Certain aspects of the position and rights of children as victims of criminal offenses

1.    Introductory remarks

The development of the protection of minors from abuse, neglect and exploitation, i.e. from all forms of violence that threaten and injure their physical, sexual and psychological integrity, is particularly encouraged and advocated by the movement for children’s rights, which is embodied in a whole series of international documents. Today, it is indisputable that the rights of the child, as a special part of human rights, have a universal character. However, by separating minors as special subjects of law, and formulating independent rights that protect their personal assets, the classic protective attitude towards these persons is overcome and enables their influence on their own position (Stevanović, 2015, p. 10). However, it should also be emphasized that the state and its organs, and above all the criminal justice system as such, are positioned as the ultimate guarantors of those rights and the protection of children, so that they assume the function of representing those rights in situations where they are threatened, that is, violated by the actions of parents or other persons and strongly react to such violations by sanctioning them.

With that, it can be stated that almost all modern legislation tends to introduce special rules when it comes to lega , and especially criminal-legal protection of minors. The ratio legis of this particularity in prescribing and incriminating is based on the social need for a stronger and more effective reaction when persons of the youngest age categories are injured or endangered. This is because minors are in many situations more vulnerable than adults. All this led to the emergence and development of the concept of “justice tailored to the child”, which is increasingly gaining momentum internationally, and especially in European legislation (Samardžić, 2018, p. 18 et seq.).

In the light of the above, this paper will point to the normative framework of regulation of the position and rights of the child in the Republic of Serbia. Finally, the paper tries to provide an overview of the (legal) position of children as victims of domestic and sexual violence, but also procedural and legal elements of the appearance of a child in criminal proceedings as an injured person.

2.    National nomative framework Regulations on children’s rights and children’s position as victims of certain criminal offenses

Proceeding from and respecting the assumed international legal obligations, the domestic constitution-maker and legislator, adopting or following the set international legal standards, strongly intervened in the field of children’s rights prescribing and regulating general issues of children’s rights, but also the position of children as victims of crime, and as victims of specific criminal acts. Thus, in addition to the general qualified incriminations contained in the Criminal Code of the RS, the legislator regulated the position of the child with special regulations of the criminal legislation, both substantive and procedural.

As the rights and position of the child in the national legislation are regulated by over 80 legal texts (Analysis, 2011, pp. 5-9), this chapter will refer only to the constitutional legal framework regulating the rights of the child, and will present the relevant criminal law regulation.

• 2.1 . Constitutional regulation of the rights and position of the child

  The Constitution of the Republic of Serbia, as the highest legal act, establishes the foundations of our legal system and guarantees basic human rights and freedoms in the most general way. By guaranteeing human rights, the state in fact guarantees a limit that it must not cross, if it rests on democracy, because even though democracy is not reduced to human rights, without them there is no democracy (Marković, 2013, p. 460). The second part of the Constitution is devoted to human rights, which is precisely called human and minority rights and freedoms. Within this part of the Constitution, human rights that fall within the domain of family law belong to the group of social rights, which are otherwise considered new rights (Marković, 2013, pp. 483-484).

• 2.2    Criminal-legal protection of the position of the child as a victim of certain criminal acts

  Guided by everything previously stated, and starting from the standards and rules contained in international legal documents, as well as the provisions of the Constitution, the domestic legislator implements the concretization of the proclaimed protection of children, first of all, through criminal legislation, by prescribing more than 30 actions in the Criminal Code of the RS in which the property of the injured party as a minor is an important characteristic of the nature of the criminal offense (compare with Petković & Pavlović, 2016, p. 188), and it is mostly about crimes against life and limb (such as aggravated murder from Article 114 of the CC, murder of a child during childbirth from Article 116 of the CC, etc.), against sexual freedom (such as rape from Article 178 of the CC, adultery with a child from Article 180 of the CC, etc.), and against marriage and family (such as domestic violence from Article 194 of the CC).

3.    Protection of children as victims of sexual abuse and sexual offenses

Although, essentially, the Constitution of the Republic of Serbia from 2006 contains only one provision that explicitly refers to children’s rights, it can be said that the Constitution from 2006 sets a broad normative framework for the special protection of children in the overall legal order. Thus, for the first time in the constitutional and legal history of Serbia, the Constitution explicitly talks about the rights of the child in Article 64 , which bears the title “Child’s Rights” (Analysis, 2011, p. 10). The Constitution guarantees children “the right to enjoy human rights appropriate to their age and mental maturity” (The Constitution of the Republic of Serbia, 2006). Also, in this article, the Constitution stipulates that the rights of the child are regulated by law and guarantees the child a number of individual rights, e.g. the right to a personal name, registration in the register of births, the right to know one’s origin, the right to preserve one’s identity, protection from psychological, physical, economic and any other exploitation or abuse, equal rights of children born in marriage and out of wedlock. Article 65 of the Constitution prescribes the special protection of the family, mother, and single parent, and in this sense special protection is guaranteed for children who are not cared for by their parents and children with disabilities in mental and physical development, as well as the protection of children from child labor, i.e. prohibition of work for children under 15 years of age and prohibition of work for children under 18 years of age in jobs that are harmful to children’s morals or their health.

Although the Constitution does not recognize the basic principles of the Convention on the Rights of the Child, one should keep in mind the constitutional provisions of Articles 16 and 18 of the Constitution that ratified international treaties are part of the internal legal order and are directly applicable, and that, in accordance with the provisions of Article 18, paragraph 3 of the Constitution , on human and minority rights are interpreted in favor of improving the values of a democratic society, in accordance with valid international standards of human and minority rights, as well as the practice of international institutions that supervise their implementation. With that, it can be said that the Constitution, implicitly, leaves the door open for the influence and immediate application of international standards regarding the rights of the child, setting, at the same time, the basis and normative framework for the legal regulation and protection of the child in the legal order.

The domestic legislator tried to regulate the issue of improving the rights and protection of the child’s position in criminal law with both general and special criminal legislation.

On the other hand, the protection of the procedural position of the child in criminal proceedings as an injured party is provided by the Law on juvenile offenders and the criminal protection of minors.

From the presented incriminations, we can conclude that the domestic legislator, from the aspect of substantive legal criminal incriminations, acted in accordance with the assumed international obligations and in the spirit of the international legal standards.

ZPM, as a special-preventive legal mechanism (Pavlović, 2013, p. 296), foresees that certain institutes of the general part of the Criminal Code, such as mitigation of punishment, parole and statute of limitations, cannot be applied to the perpetrators of the aforementioned criminal acts against minors. In addition, the commission of one of these criminal acts entails the occurrence of certain legal consequences of the conviction, the application of special measures against the perpetrator and the keeping of prescribed records of the perpetrators of these criminal acts. However, the provisions of the ZPM “will not be automatically applied to all perpetrators of the criminal acts listed in Article 3 of the ZPM” (Dragojlović, 2022, p. 89). In order “for the provisions of this law to be applied, it is necessary that the qualifying circumstance be met during the execution of the criminal act: that the act was committed against a minor, that is, that the minor was harmed by the criminal act” (Dragojlović, 2022, p. 89).

It seems that the most dilemma, at least as far as the professional public is concerned, is caused by the provision of Article 5 of this law entitled “Prohibition of mitigation of punishment and parole and non-statutory limitation of criminal prosecution and execution of punishment”. It prohibits the application of the three general institutes of criminal law to the perpetrators of any of these crimes. The biggest problem is created by the first of the mentioned three prohibitions, the prohibition on mitigation of punishment. It further complicates the situation regarding the already existing ban on mitigation of punishment from Article 57, paragraph 2, which was introduced in the Criminal Code, which refers to the following criminal acts, i.e. some of their forms: kidnapping (Article 134, paragraphs 2 and 3), rape (Art. 178), adultery of a helpless person (Art. 179), sexual act with a child (Art. 180), extortion (Art. 214, paragraphs 2 and 3), unauthorized production and distribution of narcotic drugs (Art. 246, paragraphs 1 and 3), illegal crossing of state borders and people smuggling (Art. 350, paragraphs 3 and 4) and human trafficking (Art. 388). It is observed that some of the mentioned criminal offenses are from the Criminal Code (rape, Article 178, paragraphs 3 and 4 of the CC; rape of a helpless person, Article 179, paragraphs 2 and 3 of the CC and rape of a child, Article 180 CC) already contained in this provision of the CC, so listing them in that context in this law was superfluous (Ristivojević, 2013, p. 331).

However, the other crimes from this law were not in the regime of the prohibition of mitigation of punishment until its adoption, and thus the circle of criminal offenses for which it is no longer possible to mitigate the punishment has been expanded. With these provisions of the CC and ZPM on the prohibition of mitigation of punishment for certain criminal acts, mitigation of punishment has ceased to be a general institution in our criminal law because it is not applied to all, but only to some (albeit a much larger number) of criminal offenses (Delić, 2010, p. 137).

The main “operational provisions of this law are contained in Articles 6 and 7. Thus, Article 6 of the Law on Special Measures regulates the legal consequences of a conviction. Namely, a conviction for a criminal offense specified in Article 3 of this law necessarily entails the following legal consequences: 1) termination of public office; 2) termination of employment, i.e. termination of calling or profession related to work with minors; 3) prohibition of acquiring public positions; 4) prohibition of establishing an employment relationship, i.e. performing a calling or occupation related to work with minors” (Law on Special Measures for the Prevention of the of criminal offenses against sexual freedom against minors, 2013). Paragraph 2 of this provision stipulates that “the legal consequences of the conviction from paragraph 1 of this article shall take effect on the day the judgment becomes final. Regarding the duration of these legal consequences of a conviction, it is prescribed that the legal consequences of a conviction from paragraph 1 point 3) and 4) of this law last for 20 years, and, according to an express provision, the time spent serving a prison sentence is not included in the duration of the legal consequences of a conviction. The judgment from paragraph 2 of this article must also be delivered to the convicted person’s employer”.

Therefore, “a clear conclusion can be drawn that with regard to points 3 and 4, i.e. the ban on acquiring public positions and the ban on establishing an employment relationship, i.e. performing a calling or occupation related to working with minors, their duration is precisely determined in advance to a duration of 20 years, and there is no possibility of a shorter duration of these legal consequences of conviction in these cases. This type of prescription can only be justified from the perspective of the legislator’s effort to be particularly punitive. However, looking at it from the aspect of criminal sanctioning, setting a fixed duration of legal consequences in advance and for such a long period of time, cannot be fully accepted” (Dragojlović, 2022, p. 91).

Moreover, Article 7 of the ZPM foresees special measures “that are imposed on a convicted person, which represent the main motive for the adoption of this special law. Thus, according to the perpetrator of the criminal offense referred to in Article 3 of this law, after serving the prison sentence, the following special measures are implemented: 1) mandatory reporting to the competent authority of the police and the Administration for the Execution of Criminal Sanctions; 2) prohibition of visiting places where minors gather (kindergartens, schools, etc.); 3) mandatory visit to professional counseling centers and institutions; 4) mandatory notification of change of residence, place of residence or workplace and 5) mandatory notification of travel abroad”.

Paragraph 2 of the same article prescribes that “the measures from paragraph 1 of this article shall be implemented 20 years after the prison sentence has been served, and paragraph 3, that after the expiration of every four years from the beginning of the application of the special measures from paragraph 1 of this article, the court that issued the first-instance judgement, ex officio decides on the need for their further implementation. A request for reconsideration of the need for further implementation of special measures from paragraph 1 of this article can be submitted by the person to whom these measures refer, and the request from can be submitted to the court that issued the first-instance verdict after the expiration of every two years from the beginning of the application of special measures”.

In addition, Article 13-15 of the ZPM stipulates that “the ministry responsible for judicial affairs keeps special records on persons convicted of criminal offenses from Article 3 of the Law. This is the de facto registry of sex offenders against minors” (Dragojlović, 2022, p. 93), which is referred to in the SE Convention, i.e. in its Article 37. From this, it can be concluded that, from a normative point of view, Serbia has assimilated its criminal legislation for international legal obligations. However, according to Dragojlović (2022, p. 87 et seq.), even after 10 years since its adoption, the ZPM has not yet started to be applied in its entirety, so as a first step it would be necessary to start with the full implementation of this law.

4.    Domestic violence and protection of the child as a victim

Violence against children is a phenomenon as old as human civilization, which leaves multiple and long-lasting consequences on the development of the child as a person, and often ends in death. Due to the child’s specific biopsychological status, which is accompanied by helplessness, dependence and vulnerability, there is a danger and risk of the child’s victimization by various forms of violence. A child can be victimized directly, when he is a direct victim of violence, or indirectly, when he witnesses violence against other family members. Violence against children represents the most difficult form of family violence and violence in general, considering the physical and psychological characteristics of the victims, the relationship of trust, emotional connection and the duty of care by those to whom children are entrusted (Puhača, 2021, p. 24).

Broader understandings of the term “abused child” include a child whose normal growth and development is prevented and threatened. According to these explanations, abuse includes not only brutal physical punishment of children, which can lead to severe physical injuries and even death, but also gross neglect of the child’s physical and psychological needs (Radovanović, 2002, p. 99). In one of the broadest definitions of abuse, it is especially emphasized that it is a continuum – long-term behavior that has taken the form of a pattern that violates or threatens the child’s right to life and development and that includes physical abuse, sexual abuse and child neglect (Obretković, 1997, p. 9).

And in protecting the family, that is, family members from violence, the domestic legislator intervened with the instruments of criminal legislation and provided, as a special offense from Article 194 of the CC, the criminal offense of domestic violence.3

In the light of Article 194 of the CC, the term domestic violence means behavior by which one family member endangers the physical integrity, mental health and tranquility of another family member. This includes in particular: inflicting or attempting to inflict bodily harm, causing fear by threatening to kill or causing bodily harm, forcing sexual intercourse, inducing sexual intercourse or sexual intercourse with a person under the age of 14 or a disabled person, restricting freedom of movement or communication with third parties, insults, as well as any other insolent, reckless and malicious behavior.

However, looking at the incrimination from the Criminal Code, we can conclude that special protection is provided to a child only by the fact that an attack directed against a child (that is, a minor) is qualified as a more serious form of this criminal offense, while special protections and incriminations, or special measures, such as there are no acts against sexual freedom.

The main regulation that contains criminal material and procedural provisions on the position of minors in criminal proceedings is the Law on Juvenile Offenders and Criminal Protection of Minors (ZOM), which entered into force on January 1, 2006. In this way, “juvenile criminal law was formally separated from the Criminal Code, that is, the Code of Criminal Procedure and the Law on Execution of Criminal Sanctions. Today, in the Republic of Serbia, the ZOM is the basic, direct source of juvenile criminal law, which, as a special regulation, has primacy in application to juvenile perpetrators of criminal acts, and under certain legal conditions also to adults” (Jovašević, 2008, p. 468). Thus, therefore, ZOM represents the lex specialis in relation to the Criminal Procedure Code, while the provisions of the CPC, as well as other regulations in the field of criminal law, pursuant to Article 4 of the ZOM, are applied subsidiarily to those issues that remain outside the ZOM regulations, i.e. they will be applied when they do not contradict the provisions ZOM.

When “conducting proceedings for criminal acts committed to the detriment of minors, all persons participating in the proceedings, especially the public prosecutor and judges in the panel, shall treat the injured party with particular care, while taking into account his age, personality characteristics, education and the circumstances in which lives, and all in order to prevent possible harmful consequences of the procedure on his personality and development” (Škulić, 2009, p. 56).

It is extremely important to point out that, in accordance with the provisions of Article 157 (The Law on Juvenile Offenders and Criminal Protection of Minors, 2005), criminal proceedings for criminal offenses from Article 150 of this law are urgent. This provision is particularly important in order to shorten the period of uncertainty, fear and discomfort experienced by a minor injured person, and to enable a trial in the shortest possible time, without violating the defense rights, and so that the child’s recovery and social reintegration in society.4

5.    Concluding considerations

The importance of protecting the rights and position of the child is exceptional. This is particularly evidenced by the intensive and extensive activity of the international community in terms of regulating the rights, position and status of children when it comes to certain negative social phenomena such as crimes against sexual freedom, prostitution, child trafficking and the like.

As we could see, as a result of extensive normative activity at the international level, both universal and regional, high standards have been set regarding the material and procedural position of the child in proceedings for various crimes. Contracting states are generally required to prescribe certain minimums, criminalize certain actions and ensure respect for the best interests of the child. These efforts are particularly embodied in the UN Convention on the Rights of the Child from 1989 and the so-called Lanzarote Convention of the Council of Europe.

Acting in accordance with international legal obligations, our country has included in its legal texts certain incriminations of criminogenic actions where women appear as persons injured by a criminal act. Also, Serbia has passed special punitive-preventive laws, which aim to deter from committing criminal acts against the sexual freedom of minors, but also to impose particularly heavy sanctions on those who commit such acts.

In the field of child protection from domestic violence, however, the domestic legislator has not yet developed its normative activity to the full extent, from the aspect of criminal law protection. Observing de lege ferenda, the domestic legislator would be justified in passing a special preventive-punitive law like the Law on Special Measures when it comes to criminal acts against the sexual freedom of minors.

Phenomena such as attacks on the sexual freedom of children and minors in general, as well as domestic violence where children often appear as victims, whether direct or indirect, cannot be eradicated by mere normative prescriptions. It is only a necessary but not sufficient step in the fight against these phenomena. Therefore, it would be desirable to start applying the existing laws in their entirety, first of all by forming a register in terms of the Law on Special Measures, and further consistent and full implementation of these laws, but also deeper cooperation of national and international police agencies, which will be managed only by one principle: the best interest of the child.

Koprivica Anja

Pravni fakultet za privredu i pravosuđe u Novom Sadu, Univerzitet Privredna akademija u Novom Sadu, Srbija

POJEDINI ASPEKTI POLOŽAJA I PRAVA DETETA KAO ŽRTVE KRIVIČNIH DELA

REZIME: Deca, kao i maloletnici uopšte, predstavljaju jednu od najosetljivijih društvenih grupa, te, sledstveno, krivična dela naročito teško pogađaju decu. Iz ovog razloga, domaći zakonodavac, kao i većina drugih, kao teži ili najteži oblik određenog krivičnog dela, odnosno kao kvalifikatornu okolnost inkriminiše kada je delo učinjeno prema detetu. Međutim, pored toga što u okviru krivičnog materijalnog zakonodavstva propisuje kvalifikovane oblike krivičnih dela kada se kao žrtva javljaju deca, zakonodavac, u okviru maloletničkog krivičnog zakonodavstva, ali i drugih specijalnih propisa, propisuje i druge mere uperene prema poboljšanju i zaštiti položaja deteta u krivičnom postupku. Ovo zbog toga što zaštita dece, kao žrtava krivičnih dela, nije samo pravno pitanje, već ono predstavlja društveni i moralni imperativ koji se mora shvatiti ozbiljno kako bi se osiguralo da sva deca dobiju neophodnu zaštitu koja je potrebna za njihov rast i razvoj. U smislu iznetog, ovaj rad ukazuje na regulisanje položaja deteta kao žrtve krivičnog dela, prvenstveno na nacionalnom nivou, polazeći od opštih standarda zaštite, do pojedinih rešenja u nekim od specifičnih pojavnih oblika kriminaliteta gde se deca često javljaju kao žrtve – porodično i seksualno nasilje.

Ključne reči: zaštita dece, krivičnopravna zaštita, nasilje u porodici, seksualno nasilje.