COMMITTEE EXAMINES REPORTS OF POLAND ON CHILDREN IN ARMED CONFLICT, SALE OF CHILDREN, CHILD SEXUAL EXPLOITATION AND CHILD PORNOGRAPHY

Committee on the Rights of the Child

22 September 2009


The Committee on the Rights of the Child today reviewed the initial reports of Poland on how that country is implementing the provisions of the two Optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography.

In opening remarks to the Committee, Zdzislaw Rapacki, Permanent Representative of Poland to the United Nations Office at Geneva, presenting the report on the Optional Protocol on the involvement of children in armed conflict, said that there was a process of reorganization of the National Forces of Poland, which sought to establish a military service of professional soldiers. The relevant Act would come into force on 1 January 2010. There were no cases that had been reported in the Polish refugee system of foreign minors seeking refugee status who had been involved in armed conflicts. For children that had witnessed armed conflicts, there was a programme which provided for legal and psychological assistance for minors or other persons who had suffered traumatic experiences.

Turning to the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography, Mr. Rapacki said that, for the preponderance of the crimes addressed in the Protocol, the complexity of the methods of acquisition and collection of evidence and the fact that international crime groups acted in a highly organized manner, all showed that combating trafficking in children and child prostitution and pornography necessitated the adoption of comprehensive solutions. In April 2009, the National Intervention and Consultancy Centre for Victims of Trafficking had been inaugurated. It offered help for victims of trafficking, both Polish nationals and foreign citizens. A Team for the Prevention of the Discrimination Against Minors in Electronic Media had also been established. Its main tasks included preparing proposals for necessary changes in Polish law with a view to the protection of minors and issuing opinions on identified cases of discrimination against minors due to their exposure to harmful content in electronic media.

In preliminary concluding observations, Committee Expert Awich Pollar, Rapporteur for the report of Poland on the Optional Protocol on children in armed conflict, said that today’s discussion – which had covered issues such as international protection of victims, the training of peacekeepers, as well as the export of arms – had shown that Poland was quite in line with the provisions of the Convention. Furthermore, where lacuna had appeared, there was already legislation that was in preparation to address the relevant gaps.

In additional concluding observations, Committee Expert Dainius Puras, Rapporteur for the report of Poland on the Optional Protocol on the sale of children, child prostitution and child pornography, said that the Committee would do its best to provide, in its concluding observations, ideas of what could be done to improve the situation in various areas. Still more had to be done, for example, in order to fill the gaps in the protection of victims and their rehabilitation.

The Committee will release its formal, written concluding observations and recommendations on the reports of Poland towards the end of its three-week session, which will conclude on 2 October.

Also representing the delegation of Poland were representatives from the Ministry of Foreign Affairs, the Ministry of Justice, National Police Headquarters, the Ministry of National Defence and the Ministry of Education.

When the Committee next reconvenes in public at 10 a.m. on Monday, 28 September, it will take up the combined third and fourth periodic report of Pakistan under the Convention (CRC/C/PAK/3-4).

Reports of Poland

The initial report of Poland under the Optional Protocol on the involvement of children in armed conflict (CRC/C/OPAC/POL/1) says that according to the Polish law, people under 18 are not obliged to undergo military service, and cannot participate in military actions. Under the Act on the Universal Duty of Defence of the Republic of Poland, all Polish citizens are subject to defence duty if they are capable thereof as regards their age and physical condition. The age of obligatory registration for basic military service is specified in Article 31 of the act, stating that all men turning 18 in the given calendar year are subject to the registration as preconscripts. Conscription concerns those men who turn 19 in the given calendar year. In exceptional cases, the Council of Ministers may introduce the obligation of conscription of men turning 18 in the given calendar year. As regards penal sanctions for the recruitment of children, the current Penal Code does not explicitly penalize such actions. However, the provision of the Protocol regarding that issue is partly implemented through the Penal Code, which states that whoever recruits Polish citizens or foreigners staying in Poland to the hired military service forbidden by international law, as well as pays for such service, organizes, trains or uses it, is subject to penalty. The Ministry of Justice is currently working on a draft amendment to the Penal Code in order to introduce an expressis verbis ban on the conscription or recruitment of persons under the age of 18 into the military service.

The initial report of Slovenia under the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography (CRC/C/OPSC/SVN/1) says that recently a series of amendments were introduced into Polish legislation in order to improve the legal protection of children, in particular from sexual crimes. For instance, sanctions for sexual exploitation of children under 15 were raised, as well as for all types of rape. Moreover, the extent of criminalization of sexual behaviour towards children under 15 was widened. Taking into account the special protection of children under 15, the legislature raised the penalties for recording pornographic materials with such children. Currently the criminal offence under the Penal Code is punishable on conviction with 1 to 10 years imprisonment, while before the amendments of 2005 it used to be punishable on conviction with 3 months to 5 years imprisonment. Due to the rising activity of paedophiles and their use of the Internet to contact children, a draft bill would criminalize contacts with children on the Internet or in another telecommunications network and using those contacts for arranging meetings with children. It also would provide for the publishing of the perpetrator’s photograph and introducing the possibility for the Court to order such a publication, if the Court considers it useful due to the social impact of the penalty, when it does not violate the interests of the victim.

Presentation of Reports

ZDZISLAW RAPACKI, Permanent Representative of Poland to the United Nations Office at Geneva, stressing the importance that Poland attached to the promotion and protection of the rights of the child, noted that this year marked the twentieth anniversary of the Convention on the Rights of the Child, a project which Poland had initiated. It remained one of the most important international Polish initiatives in the realm of human rights. Today, the Convention was one of the few international instruments with almost universal recognition.

Turning to the Optional Protocol on the Involvement of Children in Armed Conflict, Mr. Rapacki said that, generally, dissemination of knowledge of the provisions of the Optional Protocol took place within the framework of awareness-raising on international humanitarian law. Officers of the Polish Army had started to participate systematically in international seminars and courses devoted to that area of law. New publications and teaching materials had also been prepared. Handbooks including information within the scope of international humanitarian law and the law of armed conflict had been prepared for the participants of the Polish Military Contingents. Cooperation with the International Committee of the Red Cross was also very important for the dissemination of information on the international humanitarian law and the law of armed conflict.

Mr. Rapacki said that a new subject called “education for safety” had been introduced in lower and upper secondary schools starting this year. School students would become familiar not only with the functioning of civil protection and civil defence and the political and military conditions of state safety guarantees, but with the origin and documents of the international humanitarian law.

Compulsory military service was set forth in the Act on the Universal Duty to Defend the Republic of Poland and applied to males, starting on the 1 January of the calendar year in which they completed 18 years of age and females with qualifications useful for the services. Voluntary military service was also regulated by this Act, said Mr. Rapacki.

There was also a process of reorganization of the National Forces of Poland, which sought to establish a military service of professional soldiers. The relevant Act would come into force on 1 January 2010. The law empowered the President of Poland to decide on the resumption of mandatory military service, taking into account the level of risk to the security of the Polish State.

On assistance provided to foreigners seeking refugee status, including assistance provided to minors, Mr. Rapacki said that the Act on Granting of Protection to Aliens within the Territory of Poland specified the scope of assistance that was provided to them. Unaccompanied minors seeking refugee status were placed with a professional foster family, acting as an emergency family care or educational care facility. In practice, all minors were placed in educational care facilities. They were provided with accommodation, food and pocket money, as well as medical and psychological care.

At some of the care centres for refugee children, children took advantage of the opportunity to participate in educational and integration activities conducted by non-governmental organizations. In most of the centres there were pre-schools adjusted to the children’s needs, which were run by the refugee themselves under the supervision of the centre staff.

Mr. Rapacki noted that there were no cases that had been reported in the Polish refugee system of foreign minors seeking refugee status and who had been involved in armed conflicts. For children that had witnessed armed conflicts, there was a programme which provided for legal and psychological assistance to minors and other persons who had suffered traumatic experiences.

Turning to the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, Mr. Rapacki said that, for the preponderance of the crimes addressed in the Protocol, the complexity of the methods of acquisition and collection of evidence and the fact that international crime groups acted in a highly organized manner all showed that combating trafficking in children and child prostitution and pornography necessitated the adoption of comprehensive solutions. Numerous public institutions, both at the national and local levels, were undertaking adequate activities and special structures for combating trafficking in human beings had been appointed within the Polish law enforcement bodies.

In June 2008, a team for ongoing monitoring and coordination of the Border Guard’s activities in preventing and combating crimes of trafficking in human beings had been established at the National Borer Guard Headquarters, Mr. Rapacki said. Within the National Public Prosecutor’s Office there was also a coordinator for trafficking in human beings, and permanent coordinators had been appointed at the appellate prosecutor’s office. Their task was to provide other prosecutors with assistance in complicated proceedings concerning this issue. Issues of trafficking were also discusses during trainings of judges, prosecutors, police officers and officers of the Border Guard.

In April 2009, the National Intervention and Consultancy Centre for Victims of Trafficking had been inaugurated. It offered help for victims of trafficking, both Polish nationals and foreign citizens, said Mr. Rapacki. The National Plan against Trafficking in Human Beings 2009-2010 also included awareness raising campaigns targeted at schoolchildren and involved training for educators.

A Team for the Prevention of the Discrimination Against Minors in Electronic Media had also been established, Mr. Rapacki noted. Its main tasks included preparing proposals for necessary changes in Polish law with a view to the protection of minors and issuing opinions on identified cases of discrimination against minors due to their exposure to harmful content in electronic media. The Team had contributed to the adoption of the Agreement for Child Safety on the Internet and the Best Practices Code. New amendments had also been introduced into the Criminal Code in 2008 which increased the protection of the child against sexual abuse.

Mr. Rapacki further noted that there were a number of initiatives designed to sensitize the general public to the scale of crimes of trafficking in children, child prostitution and child pornography.

Discussion on the Optional Protocol on the Involvement of Children in Armed Conflict

AWICH POLLAR, the Committee Expert serving as Rapporteur for the report of Poland on the involvement of children in armed conflict, said he was aware that Poland had played a very important role in the drafting of the Convention and its Optional Protocols and that there were even people in the delegation that had been involved in the drafting of the Optional Protocol. The Committee welcomed the ratification of the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography by Poland in 2005, as well as the signing of the Convention on the Rights of Persons with Disabilities n 2007.

Turning to areas of concern, Mr. Pollar wondered about the operationalization of the dissemination of information about the Convention and its Optional Protocols and the budget allocated to that. Also, were there any children in military schools? What measures were in place for the identification of refugee children that had been involved in armed conflicts? On arms export, what measures were in place in Poland to prevent the export of arms to countries where children were involved in armed conflicts?

Other Experts then made comments and asked various questions, including on the possibility accorded by the Polish legislation of having volunteers of 17 years old entering the military; the curriculum of schools and how it covered the Optional Protocol; what was the status of the Criminal Code aimed at criminalizing recruitment under 18 years of age; and whether Polish authorities intervened if minors where being recruited to serve as private security personnel in Afghanistan. Moreover, had there been any studies on small arms and light weapons in connection with children in Poland?

Response by Delegation

Responding to these questions, the delegation said that they had a very comprehensive and intense training for military officers and instructors in the area of children in situations of armed conflict and international humanitarian law. They had also published two textbooks on international humanitarian law, and paid great attention to that subject in the training of the military and peacekeeping troops. The Government was also setting up a school, in cooperation with the Polish Red Cross, on international humanitarian law.

Education programmes on international humanitarian law included the Convention and its two Optional Protocols, the delegation confirmed. Education on international humanitarian law was indeed obligatory for schoolchildren.

The delegation could not say how much of the budget was allocated to the dissemination of information on the Convention itself, as it was included in the broader education on international humanitarian law.

On military education, those were schools of tertiary education and there was thus no possibility for minors to be enrolled in such schools, indicated the delegation. Regarding arms exports, that was regulated and carefully monitored.

Further, there was no possibility that people under 18 years could be eligible for military service. It was true that the current legislation said that conscription started on 1 January of the year a person turned 18, thus theoretically allowing the recruitment of a child of 17 years of age; however, the recruitment process currently started at the moment a Polish citizen turned 18. That also applied to the voluntary military service. Further, a new law was being drafted which would clearly state that conscription solely applied to males who had already turned 18 years old.

On the identification of refugee children who could have been involved in armed conflict, the delegation said that the Polish Office of Foreigners was tasked with that issue.

Referring to the question of forced conscription of people under the age of 18, the delegation said that a draft provision was currently being discussed in Poland, which would provide for a penalty for anyone who conscripted a person under the age of 18 in a foreign military force and actually used such people in an armed conflict. Under that new law, such activity would be regarded as a war crime.

On access to small arms and light weapons by children, the delegation said that there was a very restrictive attitude with regard to firearms in Poland. It was very difficult to obtain weapons and only people of 18 years of age had the right to acquire weapons, once they had obtained the necessary permit. The application for a weapons’ permit also had to be justified. The number of firearms granted to Polish citizens was relatively small. Minors had no legal possibility of having access to firearms.

Turning to the Ombudsman, the delegation indicated that there were two such institutions in Poland: one general Ombudsman and one for children. Both Ombudspersons were elected by the Parliament for a period of five years. They had independent offices at their disposal and the necessary budgetary for the conduct of their activities were allocated to them.

The Ombudsman for children had to this date not registered any complaints under the Optional Protocol on the involvement of children in armed conflict, the delegation noted. Both Ombudsmen had the right and the possibility to enter and conduct fact-finding investigations in all public administration institutions dealing with children.

Discussion on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography

DAINIUS PURAS, the Committee Expert serving as Rapporteur for the report of Poland on the Optional Protocol on the sale of children, child prostitution and child pornography, said that Poland had made significant progress since its adoption of the Optional Protocol, particularly in the area of assistance to child victims and international cooperation. But there were still gaps to be filled in many areas. Limited assistance was still being provided to victims of trafficking and child exploitation.

Mr. Puras noted that there were several ministries involved with regard to the Optional Protocol, but none seemed to be responsible for evaluation and monitoring of its implementation. He asked if there was a specific budget allocated to the implementation of the Optional Protocol, as well as for the training of relevant officials and the broader dissemination of information about it.

Mr. Puras also wondered about the role and contribution of the civil society with regard to the Optional Protocol in Poland. The Committee had been impressed by the high level of professionalism of the non-governmental organisations involved with this Protocol during an earlier meeting. That huge experience could be better used by the Government and the cooperation with the civil society could be improved. The Committee was also concerned that non-governmental organizations had not been invited to take part in the preparation of the report.

On specific issues, could the delegation comment on the issue of young girls being exploited along the German border, Mr. Puras asked?

Concerning vulnerable groups, children who had been left behind by parents who had immigrated to other countries were particularly at risk, Mr. Puras observed. What was the Government doing to help such children? Another specific group which might be at risk were children living in care institutions; were there any programmes targeted for that group of children? Even more vulnerable were foreign children crossing the border. Poland was a source and transit country for trafficking. Information showed that police and border authorities were investigating only a limited number of cases due to budgetary constraints and were not enough informed about the Optional Protocol.

Turning to the protection of child victims, Mr. Puras said that a serious step forward had been the creation of child-friendly interview rooms throughout the country. He also appreciated the fact that those interviews were videotaped. But the number of such adequately equipped rooms and the number of specialized interviewers was too low. Also, those facilities were not necessarily always used by the judge, which indicated that they were not taking the well-being of the child into account enough.

Other Committee Experts also made comments and asked various questions, including on the effects of the activities undertaken with regard to prevention; the situation of Roma children in Poland, in particular with regard to the offences covered by the Optional Protocol; whether there had been any evaluation of the existing training efforts in Poland with regard to the Optional Protocol; and whether there was a specific definition of the act of sale of children, child prostitution and child pornography in Poland’s domestic legislation. On the criminal responsibility of moral persons, did Polish law allow for the prosecution of acts carried out outside of the territory? Also, was Poland planning to ratify the Council of Europe’s Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse?

Other questions were asked on illegal adoptions, and whether it was happening at the international or national level; whether there was a clear definition of human trafficking in the Polish Penal Code; and what had been done to shorten the period and duration of judicial proceedings in cases of human trafficking.

An Expert also noted that the Polish legislation defined child pornography only as “pictures depicting children in sexual acts”. That was a very narrow definition. The Convention provided for a broader definition which also included depicting simulated explicit sexual activities or any representation of the sexual parts of a child as well as material containing “virtual” children.

Response by Delegation

Responding to those and other questions, the delegation said that both the Convention and the Optional Protocols were part of Polish legislation and could be applied directly. Judges could apply the definition of human trafficking as included in the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children or the Optional Protocol of the Convention of the Rights of the Child, as those two instruments had been acceded to by Poland.

Poland currently had no definition of trafficking in persons in its legislation. But, for example, in cases of trafficking for child labour, anyone who induced a child to perform forced labour was punishable under specific provisions of the Criminal Code. Polish courts could also invoke the Optional Protocol, the delegation added.

Under Polish law it was prohibited to have sexual intercourse with a child less than 15 years of age. Child pornography was a crime and was defined as such in the Polish Criminal Code. The penalty provided for that crime was the deprivation of liberty from three months to five years.

Polish criminal law had no explicit definition of child pornography, the delegation continued. However, the features of the Protocol were included in Polish legislation and any person who produced, recorded, stored, possessed, disseminated or publicly presented pornographic material that included minors could be punished by deprivation of liberty. A person recording pornographic material with the participation of minors could also be punished.

The delegation indicated that children between 15 and 18 years of age who recorded sexual acts for their personal use were not punishable, as it was considered that those children had attained their sexual majority and were capable of discernment. However the transfer of such material to a third person was punished.

Turning to adoption, the delegation said that under Polish Law, it was impossible for a parent to decide who could adopt their own children; that process was undertaken by the Children’s Court to avoid any possibility of the sale of children. A number of criteria had to be met by the prospective parents before they could adopt a child. The child’s opinion was also taken into consideration in legal adoption. Whoever engaged in adoption for the purpose of obtaining a benefit could be deprived of liberty to up to five years. In 2008, there had been one sentence for the perpetration of illegal adoption.

As to activities taken by the Police force to combat trafficking in persons, the delegation said that both the police force and the border guards had units that addressed that issue. The utmost was done to ensure that those teams included experts on combating the sale of children and child pornography.

In the near future, a new set of laws would be introduced on the Polish Criminal Code that would include penalties for the preparation and planning of trafficking in persons, the delegation noted. When it came to combating child pornography and child prostitution, contact with a child through Internet or other means of communication would also be prohibited. Another new type of crime would be the penalization of paedophile behaviour.

Turning to the fight against paedophile activity, the delegation said that the Polish Police were in the possession of many technologies which helped them to eliminate child pornography. Special software allowed the tracing of people who downloaded or uploaded child pornography material. Just today, the police were running a nation-wide anti-paedophile raid. Police officers had entered over 50 homes and had so far apprehended a few dozen people.

On trafficking in persons in Poland, the delegation stressed that the very phenomena of trafficking in children was relatively small as compared with the trafficking in adults, in particular trafficking in women for sexual purposes, the delegation said.

Very recently, the Polish Police had tackled the issue of children being forced to beg. A national programme on that issue had been set up at the National Police headquarters, which was now being carried out by the provincial police forces.

Turning to the inter-ministerial team on human trafficking, the delegation said that it had developed a plan of action which aimed at, among other aspects, detecting minor trafficking victims. The plan would see the adoption of tools speeding up the detection of victims and guidelines on what to do to help them. Those principles of action for the detection of victims would be used by all law enforcement officers. The guidelines would be used by certain units as a pilot programme.

The delegation said that the Government also envisaged conducting an analysis of the phenomena of child abuse in Poland.

It was true that along the western border of Poland there was an emerging trend of sex tourism. What the police had noticed was that big shopping malls, railroad stations and bus depots were being used as places for first contacts between children and adults. However, that phenomena was not a dramatic phenomenon, and was not as important as the trafficking of women for sexual purposes, and was being closely monitored by the police.

The Government was conducting an awareness-raising campaign on human trafficking targeting students. Educational brochures had been published for educators and teachers. Meetings between young people and police officers were also being conducted. Preventive measures were also undertaken during mass events and during this year’s biggest Rock festival in Poland they had distributed a comic strip on the issue of human trafficking.

The delegation confirmed that the coordination of all activities related to children and linked to the Convention and the Optional Protocols was the principle objective of the Polish Council of Ministers. Each ministry was taking action in the nationwide programmes, according to their field of competence.

Turning to the Roma and their children, the delegation said that there were some 15,000 Roma in Poland, out of a total population of 38 million. The Government had adopted a programme for the Roma society in 2003. The programme had a 10-year duration, with the possibility of being prolonged. Since the programme had started, the number of Roma children attending schools had risen significantly.

The delegation said that Poland had signed the Council of Europe’s Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse in 2005. The issue of ratification was still under discussion.

Regarding cooperation with non-governmental organizations and civil society, the delegation emphasized that civil society had played a very important historic role in Poland, especially during the period of democratic changes in the 1980s. Thus, the Government saw the collaboration with non-governmental organizations as a partnership.

With respect to children in need of care, the delegation said that that was being implemented by centres, which helped families through financial assistance, for example for house renovations or for supplementary meals.

As for data collection on sex tourism, the delegation said that such crimes were being closely monitored by the law enforcement authorities and that statistics on that issue would be included in their next report.

Regarding sexual education in schools, the delegation said that this was part of the school curriculum and was taught to all children. The only exceptions were when parents did not wish their child to attend such classes or when a person over 18 was not willing to take those courses.

Preliminary Concluding Observations

In preliminary concluding observations, Committee Expert AWICH POLLAR, Rapporteur for the report of Poland on the Optional Protocol on children in armed conflict, said that today’s discussion had shown that Poland was quite in line with the provisions of the Protocol on children and armed conflict. They had covered several issues during today’s discussion, such as international protection of victims, the training of peacekeepers, as well as the export of arms. Further, where lacuna had appeared, there was already legislation that was in preparation to address the relevant gaps.

In additional preliminary observations, Committee Expert DAINIUS PURAS, Rapporteur for the report of Poland on the Optional Protocol on the sale of children, child prostitution and child pornography, said that the dialogue had been very helpful to the Committee and that it would do its best to provide, in the concluding observations, ideas of what could be done to improve the situation in various areas, such as in the collection of statistical data. Still more had to be done in order to fill the gaps in the protection of victims and their rehabilitation. It was however clear that commitment had been felt today and he hoped that today’s dialogue would help improve the life of children in Poland.


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