A/HRC/28/56
time. As the abuse may not be detected until the offender has returned to his country of
origin, it is essential that countries have the capability to prosecute them. However, the
Internet poses new challenges to territoriality. An offender can be in one country watching
the live streaming of a child who is being abused in another country. National laws should
prohibit those who watch the abuse of children wherever in the world it occurs.
57.
In addition, to ensure the prosecution of offenders, should there be statute of
limitations in respect of those offences, they should be adjusted to the particular nature of
the crime, since it can take many years before victims are willing or able to disclose the
abuse.47 Similarly, part of any appropriate criminalization policy must be the imposition of
appropriate penalties. While the Optional Protocol on the sale of children, child prostitution
and child pornography does not mandate minimum penalties, other instruments have done
so.48 Lastly, there must be political will and a proactive strategy to prosecute those offences,
since few countries with adequate legislation report effective prosecutions.49
4.
Reparation and rehabilitation of victims
58.
Article 8 of the Optional Protocol on the sale of children, child prostitution and child
pornography requires the rights and interests of child victims to be secured throughout the
legal process. The criminal prosecution of a perpetrator should not adversely affect the
health and recovery of the child victim. The Optional Protocol requires special measures to
be adopted to assist child victims in testifying and to protect their privacy. Article 14 of the
Council of Europe Convention on the Protection of Children against Sexual Exploitation
and Sexual Abuse provides additional procedural rights to victims, such as short and longterm physical and psychosocial recovery. Recovery and non-re-victimization of the child
should be given due consideration when deciding whether and when to prosecute an
offender. In the best interest of the child, that may entail allowing the victim a period of
recovery to receive the necessary support, as well as assistance in cases where the child
victims will interact with the justice system, which assistance should be child-sensitive and
respect the rights of children.
59.
While the majority of international law is focused on criminalization of the activities
and the punishment of offenders, there should also be recognition of the need to provide
redress to child victims and to compensate them for the harm suffered. Compensation and
restitution measures can ensure that child victims have the means to seek rehabilitation,
recovery and reintegration. The ability to bring a civil action should be provided regardless
of the economic status of the victim, including through the provision of legal aid or through
the establishment of a State-operated compensation system. For instance, certain pieces of
legislation recognize that those who download child pornography are contributing to the
harm suffered by the victim and are thus liable for reparation to him or her.50
5.
Prevention and protection programmes
60.
Adequate legislation, detection and reporting, and effective investigations and
prosecution can only be a partial solution without prevention and protection programmes
47
48
49
50
See art. 33 of the Council of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse.
See ibid., art. 27.
UNODC, Global Report, p. 54.
In the United States, the requirement that those who download child pornography should be obliged
to compensate the child has been ruled constitutional provided that the proximity of damage can be
shown (see 1977 Mandatory Restitution,18 USC § 2259).
15
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