The institution of the Ombudsman for the Protection of the Rights of the Child is a public authority responsible for monitoring and controlling whether the rights of the child are respected. The main task of this institution is to monitor the implementation in the Republic of Lithuania of the provisions of international and national legal acts on the protection of the rights and legitimate interests of the child. Article 12 of the Law of the Republic of Lithuania on the Ombudsman for the Protection of the Rights of the Child (Valstybės žinios (Official Gazette) No 50-1432, 2000) lays down duties of the Ombudsman for the Protection of the Rights of the Child. The Ombudsman:
6.1. examines complaints filed by natural or legal persons about acts or omissions by state or municipal institutions or agencies or their officials, non-public institutions and other natural or legal persons, also enterprises without legal personality, which infringe or might infringe rights or legitimate interests of the child, and takes one of the decisions provided for in Article 25 of the Law;
6.2. monitors the implementation in Lithuania of the provisions of the Constitution of the Republic of Lithuania, conventions ratified by the Seimas of the Republic of Lithuania, and laws and other legal acts of the Republic of Lithuania on the protection of rights and legitimate interests of the child;
6.3. monitors and controls activities of institutions acting in the field of protection of rights and legitimate interests of the child, that prejudice or might prejudice the rights and legitimate interests of the child;
6.4. makes proposals to the Seimas of the Republic of Lithuania and the Government of the Republic of Lithuania for measures to be taken to improve the protection of rights and legitimate interests of the child granted by laws and other legal acts of the Republic of Lithuania.
7. This present Report does not repeat the information provided in the Report on the Implementation of the United Nations Convention on the Rights of the Child approved by Resolution No 142 of the Government of the Republic of Lithuania of 9 February 2004 (Valstybės žinios (Official Gazette) No 24-739, 2004). As part of implementing the Protocol, the Convention on the Rights of the Child is being implemented further and efforts are being made to grant additional guarantees for the protection of the rights of the child, and at the same time not to affect the progress made so far in implementing the Convention. Thus, this Report is supplementary to the 2004 Report on the Implementation of the Convention on the Rights of the Child and information provided herein should be read in conjunction with information in the said report. For instance, the implementation of the Protocol with respect to protection against discrimination and the extent of such protection should be assessed with reference to information given in items 48 to 66 of the Report on the Implementation of the Convention on the Rights o the Child; child adoption procedures in the Republic of Lithuania, items 254 to 268; prevention of sexual violence and protection of the rights of children who have suffered from sexual violence, items 272 to 294; position of minors in criminal proceedings and compensation for damage resulting from criminal offences, items 526 to 536; fight against sexual exploitation and abuse, items 613 to 617, etc.
II. ANALYSIS OF THE PROBLEM OF SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY IN LITHUANIA
8. The problem of commercial sexual exploitation and sale of children and child prostitution and pornography is painful in the Republic of Lithuania because of economic, social and geographical location of the State (transit country); however, owing to the latent nature of this phenomenon, it is difficult to make an accurate assessment of the extent of threats posed by this problem and its actual prevalence in Lithuania.
9. Regulations of the State Child Rights Protection and Adoption Service approved by Resolution No 1114 of the Government of the Republic of Lithuania of 20 October 2005 have expanded the functions of the Service with a new task, namely: to collect annually from municipal child protection services and state institutions and agencies statistical information about children, to systemise and analyse this information and to deliver it to the Ministry of Social Security and Labour and other state and municipal institutions.
10. In the beginning of 2006, the State Child Rights Protection and Adoption Service collected from municipal child protection services statistical data about instances of violence committed against children in 2005, including sexual abuse, according to the list of statistical indicators about children as approved by Resolution No 695 of the Government of the Republic of Lithuania of 8 June 2004 (Valstybės žinios (Official Gazette) No 92-3364, 2004).
11. Below is some general information about violence against children (incl. sexual abuse) in the Republic of Lithuania in 2005.
12. By the data of municipal child protection services, 2311 children suffered from violence in 2005. This figure has not changed much from the respective figure of 2004, when 2359 instances of violence against children were recorded. Prevalence of abuse as percentage of population shows that 0.27 % of all children living in Lithuania as of 1 January 2005 suffered violence in 2005. Highest prevalence of violence against children is recorded in the counties of Vilnius (0.54 %) and Utena (0.32 %).
The Table below gives comparative data for 2005 and 2004 by county. As can be seen from this data, the figure for Vilnius county has increased. In Vilnius town alone, there were 72 victims of violence more in 2005 than in 2004.
Prevalence of violence against children, 2004-2005
County
No of children, total
2005
2004
instances of violence,
total
percentage
instances of violence,
total
percentage
Vilnius
185717
1004
0.54
855
0.46
Kaunas
160330
341
0.21
409
0.25
Klaipėda
93748
159
0.16
364
0.38
Šiauliai
92480
227
0.24
270
0.29
Panevėžys
72574
145
0.19
144
0.19
Alytus
45715
83
0.18
85
0.18
Utena
42471
136
0.32
87
0.2
Marijampolė
49441
86
0.17
82
0.17
Tauragė
36201
75
0.2
13
0.03
Telšiai
49273
55
0.11
50
0.11
Total
827950
2311
0.27
2359
0.28
Data from the State Child Rights Protection and Adoption Service.
13. By the data of municipal child protection services, most instances of violence (63.34 %) were physical violence.
Data from the State Child Rights Protection and Adoption Service.
There are several reasons for this. Firstly, physical violence is most detectable. Secondly, physical violators are much more easy to establish and punish than sexual or psychological ones.
14. Like in the previous year, boys suffer from violence more frequently than girls, but sexual violence is more often targeted at girls.
Data from the State Child Rights Protection and Adoption Service.
15. Urban children are affected by violence almost twice as much as rural children. But if we looked at the prevalence of violence as percentage of population rather than at the total instances of violence, we would see that violence in urban and rural areas is almost of the same level. Moreover, note should also be taken of different degree of activity in urban and rural areas. By the data of the survey conducted by the Ministry of Social Security and Labour, rural people are most indifferent to violence against children committed by their neighbours. Moreover, many of them consider that assistance to a battered or otherwise maltreated child is a responsibility of professionals; however, professionals are more accessible to urban people. Therefore, a great number of instances of violence in rural areas are never reported at all.
Prevalence of violence
Prevalence of abuse as percentage
No of children, total
Instances of violence, total
Percentage
Quantitative incidence of violence
No of children, total
Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus
313379
971
0,3
Urban
1397
Regions
514571
1340
0,26
Rural
885
Data from the State Child Rights Protection and Adoption Service.
16. Most victims of violence are children aged 10-14 and 15-17. Adolescence is one of the most complicated stages in the development of a child. In the effort to establish his/her identity, an adolescent often engages other persons in his/her actions. In the transition from his/her union with the family to the stronger ties with his/her peers, an adolescent gains more independency. Having escaped from parental influence, an adolescent is increasingly willing to take over his/her peers’ values. It has long been known that the more intensive peer interaction, the more probable asocial behaviour. Certainly, misbehaviour is not always related with belonging to a group of contemporaries. Often, certain behavioural patterns are formed in the family. A child who suffers from aggression, underestimation and criticism in the family is likely to commit acts of violence against others, seeking to gain more power. It is because of conflicts among contemporaries that most victims of violence are children aged 10-17.
Data from the State Child Rights Protection and Adoption Service.
17. Sexual, physical and psychological violence, all are mostly targeted at children aged 10-14. It has been established that violators most often target children who are weaker than they themselves are. A child of 10-14 years is on a sort of a crossroad of different stages of age, where he/she is quite self-dependent and is therefore subject to looser parental protection but is not so powerful and self-confident as a child of 15-17 years.
Data from the State Child Rights Protection and Adoption Service.
18. By the data of municipal child protection services, sexual abuse is the least prevalent type of violence against children; however, as much as 20.7 % (29) victims of sexual abuse were abused by other minors. 22 of them were sexually abused by strangers, and 7 by minors close to them. Sexual abuse of children refers not only to sexual acts committed to satisfy another person’s sexual desire but also acts wherefrom another person (usually, an adult) derives material benefit (e. g. child pornography and prostitution). Although more girls than boys suffered from sexual violence in 2005 (104 instances of 140), boys more often become victims of sexual violence by minors (21 boys and only 8 girls). In 2005, 17 boys and 5 girls suffered from sexual violence by under-age strangers, and 4 boys and 3 girls from violence by minors close to them.
19. Most often, under-age strangers sexually abuse children aged 7-9 (6) and 10-14 (10).
Data from the State Child Rights Protection and Adoption Service.
20. Sexual violence by close minors is most often targeted at children aged 4-6 (3).
Data from the State Child Rights Protection and Adoption Service.
By the data of municipal child protection services, in 2005, 111 children (79.3 % of victims of sexual abuse) were sexually abused by adults; of this number, 30 children were abused by people close to them. Most victims of sexual abuse by adults were girls (95).
21. Most victims of sexual abuse by adult strangers are children aged 15-17 (36) and 10-14 (30).
Data from the State Child Rights Protection and Adoption Service.
22. Sexual abuse by adults close to the victims was also mostly targeted at older children in 2005. The Chart below shows the number of such victims by age.
Data from the State Child Rights Protection and Adoption Service.
23. In the effort to protect a child against violence by his/her parents or other legal representatives of the child or against other risks posed by the abuse of parental powers (including risks to the child’s health or life), in 2005, 233 children were taken from their parents or other legal representatives, 243 reports on administrative offences were drawn up against violators, and 1458 criminal actions were brought, 252 of which were initiated by municipal child protection and adoption services.
24. By the data of the Information Technologies and Communications Department under the Ministry of the Interior, criminal acts covered by Article 147, Trafficking in Human Beings, of the Criminal Code of the Republic of Lithuania (hereinafter referred to as the CC) (Valstybės žinios (Official Gazette) No 89-2741, 2000) were committed against 1 child in 2004 and 2 children in 2005. Criminal acts covered by Article 308 of the CC, Engaging Another Person into Prostitution, were committed against 2 children in 2004 and 1 child in 2005. No crimes covered by Article 157 of the CC, Procurement or Sale of a Child, were recorded in 2004-2005 (before 30 June 2005, Article 157 of the CC imposed liability for a procurement or sale of a young child only). 2 crimes under Article 162 of the CC, Child Exploitation for Pornographic Purposes, were recorded in 2005, and none in 2005. 7 crimes under Article 307 of the CC (Deriving Profit from a Minor’s Prostitution), were recorded in 2005, and 4 in 2004; 6 crimes under Article 309.2 of the CC (Dealing in Items of Pornographic Content, with an Image of a Child or a Person Presented as a Child) were recorded in 2005, and 4 in 2004.
25. Apart from statistical information, situation in the Republic of Lithuania as regards sale of children, child prostitution and child pornography can also be judged from complaints received and investigations initiated by the Ombudsman for the Protection of the Rights of the Child. Major problems are described below.
26. The public knows very little about child prostitution and pornography, its causes and possible solutions. There is a lack of qualified and effective network of assistance that would cover prevention, intervention and postvention measures. Institutional staff does not have sufficient knowledge about this problem, about ways of involving children into this activity, or means and instruments of the fight against this problem. They lack skills in finding most appropriate ways of informing children about the harm and consequences of trafficking in human beings, prostitution, pornography and other commercial exploitation.
27. Children under 18 years, in particular adolescent girls living in special boarding schools, special child education and care homes, governmental and non-governmental child care homes, or social risk families, very often become victims of trafficking in human beings, prostitution and pornography. This is because children of such homes and families may be easily bought with exceptional attention, care and attendance, promises, presents and other things which they lack and miss.
28. Runaway children who are also called street children, i.e. children who are prone to commit offences or crimes, children whose behaviour is different than commonly accepted behavioural patterns, or children exploited or abused in the family or other environment surrounding them in which they are supposed to feel safe, also quite easily and often voluntarily become victims of trafficking in human being, prostitution and pornography.
29. Children’s incapability to understand the harm of prostitution, pornography and other kinds of exploitation is evidenced by the fact that they themselves often try to make contacts with persons engaged in the business of prostitution, pornography and trafficking in human beings, and offer their services. Such children have the aim to earn money to become independent and self-supporting. They see prostitution and pornography as a source of fast, easy and decent earning.
30. Sometimes children are engaged in the network of trafficking in human beings and commercial sexual exploitation through their parents’ (guardians’) credulity, when parents are lured by the opportunity of a good earning, wealthy life, seeing the world (for instance, employed as a model, etc.).
31. Another difficult task is to ensure security of children who visit Internet cafés, go to discos and other public places or who are Internet users: spend time in chat or ‘lonely heart’ websites, send short messages, etc. Over 1 million people are Internet users in the Republic of Lithuania. Over 60 % of people using the Internet are children and adolescents, of which 40 % are between 10 and 14 years of age; unfortunately, Internet users become increasingly young. Children are inquisitive and active, but their immaturity makes them especially vulnerable. Information technologies are not only a risk of addiction to a computer, computer games or the Internet and a risk to a child’s health and have a negative impact on learning performance and educative results or on behaviour but are also a source of negative information promoting bad habits and posing a danger of entering a sex services market (child pornography, prostitution, paedophilia, etc.) and of entrenchment and expansion of commercial sexual exploitation of children and multiplication of victims of commercial sexual exploitation.
III. IMPLEMENTATION OF INDIVIDUAL PROVISIONS OF THE PROTOCOL
Implementation of Articles 1 and 2
32. Article 2 of the Law of the Republic of Lithuania on the Fundamentals of Protection of the Rights of the Child (Valstybės žinios (Official Gazette) No 33-807, 1996) provides that a child is a human being below the age of 18 years, unless otherwise established by laws. As the CC does not establish any exceptions to this provision, the terms of criminal law child and minor are equivalent and mean a person below 18 years of age. The term young child means a person below 14 years of age. Case-law on this issue is coherent and unambiguous.
33. The CC prohibits sale of children, child prostitution and child pornography. Article 157 of the CC (Procurement or Sale of a Child) imposes criminal liability on a person who has offered to buy or otherwise procure a child or who has sold, procured or otherwise transferred to another person or procured a child or who has recruited, transported or held captive a child knowing that the child will be engaged into prostitution or that proceeds will be derived from the child’s prostitution or that the child will be exploited for pornography or forced labour purposes, or having an intention to do so. Article 162 of the CC (Child Exploitation for Pornographic Purposes) imposes criminal liability on a person who has engaged a child in a pornographic event or exploited a child for the production of pornographic items or who has derived proceeds from such activity of a child. Article 307 of the CC (Deriving Profit from Another Person’s Prostitution) imposes criminal liability on a person who has derived proceeds from a minor’s prostitution or who has organised or directed a minor’s prostitution or who has transported a minor with the minor’s consent to or from the Republic of Lithuania for prostitution. Article 308 of the CC (Engaging Another Person into Prostitution) imposes criminal liability on a person who has engaged, in any manner, a minor into prostitution. Article 309 of the CC (Dealing in Items of Pornographic Content) imposes criminal liability on a person who has produced, procured, possessed, demonstrated, advertised or distributed items of pornographic content, with an image of a child or a person presented as a child.
Implementation of Article 3
34. According to Article 157 of the CC (Procurement or Sale of a Child), anyone who has offered to buy or otherwise procure a child or who has sold, procured or otherwise transferred to another person or procured a child or who has recruited, transported or held captive a child knowing that the child will be engaged into prostitution or that proceeds will be derived from the child’s prostitution or that the child will be exploited for pornography or forced labour purposes, or having an intention to do so, shall be punished by imprisonment for a term of three to twelve years. Anyone who has committed such acts against two or more children or against a minor or as a member of an organised group or with an intention to obtain a bodily part, tissue or cells of the victim shall be punished by imprisonment for a term of five to fifteen years. This Article principally covers the acts referred to in points (a) and (b) of Article 3, paragraph 1 of the Protocol, as it prohibits any kind of offering, delivering or accepting a child for the purpose of exploitation for prostitution, pornography or forced labour, whatever the means or instruments are used for such delivery. Where all attributes are established, both the actual buyer and the actual seller of the child as well as the intermediary, if any, should be punished as if they were offenders (co-offenders) or accomplices. Moreover, even in the failure to prove the entire mechanism of procurement or sale of a child, the perpetrator may be prosecuted under Article 146 of the CC (Illegal Deprivation of Liberty), Article 1471 (Exploitation for the Purpose of Forced Labour), Article 148 (Restraint of the Freedom of Action of a Person), Article 156 (Kidnapping), Article 162 (Child Exploitation for Pornographic Purposes), Article 227 (Bribing), Article 307 (Deriving Profit from Another Person’s Prostitution), Article 308 (Engaging Another Person into Prostitution), etc.
35. Acts referred to in point (c) of Article 3, paragraph 1 of the Protocol are prohibited in paragraphs 2 and 3 of Article 309 of the CC (Dealing in Items of Pornographic Content). Under paragraph 2 of the said Article, anyone who has produced, procured, possessed, demonstrated, advertised or distributed items of pornographic content, with an image of a child or a person presented as a child, shall be punished by imprisonment for up to two years. Under paragraph 3 of the said Article, anyone who has produced or procured, with the aim of distributing, or distributed items of pornographic content, with an image of a young child or a person presented as a young child, shall be punished by imprisonment for up to five years.
36. The criminal law does not define the terms prostitution and pornography, leaving the task of defining them to the theory and practice of the criminal law. Given that the Republic of Lithuania follows a monistic approach to the application of international legal instruments, a court must interpret these terms in accordance with international agreements, including the Protocol. Reference can be made to the Recommendations to members of the Ethics Commission of Journalists and Publishers, On Mass Media Classification Criteria, issued by Decision No SPR-14 of 4 August 2005 of the Inspector of Journalist Ethics (Valstybės žinios (Official Gazette) No 96-3624, 2005), which propose to deem pornographic those videos, publications or programs which:
36.1. explicitly feature a sexual intercourse or any other act of erotic practice (masturbation, oral sex, etc.) with a close-up view of sex organs, or where such images are dominant in the publication, video or program;
36.2. feature a sexual intercourse or erotic practices with children;
36.3. feature sexual perversion (masochism, sadomasochism, necrophilia, zoophilia, etc.);
36.4. show, in a photo or video picture, a close-up view of sex organs;
36.5. narrate, in a audio recording or a written text, sexual intercourse referred to in items 1-4 above, using obscene language and reproducing sounds of a sexual intercourse.
37. Article 22 of the CC (Attempt to Commit a Criminal Act) imposes criminal liability for any intentional act covered in the Special Part of the CC, which is a start of a criminal offence or misdemeanour, if the act has not been completed for reasons outside the perpetrator’s will. Article 24 of the CC (Accompliceship and Types of Accomplices) imposes criminal liability on accomplices in any intentional criminal act such as perpetrators, organisers, aiders and abetters. These persons are liable for attempts and accompliceship under the above-mentioned articles of the General Part of the CC and a respective article (or paragraph or point) of the Special Part of the CC. However, a court may decide to impose a softer punishment, where extenuating circumstances exist, where the material damage, if any, has been compensated or rectified, and where the act failed on the stage of attempt to commit it or where the perpetrator’s role as an accomplice in the offence was secondary.
38. Decision on a punishment for a sale of children, child prostitution and child pornography takes into account, inter alia, the following mitigating and aggravating circumstances (Article 29 of the CC, Mitigating Circumstances, and Article 60 of the CC, Aggravating Circumstances):
38.1. mitigating circumstances:
38.1.1. the perpetrator confesses the criminal act and sincerely regrets it or assists in investigating the act or establishing other perpetrators;
38.1.2. the act was committed under mental or physical coercion, if only this coercion does not completely relieve him of criminal liability;
38.1.3. the perpetrator is a person of diminished capacity;
38.1.4. the act was committed by a person who was in a state of involuntary intoxication;
38.1.5. the person’s attempt at renunciation of the criminal act has been unsuccessful.
A court has a right to deem other circumstances as mitigating.
38.2. aggravating circumstances:
38.2.1. the act was committed by a group of accomplices;
38.2.2. the act was committed by an organised group;
38.2.3. the act was committed as a result of disorderly conduct or for personal gain or out of other motives;
38.2.4. the act was committed by torturing the victim or subjecting the victim to degrading treatment;
38.2.5. the act was committed against a young child;
38.2.6. the act was committed by a person in a state of alcoholic intoxication or under the influence of narcotic, psychotropic or toxic substances;
38.2.7. the committed act caused grave consequences.
39. Limitation periods for judgements of conviction are laid down in Article 95 of the CC (Limitation Period of a Judgement of Conviction). Under the said Article, a judgement of conviction may not be issued against a person after a lapse of fifteen years from the date of sale or procurement of a child. A judgement of conviction may not be issued against a person accused of production, distribution, dissemination, import, export, offering, sale or possession of child pornography, after a lapse of five years from the date of the offence. Period of limitation for a person who has produced or procured with the aim of distributing, or disseminated large quantities of items of pornographic content, with an image of a young child, is eight years from the date of the offence. If the offender hides from a pre-trial investigation or trial, the period of limitation is suspended. The period of limitation is resumed on the date of detention of the offender or his volunteer appearance and confession. However, if fifteen years have passed from the offence, the offender may not be convicted. If the offender commits a new offence within periods laid down in the said Article, the period of limitation is interrupted. In this case, the period of limitation for the first offence starts anew from the date of the new offence or misdemeanour.
40. For criminal acts covered by Article 20 of the CC (Criminal Liability of a Legal Person), prosecution may also be directed against a legal person. As defined in Article 2.33 of the Civil Code of the Republic of Lithuania (hereinafter referred to as the CvC) (Valstybės žinios (Official Gazette) No 74-2262, 2000), a legal person is an enterprise or an organisation which has its business name, which may in its name gain and enjoy rights and assume obligations as well as act as a defendant and as a plaintiff in courts. In the CC, the concept of a legal person is used in the meaning defined in the CvC; however, Article 20.5 of the CC clarifies that a state, a municipality, a state or municipal institution or agency, and an international public organisation shall not be liable under the CC. Pursuant to Article 20 of the CC, a legal person is liable for criminal acts committed by a natural person only if the criminal act was committed for the benefit or interests of the legal person by a natural person acting individually or in the name of the legal person, where this natural person holding executive office in the legal person had the power to:
40.1. represent the legal person, or
40.2. take decisions on behalf of the legal person, or
40.3. manage the legal person’s activities.
41. A legal person may also be liable for criminal acts committed for the benefit of the legal person by an employee or authorised agent of the legal person owing to insufficient supervision or control over that natural person. It should be noted that criminal liability of a legal person does not eliminate criminal liability of a natural person who has committed, organised, abetted or assisted in the commission of the criminal act. Article 43 of the CC (Types of Punishment for Legal Persons) imposes the following types of punishment for legal persons: a fine, restriction of activities of the legal person, or a liquidation of the legal person.
42. Article 3, paragraph 5 of the Protocol provides that States Parties shall take all appropriate legal and administrative measures to ensure that all persons involved in the adoption of a child act in conformity with applicable international legal instruments. Pursuant to Article 14 of the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (Valstybės žinios (Official Gazette) No 101-2550, 1997), families and persons who wish to adopt a child in another country shall apply to central authorities or accredited bodies of their own country. To ensure a smooth and transparent implementation of intercountry adoption procedures, the Minister of Social Security and Labour approved, by Order No A1-162 of 3 June 2005 (Valstybės žinios (Official Gazette) No 73-2668), the Procedure for Authorising Foreign Authorities to Act in the Context of Intercountry Adoption in the Republic of Lithuania. According to this Procedure, only those foreign authorities may act in the Republic of Lithuania which have been granted an authorisation to act.
42.1. The said Procedure lays down:
42.1.1. the conditions and procedure for the granting, expiry, extension, suspension and withdrawal of authorisations;
42.1.2. functions, rights and obligations of authorised foreign authorities.
By Order of the Minister of Social Security and Labour, a Commission was formed to issue recommendations for the granting or refusal of authorisations to foreign authorities to act in the Republic of Lithuania. The right to take a decision to grant or refuse an authorisation to a foreign authority to act in the Republic of Lithuania in the context of intercountry adoption is vested with the Director of the State Child Protection and Adoption Service, who shall, in doing so, take account of recommendations of the Commission.
42.2. Foreign authorities authorised to act in the Republic of Lithuania must:
42.2.1. comply with laws and other legal acts of the Republic of Lithuania and international legal instruments;
42.2.2. refrain from seeking to obtain illegal financial benefit or unreasonably large consideration for the activities performed;
42.2.3. annually report their activities carried out in the proceeding year, to the State Child Rights Protection and Adoption Service.
Currently, 15 foreign authorities have been accredited to act in the Republic of Lithuania: 6 from the USA, 4 from Italy, and 1 from Sweden, Germany, Spain, France and New Zealand, each.
The procedure for accreditation of foreign authorities ensures that only competent persons with a proper educational background, experience and ethic values relevant in the field of intercountry adoption act in the Republic of Lithuania, this being one of the measures to control activities of such authorities and improve intercountry adoption procedure.
Authorised foreign authorities provide the State Child Rights Protection and Adoption Service with feedback information about children adopted (twice a year in the first two years after adoption, once a year in the next two years, and later on request of the Adoption Service). The feedback information consists of reports in a pre-defined form about integration of the adopted child in the family, about his/her living conditions, development and health, and video material. To ensure a better quality of the intercountry adoption procedure and a better coordination and control of activities carried out by the relevant authorities, paragraph 2.2 of the Procedure for Authorising Foreign Authorities to Act in the Context of Intercountry Adoption in the Republic of Lithuania approved by Order No A1-162 of 3 June 2005 of the Minister of Social Security and Labour specifies that no applications for authorisations to act in the context of intercountry adoption in the Republic of Lithuania shall be accepted from foreign authorities from 1 August 2006. The said Order also prescribes that a foreign authority authorised to act in the context of intercountry adoption, or a central adoption authority of the receiving state, may file applications of no more than two families (persons) wishing to adopt a child (children) under 6 years of age in one calendar year, except if such applications concern a child (children) with special needs. This approach is aimed at improving the protection of the rights of children above 6 years of age and children with special needs, by securing them more chances to be adopted.
As part of implementing Article 3.217 of the CvC, which provides that certified social workers of the state institution for adoption shall verify the preparedness for adoption, the Minister of Social Security and Labour approved, by Order No A1-154 of 18 June 2004 (Valstybės žinios (Official Gazette) No 98-3653, 2004), the Procedure for Verifying Preparedness of Adopters to Adopt a Child, which specifies what data about persons wishing to adopt a child shall be collected by a certified social worker of the adoption service and sets the time-limits for the initial evaluation of prospective adopters, also specifies who and how should organise training for adopters which is mandatory for all prospective adopters, except those who wish to adopt a child of the spouse. This Procedure regulates verification of preparedness not only of nationals of the Republic of Lithuania, but also of aliens permanently residing in the Republic of Lithuania.
Implementation of Article 4
43. Procurement or sale of a child covered in Article 157 of the CC are attributed, under Article 7 of the CC (Criminal Liability for Offences Specified in International Agreements), to the category of offences that fall within the universal jurisdiction, i.e. offenders are liable under the criminal law of the Republic of Lithuania regardless of their citizenship, their place of residence, the place of commission of the crime, or the punishability of the committed act under the laws of the place where the crime was committed.
44. Many other criminal acts, including those covered by Article 162 of the CC (Child Exploitation for Pornographic Purposes), Article 307 (Deriving Profit from Another Person’s Prostitution), Article 308 (Engaging Another Person into Prostitution), Article 309 (Dealing in Items of Pornographic Content), are subject to territorial (Article 4) or active nationality (Article 5) principles. Article 4 of the CC (Applicability of Criminal Law in Respect of Persons Who Commit Criminal Acts within the Territory of the State of Lithuania or on Board a Ship or Aircraft Flying the Flag or Carrying Distinctive Symbols of the State of Lithuania) prescribes that persons who commit criminal acts in the territory of the State of Lithuania or on board a ship or aircraft flying the flag or carrying distinctive symbols of the State of Lithuania shall be liable under this Code. The place of commission of a criminal act is the place in which the person acted or could have acted or had to act, or the place in which the consequences covered in the criminal law occurred. The place of commission of a criminal act by an accomplice is the place where the criminal act was committed or, if the accomplice operated elsewhere, the place where he carried out his activity. A single criminal act committed both within the territory of the State of Lithuania and abroad is considered as having been committed within the territory of the Republic of Lithuania if it was commenced or completed, or forestalled in the territory of the Republic of Lithuania.
45. Article 5 of the CC (Criminal Liability of Citizens of the Republic of Lithuania and Other Permanent Residents of Lithuania for Offences Committed Abroad) provides that citizens of the Republic of Lithuania and other permanent residents of Lithuania shall be held liable for offences committed abroad under criminal laws of the Republic of Lithuania provided that the committed act is recognised as an offence and is punishable under the criminal law of the place of commission of the crime and the CC. If the person who has committed an offence abroad is prosecuted in the Republic of Lithuania and the offence carries different punishments in the two countries, the offender shall be liable for punishment under the laws of the Republic of Lithuania without exceeding the maximum punishment applicable according to the criminal law of the country of commission of the offence. Thus, even if the Republic of Lithuania refuses, for whatever reasons, extradition of the person who has committed an offence in the Republic of Lithuania to a foreign state, this person will nevertheless have to be prosecuted under the CC of the Republic of Lithuania.
46. It should be noted that Lithuania applies the legality principle which means that a pre-trial investigation officer or prosecutor must start a pre-trial investigation for every criminal act (with certain exceptions regarding minor acts).
Implementation of Article 5
47. Since the entry of the Protocol into force, extradition for offences covered by the Protocol was exercised only once.
On 26 January 2005, the Prosecutor General’s Office received, through Interpol channels, a request of the competent authorities of Costa Rica to detain M.B.L., a national of Costa Rica, who was prosecuted by the Prosecutor’s Office of the city of San José, Costa Rica, for participating in an organised group engaged in cross-border trafficking in adopted children. International search for this person was launched on the basis of an international arrest warrant of 1 October 2004 issued by the Criminal Court of the First Judicial Circuit of San José.
M.B.L was detained in Vilnius on 24 January 2005 and taken into police custody. On 26 January 2006, a judge of the First District Court of Vilnius imposed him a punishment of detention of one month. On 23 February 2005, the arrest was extended for one more month.
The detention of M.B.L. was reported to the Embassy of the Republic of Costa Rica in Oslo (Norway), from which the Prosecutor General’s Office received, through diplomatic channels on 2 March 2005, documents for the extradition of M.B.L.
On 15 March 2005, a prosecutor of the International Relations and Legal Assistance Division of the Prosecutor General’s Office approached Vilnius Regional Court with a request to extradite M.B.L to the Republic of Costa Rica for prosecution.
Having examined the request, Vilnius Regional Court ruled, on 21 March 2005, that M.B.L. is to be extradited to the Republic of Costa Rica, and extended his detention for another month.
The ruling was communicated to the Embassy of the Republic of Costa Rica in Oslo (Norway); the time and conditions for taking over the extraditable person were negotiated and agreed.
On 13 April 2005, the Costa Rican was passed over to authorised officers of the Republic of Costa Rica at Vilnius Airport.
By the data available to the Prosecutor General’s Office, the organised group would buy children from poor families in Costa Rica and later sell them to wealthy people in Costa Rica or other countries who wished to adopt children. Children were sold by following the official adoption procedures.
Implementation of Article 6
48. There were no instances of international legal cooperation in relation to criminal activities covered by the Protocol (except for the case of extradition described above).
Implementation of Article 7
49. Under Article 72 of the CC (Seizure of Property), property which was the instrument or means to commit the crime or which was acquired as a direct result of the criminal act shall be seized.
49.1. The court must seize:
49.1.1. money or other valuable items given to the offender or his accomplice for the purpose of committing the criminal act;
49.1.2. money and other valuable items used to commit the criminal act;
49.1.3. money and other valuable items derived from the criminal act.
49.2. Property transferred to other natural or legal persons shall be seized irrespective of whether these person are prosecuted or not, if:
49.2.1. this property was given to them for the purpose of committing a criminal act;
49.2.2. when accepting the property, they knew or should or might have known that this property, money or new valuable items purchased with this money have been derived from criminal activity.
Property transferred to other natural or legal persons may be seized irrespective of whether the transferor is prosecuted or not, if that person should or could have known that this property might be used for committing a serious or very serious offence. Where the property to be seized is hidden, used up, owned by third parties or otherwise impossible to be seized, the court shall recover from the offender, his accomplices or other persons mentioned above the amount of money equivalent to the value of the property to be seized. The court ruling seizure must specify the items to be seized or the monetary value of the property to be seized.
Seizure of property is a penal sanction enforceable against both natural and legal persons in addition to the punishment imposed or even if no punishment has been imposed.
50. Pursuant to Article 94 of the Code of Criminal Procedure of the Republic of Lithuania (hereinafter referred to as the CCP) (Valstybės žinios (Official Gazette) No 37-1341, 2002), the court may rule, on the basis and in the procedure laid down in a relevant international agreement of the Republic of Lithuania and at the request of a foreign authority, that any items and valuables derived from criminal activity may be passed over, after the sentence comes into effect, to the foreign authority to be returned to their legitimate owners, unless the owners are not known or legitimate interests of other persons might be violated. If trade in the relevant items is prohibited, such items shall not be passed over to a foreign authority. It should also be noted that Article 711 of the CCP provides that the Prosecutor General’s Office of the Republic of Lithuania shall, at the request of the state which has issued a European arrest warrant, guarantee the seizure of items and documents relevant for the investigation of the criminal act as well as proceeds derived from criminal activity by the person with respect to whom the European arrest warrant has been issued, and the transfer of such items, documents or property to that state. Where such items must be seized or returned to their legitimate owners in accordance with laws of the Republic of Lithuania, the Prosecutor General’s Office may transfer them on a temporary basis only, for as long as they are needed for criminal proceedings in the state which has issued the European arrest warrant.
51. The provision in paragraph (c), Article 7 of the Protocol is implemented by imposing a restriction of activity or liquidation of a legal person. It should be noted that certain laws also provide for administrative measures aimed at terminating the activities which are contrary to the law. For instance, Article 18 of the Law of the Republic of Lithuania on Police Activities (Valstybės žinios (Official Gazette) No 90-2777, 2000) gives a right to a police officer to temporarily restrict access to a particular territory or premises, to halt on-going works, or to restrict or suspend traffic, if there is a danger to the environment, public order, security of a person or the state. Article 52 of the Law of the Republic of Lithuania on the Provision of Information to the Public (Valstybės žinios (Official Gazette) No 82-3254, 2006) provides that a court may suspend or terminate activities of a producer and/or disseminator of public information, except for broadcasters and/or re-broadcasters, if the producer and/or disseminator of public information disseminates, propagates or advertises, inter alia, pornography as well as propagates and/or advertises sexual services and sexual perversions. If laws prescribe that certain activity is subject to a licence (e.g. transport services, sale of alcohol, etc.), the licensing institution may suspend or withdraw such licence for a violation of licence regulations.
Implementation of Article 8
52. The CCP provides for a number of measures aimed at protecting the rights and interests both of victims of criminal acts and children during the criminal procedure. In general, a victim and a victim’s representative have the right to give evidence; to file applications; to challenge; to acquaint oneself with the case in the pre-trial and trial stages; to be present during the trial; to appeal against actions of a pre-trial investigation officer, prosecutor, pre-trial investigation officer or court; to appeal against a court’s judgment or ruling; to give a closing speech (Article 28 of the CCP). Every person recognised as a victim has the right to demand that the offender be identified and punished justly, as well as claim for compensation for the damage done by the criminal act (Article 44 of the CCP). It should be noted that Article 45 of the CCP provides that the judge, prosecutor or pre-trial investigation officer must inform the parties of the proceedings of their rights and ensure that they can exercise such rights.
53. The CCP also has certain specific provisions concerning the status of child victims and/or witnesses in the proceedings. Article 186 of the CCP provides that a witness or a victim under 18 years of age may be questioned by a pre-trial investigation judge, at a request of the child’s representative, prosecutor or defence lawyer acting in the interests of the child. A witness or a victim under 18 years of age is normally questioned no more than once during the pre-trial investigation. The questioning may be video/audio-recorded. If the suspect or the suspect’s representative is present at the questioning of the witness or victim under 18 years of age, the pre-trial investigation judge must ensure that such witness or victim is not under undue pressure. Witnesses and victims under 18 years of age are called to the hearing only in exceptional situations. A representative of a witness or victim under 18 years of age has the right to be present at their questioning. At the request of the parties of the proceedings or on the initiative of the pre-trial investigation officer or prosecutor or pre-trial investigation judge, a staff-member of a state institution for the protection of the rights of the child or a psychologist may be invited to the questioning of a witness or victim under 18 years of age, to assist in the questioning taking account of his/her social and psychological maturity. It must also be noted that minors may be questioned in special child-questioning rooms (currently there are two child-questioning rooms). One of the measures laid down in the National Programme for 2005-2007 for the Prevention of Violence against Children and the Assistance to Children approved by Resolution No 491 of the Government of the Republic of Lithuania of 4 May 2005 (Valstybės žinios (Official Gazette) No 58-2021, 2005) is a further improvement of the mechanism of questioning of child witnesses and victims in the criminal procedure.
54. Article 280 of the CCP provides that a staff-member of a state institution for the protection of the rights of the child or a psychologist must be called to the questioning of a witness under 18 years of age during the hearing, in order to assist in the questioning taking account of his/her social and psychological maturity. Where necessary, parents or other legal representatives of the child witness may also be called to the questioning. The staff-member of a state institution for the protection of the rights of the child or the psychologist present at the questioning, also parents or other legal representatives of the child witness may, with the permission of the chairperson of the hearing, ask the witness questions. A witness under 16 years of age must leave the hearing room immediately after the questioning, unless the court deems it necessary for him/her to stay. If there is a risk that the questioning in the hearing may cause a mental trauma or have other grave consequences for a witness under 18 years of age, such witness shall not be called to the hearing; instead, his/her evidence given to the pre-trial investigation judge is read out.
55. Article 283 of the CCP provides that the victim shall be questioned in the hearing and his/her evidence shall be read out by complying with all rules applicable to the questioning of witnesses and to the reading of their evidence. A victim under 18 years of age must be questioned only in the presence of his/her representative. A victim of this age and his/her representative have the right, by a court order, to be present only in a part of the hearing. If there is a risk that the questioning in the hearing may cause a mental trauma or have other grave consequences for a victim under 18 years of age, such victim may be excluded from the questioning. In this case, evidence given by the victim to the pre-trial investigation judge must be read out loud.
56. Article 9 of the CCP allows in-camera hearing of cases, where the criminal act was committed by a person under 18 years of age, or for offences or misdemeanours against a freedom of sexual self-determination and privacy, also other cases, when efforts are made to prevent publication of information on a private life of the parties to the proceedings or where the witness or victim questioned has the right to anonymity.
57. Pursuant to Article 199 of the CCP, a victim or witness shall have the right to anonymity, where all of the following conditions are met:
57.1. there is a real danger to life, health, liberty or property of the victim or witness or their family members or their close relatives;
57.2. the victim’s or witness’s evidence plays a material role in the criminal proceedings; j
57.3. the victim or witness takes part in the proceedings for a serious or very serious offence.
58. The specifics of questioning of a witness to be kept anonymous are laid down in Article 282 of the CCP. Under this Article, the court shall instruct the prosecutor to organise the appearance of the anonymous witness in the court in such a manner that his/her identity is not disclosed. The anonymous witness shall be questioned in an in-camera hearing with artificial acoustic and visual barriers preventing identification of the witness by other participants of the hearing. If it is impossible to create acoustic or visual barriers in the hearing room, the anonymous witness shall be questioned in other than the hearing room, not in the presence of other participants of the hearing. Before such questioning, other participants of the hearing may deliver to the chairperson of the hearing written questions they want to ask the witness. Evidence given by the witness questioned in this manner shall be entered by the chairperson of the hearing or one of the judges in the record of the hearing. The chairperson of the hearing or one of the judges shall read this evidence out loud during the hearing. Any other, repeated or additional, questions which other participants of the hearing want to ask the witness after the chairperson of the hearing or one of the judges has read out loud the evidence given by the witness shall be asked and answered in the same manner. In individual cases, where the appearance of the anonymous witness in the court would endanger life, health or liberty of his/her own, his/her family members or close relatives, the witness may not necessarily be called to the hearing; instead, his/her evidence given to a pre-trial investigation judge in accordance with Article 203 of the CCP shall be read out loud in the hearing. Where the above-explained conditions exist, a witness may be questioned using remote video and audio communication equipment, by creating artificial acoustic and visual barriers.
59. As far as the protection of the rights of the victim during criminal proceedings is concerned, it should be said that pursuant to Article 44 of the …
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