Combating the sexual exploitation of children and child pornography

The purpose of this Framework Decision is to approximate the laws and regulations of the Member States in relation to police and judicial cooperation in criminal matters, so as to combat the sexual exploitation of children and child pornography. It introduces a framework of common provisions on criminalisation, sanctions, aggravating circumstances, assistance to victims and jurisdiction.

ACT

Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography.

SUMMARY

This Framework Decision lists a number of behaviours which as offences related to the sexual exploitation of children are to be considered illegal:

• coercing a child * into prostitution or profiting from or otherwise exploiting a child for such purposes;
• engaging in sexual activities with a child, where use is made of coercion, force or threats, money or other forms of remuneration or consideration are given as payment in exchange for the child engaging in sexual activities, or abuse is made of a recognised position of trust, authority or influence over the child.

The following is deemed to be punishable conduct that constitutes an offence related to child pornography *, whether undertaken by means of a computer system * or not:

• production of child pornography;
• distribution, dissemination or transmission of child pornography;
• supplying or making available child pornography;
• acquisition and possession of child pornography.

Each Member State is obliged to take the necessary measures to ensure that instigation of one of the aforementioned offences and any attempt to commit the prohibited conduct is punishable.

Each Member State must make provision for criminal penalties which entail imprisonment for at least one to three years. For certain offences committed in aggravating circumstances, the penalty must entail imprisonment for at least five to ten years. The Framework Decision provides a list of aggravating circumstances, which does not preclude the recognition of other circumstances under national law:

• the victim is a child below the age of sexual consent under national law;
• the offender has deliberately or by recklessness endangered the life of the child;
• the offences involve serious violence or caused serious harm to the child;
• the offence has been committed within the framework of a criminal organisation as defined in Joint Action 98/733/JHA.

Each Member State may take measures to ensure that a natural person, i.e. an individual, convicted of one of the aforementioned offences be prevented from exercising professional activities related to the supervision of children.

In addition the Framework Decision establishes the criminal and civil liability of legal persons *. This liability is complementary to that which is borne by natural persons. A legal person is deemed to be liable if an offence is committed for its benefit by another person who acts individually or as part of an organ of the legal person, or who has decision-making powers.

Sanctions on legal persons must include criminal or non-criminal fines and other sanctions such as temporary or permanent disqualification from the practice of commercial activities, a judicial winding-up order or exclusion from entitlement to public benefits or aid.

To prevent a crime from going unpunished because of a conflict of jurisdiction, the Decision establishes criteria for determining jurisdiction. A State has juridisction if:

• the offence is committed within its territory (territoriality principle);
• the offender is a national of that Member State (active personality principle);
• the offence is committed for the benefit of a legal person established in the territory of that Member State.

A State that refuses to extradite its nationals must take the necessary measures to prosecute them for offences committed outside its territory.

Each Member State must establish programmes of assistance for the victims and their family in accordance with Framework Decision 2001/220/JHA.

Background

Since the Council adopted a Joint Action in 1997 on combating human trafficking and the sexual exploitation of children, the number of initiatives being taken has increased at both national and regional levels. The aim of the Framework Decision is to regulate certain aspects of criminal law and procedure more stringently, so as to complement other related instruments, such as those provided for in Joint Actions 2008/976/JHA and 96/277/JHA, the Decision on combating child pornography on the Internet, and the Safer Internet and Daphne Programmes.

RELATED ACTS

Report from the Commission based on Article 12 of Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography [COM(2007) 716 final - Not published in the Official Journal]. This report concludes that most Member States have adopted the necessary measures to comply with the provisions of the Framework Decision on combating the sexual exploitation of children and child pornography. The Commission notes the need to revise the Framework Decision, in particular to deal with offences related to developments in electronic communications technologies.

Last updated: 27.02.2008