Text taken from Ivana Radačić (forthcoming). ‘Croatia’. In: S. Jahnsen and H. Wagenaar (eds.) Assessing Prostitution Policies in Europe, Milton Park, UK: Routledge
Two bodies of law regulate prostitution: criminal and misdemeanour. Selling sexual services constitutes a misdemeanour against public peace and order, while prostitution-related offences are prohibited by the Criminal Code.
Act on the Misdemeanours against Public Peace and Order
The Act was adopted in 1977, and transferred into Croatian legislation with minor amendments in 1990.i The Act prescribes two offences: allowing for the use of one’s premises for prostitution or enabling or helping a person to engage in prostitution (Article 7); and engaging in (‘falling into’) prostitution (Article 12). According to commentators, the term ‘engaging/falling into prostitution’ should be interpreted as the repeated selling of sexual services (Milivojević et al., 2013). Sex workers are often arrested, tried and sentenced simply for being in a ‘suspect’ street, once they are known to the police (Kolarec et al., 2009; Radačić, unpublished). The penalties for either offence are a fine or imprisonment (maximum
60 days for Article 7 offence and maximum 30 days for Article 12 offence). In relation to the Article 12 offence, two security measures can be ordered: obligatory treatment of STDs or AIDS if a person is infected, and expulsion from the council in which the offence was committed for a period ranging from 30 days to 6 months. There is no official data on the implementation of the two measures. However, an analysis of the case-files of the Zagreb Misdemeanour Court shows that 3 and 1 expulsion orders were issued by that court in 2014 and 2015 respectively.
Although this solution of penalising sex workers is based on patriarchal double standards of morality (Danna, 2013), for decades it has been relatively unquestioned by the Government, academics, civil society or the general public. In 2012, the Ministry of the Interior (2012: 5) decided to remove ‘legal gaps and inconsistencies’ in the Act by, inter alia, criminalising clients. The proposal was, however, never presented to Parliament, as one of the parties in the then ruling centre-left coalition disagreed with its content. In May 2016, the Ministry of the Interior, under the new centre-right Government (which received a lack of confidence vote on
16 June 2016), sent an almost identical proposal for public consultation, which ended on 6 June 2016. Under the new proposal, Article 9 offence (enabling prostitution) is to be deleted as it is included in the Criminal Code, while Article 12 is to be changed in the following manner:
- offering or requesting sexual services for money or other forms of exchange in public is to be criminalised;
- provision of sexual services (which does not need to be of a repeated nature, as in the current Act) and receiving the services (which does not need to be in public) is to be criminalised.
Extending criminalisation to the one-time provision of sexual services, as well as simply the offering of services, might increase the problem of violations of sex workers’ rights (e.g. arbitrary arrests, unfair trials). Moreover, under this proposal, fines are heavier than those currently being imposed. According to recent Zagreb Misdemeanour Court practices, fines usually range from 300 to 500 kunas (44 to 66 Euros), while the new proposals set the following fines: 2,000 to 5,000 kn (267-667 Euros) for proposing and requesting services in public and 3,000 to 7,0000 kn (400-935 Euros) or up to 40 days imprisonment for giving and receiving sexual services.ii Thus, if passed, this proposal would worsen an already bad situation of the most vulnerable category of sex workers – those working on the street.
The Criminal Code
From 1997, when Croatia had its first criminal law reform as an independent state, until 1 January 2013, when the new Criminal Codeiii entered into force, two prostitution-related offences were criminalised: transnational prostitution and pandering/pimping. Trafficking in human beings was criminalised in 2003. The new Code introduced a criminal offence called prostitution, under the Section entitled “Offences against Sexual Freedom”. In addition, pandering/pimping of children was placed under the “Section of Offences of Sexual Abuse of Children”, while trafficking in human beings, an offence placed under the “Section of International Crimes”, was slightly changed.
The basic form of the offence of prostitution comprises instigating or soliciting persons for offering sexual services, as well as organising or abetting prostitution, for which imprisonment from 6 months to 5 years is prescribed. Consent of the person to engage in sexual services is irrelevant, as is the fact that s/he was previously engaged in prostitution. The qualified offence presupposes some form of compulsion (force, threat, deceit, abuse of power), for which 1 to 10 years imprisonment is prescribed. The use of services of a person who has been compelled to sell sex is also criminalised with the same penalty (if a person knew or should have known that there was some form of compulsion), which is the biggest change in the new Code. Also new is the criminalisation of advertising of sexual services. Since May 2015, self-advertising is no longer a crime.
The offence of pandering/pimping of children is defined in similar terms, but penalties are more serious: 1-10 years imprisonment for a basic form and 3-15 for a qualified form. The use of services of children is also criminalised: where the child is under no obvious compulsion, the penalty of 6 months to 5 years imprisonment is prescribed, while the use of services of a child where compulsion was applied is criminalised by 3 to 15 years imprisonment. Responsibility is foreseen where the person knows or should have known that the person is a child.
The offence of trafficking is modelled on the definition of the UN Convention on Trafficking in Human Beings. Its elements are: 1. use of some form of compulsion, 2. to solicit, move, hide or exchange human beings, 3. for the purpose of exploitation, inter alia, for prostitution.
The basic offence carries 1-10 years imprisonment. Consent is irrelevant where some of the means specified in the provision are used. No compulsion is necessary when a child is being trafficked, while compulsion in such cases makes an offence a qualified one,iv with the penalty of 3-15 years imprisonment. The use of services of a trafficked person is an offence, penalised with the same penalty as for traffickers.
The Croatian Criminal Code hence criminalises all prostitution-related activities committed by third parties, and in certain circumstances, clients, while the Proposal of the Act on Misdemeanours against Public Peace and Order would not only extend criminalisation of clients in all circumstances but would enhance punitive measures against the sex workers. This is against trends in European prostitution policies in Europe, as well as against the recommendations of the EU Parliament.v For many years, Croatia has been one of the few countries in Europe where engaging in prostitution was an (misdemeanour) offence. The way out of this discriminatory treatment, according to the relevant ministry, was not to decriminalise sex workers, but rather to criminalise clients as well. This is indicative of the dominant discourse on prostitution as a “social evil”.
||Regulation of Prostitution
||Act on Misdemeanours against Public Peace and Order
||Article 12 criminalises a person who engages in (falls into prostitution.
||Article 175 criminalises clients of underage persons or persons forced into prostitution, or trafficked persons, when they know or should know about these circumstances.
||Act on Misdemeanours against Public Peace and Order
||Article 7 criminalises allowing for one’s premises to be used for prostitution or enabling another or otherwise helping another person to engage in prostitution.
Article 175 criminalises alluring or inciting another person to give sexual services or organising or enabling another person to give sexual services with the purposes of gaining benefits. A qualified form the offence is committed by using force or threats or deceit or abusing power. Advertising of a prostitution of another person is also criminalised.
Article 162 criminalises the same acts committed against the minor.
|Trafficking in persons
||Article 106 criminalises alluring, transporting, hiding, taking in, exchanging a person or transferring power over a person, by use of force, threats, deceit, abuse of power, giving or receiving monetary benefits for securing consent of person who has another person in power, for the purposes of exploitation(for prostitution). No use of force or other forms of compulsion is required when the victim is a child. Qualified form of offence is constituted when any form of compulsion is committed against a child, or when an offence is committed by an official person, or if there are more victims, or if a life of a person
has been endangered.
i Official Gazette 41/77, 53/87, 55/89, 5/09, 30/90.
ii According to the Croatian Foundation for Statistic, average net salary in April 2016 was cca 753 euros. http://www.dzs.hr/Hrv/system/first_results.htm.
iii Official Gazette 125/11 and 144/12, 56/15 and 61/15.
iv The offence is also qualified if it is committed by a public official, is against more than one person, or if the lives of one or more persons are consciously endangered.