The protection of the rights of children who fall victim to prostitution and the possible means of prevention – follow-up investigation conducted by the commissioner for fundamental rights
It raises concerns that those children in a coerced situation who are caught in the act of prostitution continue to be threatened by misdemeanor procedures and sanctions, said Ombudsman László Székely in his follow-up report. The Commissioner thinks that rather than insisting on solutions involving law enforcement, the experts of the child protection system should be strengthened and better prepared to recognize endangerment in time and to take meaningful actions against it. In the report, it is not only a number of legislative and practical measures that are recommended but attention is drawn to best practices as well.
In 2011. the Commissioner conducted an ex officio investigation on whether child prostitution exists in Hungary and on what measures are taken by the police forces and the child protection agencies when faced with such phenomena. Based on the legislative changes of the relatively long period that has elapsed since then, the signals that were sent to the Office, as well as other experience gained from the inquiries, the Ombudsman now reviewed what had happened to the recommendations made in the report, how the European Union and international human rights obligations undertaken by Hungary had been met, and what results had been achieved in combating child prostitution. The Commissioner requested information from the members of the child protection signaling system, the regional child welfare services, some children’s homes, as well as the national, the Budapest, the district and the county police headquarters. It was also confirmed by the follow-up investigation that child prostitution is present in each county that was assessed, as well as in the capital city. However, due to latency, the child protection authorities or the police only become aware of a small part of such actions.
In Hungary, the Lanzarote Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse was announced in July 2015. Child protection, according to the definition of the Convention, means using a child under the age of 18 years for any sexual act if money, remuneration or any other allowance is provided or promised as an exchange for the services, irrespective of whether the payment, the promise or the allowance is provided to the child or a third person. The Ombudsman thinks that we should start out from the idea that the act of prostitution committed by a minor cannot be voluntary: the minors are engaged in such an activity as a result of some physical, emotional or economic coercion or threat. Children should thus be regarded as victims even if they do not feel they are victims or if the force that is used is not spectacular, i.e. the act is motivated by obtaining material gains or dependency. It raises concerns that the effective law views the children involved in prostitution as offenders rather than victims, who can only be exempted from liability if they prove that they have performed their action as a result of coercion or threat.
The report says that it is the state’s obligation related to the protection of rights to provide efficient support to children who are in such a situation and who thus become victims. However, in the Ombudsman’s opinion, all this should be done within the framework of the child protection system, rather than by applying legal sanctions. It can be concluded from the responses given by the assessed authorities that the application of the misdemeanor sanction is not functional: in the case of a child in a coerced situation or under threat, neither general, nor special prevention may work. The problem is caused by that an act of coercion or a threat is very hard to prove, the children do not report the persons inducing them to pursue acts of prostitution to the police, they do not testify against them, and they often withdraw their reports. Ombudsman László Székely László concluded that the legal situation in which children between 14 and 18 years of age may be sanctioned for their engagement in acts of prostitution under the Hungarian law on misdemeanor is not compatible with the obligations set out in the Lanzarote Convention and it also causes an impropriety related to children’s rights. It was emphasized by the Commissioner that the Lanzarote Convention also requires more efficient support and protection to be provided to the victims, without this, the phenomenon of child prostitution cannot be suppressed in Hungary.
It is stipulated by the report that the threat of becoming a victim of prostitution may multiply in the children’s homes at the times of leave and escape from the institutions. In grave and recurring cases, the justified but proportionate temporary isolation of the children in question may prove to be a good solution. It raises concerns that at the moment, the child protection institutions feel helpless, while the accountable guarantees for the proportionate restriction of personal freedom are missing. There are many good practices that are used by the institutions but there is no comprehensive campaign aimed at practical solutions, and no training programs, further training courses, guidelines or protocols, which would make such work easier, are available to the majority of the experts. The Commissioner pointed out that despite some slow progress, no genuine achievements can be made for suppressing this phenomenon, which is due to the lack of a state action package aimed at the elimination of child prostitution and translated into reality, the lack of the targeted further training of child protection experts, as well as the lack of comprehensive preventive measures, i.e. an action plan that is much more intensive than the current one.
The Commissioner proposed that the Minister of the Interior consider the amendment of the act on misdemeanor in order to achieve that a person under the age of 18 years should not be punishable for committing the infringement of prostitution. He requested the Minister of Human Capacities to support the proposals made by the expert working group involved in the suppression of child prostitution threats that affect those children who are under child protection care. The Ombudsman also proposed that a specific action package, an action plan be elaborated, in the context of which general campaigns in which the children are educated on their rights should be organized. He proposed that training programs aimed at helping child protection experts recognize child prostitution be launched. He asked the Chief of the National Police Headquarters to review the protocols on handling the phenomenon of child prostitution, the element of the national crime prevention programs which deal with the issue of child prostitution, as well as to consider the general use of the best practices of county police headquarters, and to make the cooperation between the county-level police units and the child protection authorities, especially the children’s homes, meaningful and continuous.