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Document 02011L0093-20111217
Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA
Consolidated text: Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA
Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA
02011L0093 — EN — 17.12.2011 — 000.001
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DIRECTIVE ►C1 2011/93/EU ◄ OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 December 2011 (OJ L 335 17.12.2011, p. 1) |
Corrected by:
DIRECTIVE ►C1 2011/93/EU ◄ OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 13 December 2011
on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA
Article 1
Subject matter
This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, child pornography and solicitation of children for sexual purposes. It also introduces provisions to strengthen the prevention of those crimes and the protection of the victims thereof.
Article 2
Definitions
For the purposes of this Directive, the following definitions apply:
‘child’ means any person below the age of 18 years;
‘age of sexual consent’ means the age below which, in accordance with national law, it is prohibited to engage in sexual activities with a child;
‘child pornography’ means:
any material that visually depicts a child engaged in real or simulated sexually explicit conduct;
any depiction of the sexual organs of a child for primarily sexual purposes;
any material that visually depicts any person appearing to be a child engaged in real or simulated sexually explicit conduct or any depiction of the sexual organs of any person appearing to be a child, for primarily sexual purposes; or
realistic images of a child engaged in sexually explicit conduct or realistic images of the sexual organs of a child, for primarily sexual purposes;
‘child prostitution’ means the use of a child for sexual activities where money or any other form of remuneration or consideration is given or promised as payment in exchange for the child engaging in sexual activities, regardless of whether that payment, promise or consideration is made to the child or to a third party;
‘pornographic performance’ means a live exhibition aimed at an audience, including by means of information and communication technology, of:
a child engaged in real or simulated sexually explicit conduct; or
the sexual organs of a child for primarily sexual purposes;
‘legal person’ means an entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations.
Article 3
Offences concerning sexual abuse
Engaging in sexual activities with a child, where:
abuse is made of a recognised position of trust, authority or influence over the child, shall be punishable by a maximum term of imprisonment of at least 8 years if the child has not reached the age of sexual consent, and of at least 3 years of imprisonment, if the child is over that age; or
abuse is made of a particularly vulnerable situation of the child, in particular because of a mental or physical disability or a situation of dependence, shall be punishable by a maximum term of imprisonment of at least 8 years if the child has not reached the age of sexual consent, and of at least 3 years of imprisonment if the child is over that age; or
use is made of coercion, force or threats shall be punishable by a maximum term of imprisonment of at least 10 years if the child has not reached the age of sexual consent, and of at least 5 years of imprisonment if the child is over that age.
Article 4
Offences concerning sexual exploitation
Article 5
Offences concerning child pornography
Article 6
Solicitation of children for sexual purposes
Member States shall take the necessary measures to ensure that the following intentional conduct is punishable:
the proposal, by means of information and communication technology, by an adult to meet a child who has not reached the age of sexual consent, for the purpose of committing any of the offences referred to in Article 3(4) and Article 5(6), where that proposal was followed by material acts leading to such a meeting, shall be punishable by a maximum term of imprisonment of at least 1 year.
Article 7
Incitement, aiding and abetting, and attempt
Article 8
Consensual sexual activities
Article 9
Aggravating circumstances
In so far as the following circumstances do not already form part of the constituent elements of the offences referred to in Articles 3 to 7, Member States shall take the necessary measures to ensure that the following circumstances may, in accordance with the relevant provisions of national law, be regarded as aggravating circumstances, in relation to the relevant offences referred to in Articles 3 to 7:
the offence was committed against a child in a particularly vulnerable situation, such as a child with a mental or physical disability, in a situation of dependence or in a state of physical or mental incapacity;
the offence was committed by a member of the child’s family, a person cohabiting with the child or a person who has abused a recognised position of trust or authority;
the offence was committed by several persons acting together;
the offence was committed within the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime ( 12 );
the offender has previously been convicted of offences of the same nature;
the offender has deliberately or recklessly endangered the life of the child; or
the offence involved serious violence or caused serious harm to the child.
Article 10
Disqualification arising from convictions
Article 11
Seizure and confiscation
Member States shall take the necessary measures to ensure that their competent authorities are entitled to seize and confiscate instrumentalities and proceeds from the offences referred to in Articles 3, 4 and 5.
Article 12
Liability of legal persons
Member States shall take the necessary measures to ensure that legal persons may be held liable for any of the offences referred to in Articles 3 to 7 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, and having a leading position within the legal person, based on:
a power of representation of the legal person;
an authority to take decisions on behalf of the legal person; or
an authority to exercise control within the legal person.
Article 13
Sanctions on legal persons
Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 12(1) is punishable by effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and may include other sanctions, such as:
exclusion from entitlement to public benefits or aid;
temporary or permanent disqualification from the practice of commercial activities;
placing under judicial supervision;
judicial winding-up; or
temporary or permanent closure of establishments which have been used for committing the offence.
Article 14
Non-prosecution or non-application of penalties to the victim
Member States shall, in accordance with the basic principles of their legal systems take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on child victims of sexual abuse and sexual exploitation for their involvement in criminal activities, which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 4(2), (3), (5) and (6), and in Article 5(6).
Article 15
Investigation and prosecution
Article 16
Reporting suspicion of sexual abuse or sexual exploitation
Article 17
Jurisdiction and coordination of prosecution
Member States shall take the necessary measures to establish their jurisdiction over the offences referred to in Articles 3 to 7 where:
the offence is committed in whole or in part within their territory; or
the offender is one of their nationals.
A Member State shall inform the Commission where it decides to establish further jurisdiction over an offence referred to in Articles 3 to 7 committed outside its territory, inter alia, where:
the offence is committed against one of its nationals or a person who is an habitual resident in its territory;
the offence is committed for the benefit of a legal person established in its territory; or
the offender is an habitual resident in its territory.
Article 18
General provisions on assistance, support and protection measures for child victims
Article 19
Assistance and support to victims
Article 20
Protection of child victims in criminal investigations and proceedings
Without prejudice to the rights of the defence, Member States shall take the necessary measures to ensure that in criminal investigations relating to any of the offences referred to in Articles 3 to 7:
interviews with the child victim take place without unjustified delay after the facts have been reported to the competent authorities;
interviews with the child victim take place, where necessary, in premises designed or adapted for this purpose;
interviews with the child victim are carried out by or through professionals trained for this purpose;
the same persons, if possible and where appropriate, conduct all interviews with the child victim;
the number of interviews is as limited as possible and interviews are carried out only where strictly necessary for the purpose of criminal investigations and proceedings;
the child victim may be accompanied by his or her legal representative or, where appropriate, by an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.
Member States shall take the necessary measures to ensure that in criminal court proceedings relating to any of the offences referred to in Articles 3 to 7, that it may be ordered that:
the hearing take place without the presence of the public;
the child victim be heard in the courtroom without being present, in particular through the use of appropriate communication technologies.
Article 21
Measures against advertising abuse opportunities and child sex tourism
Member States shall take appropriate measures to prevent or prohibit:
the dissemination of material advertising the opportunity to commit any of the offences referred to in Articles 3 to 6; and
the organisation for others, whether or not for commercial purposes, of travel arrangements with the purpose of committing any of the offences referred to in Articles 3 to 5.
Article 22
Preventive intervention programmes or measures
Member States shall take the necessary measures to ensure that persons who fear that they might commit any of the offences referred to in Articles 3 to 7 may have access, where appropriate, to effective intervention programmes or measures designed to evaluate and prevent the risk of such offences being committed.
Article 23
Prevention
Article 24
Intervention programmes or measures on a voluntary basis in the course of or after criminal proceedings
Member States shall take the necessary measures to ensure that the following persons may have access to the intervention programmes or measures referred to in paragraph 1:
persons subject to criminal proceedings for any of the offences referred to in Articles 3 to 7, under conditions which are neither detrimental nor contrary to the rights of the defence or to the requirements of a fair and impartial trial, and, in particular, in compliance with the principle of the presumption of innocence; and
persons convicted of any of the offences referred to in Articles 3 to 7.
Member States shall take the necessary measures to ensure that the persons referred to in paragraph 3 to whom intervention programmes or measures in accordance with paragraph 4 have been proposed:
are fully informed of the reasons for the proposal;
consent to their participation in the programmes or measures with full knowledge of the facts;
may refuse and, in the case of convicted persons, are made aware of the possible consequences of such a refusal.
Article 25
Measures against websites containing or disseminating child pornography
Article 26
Replacement of Framework Decision 2004/68/JHA
Framework Decision 2004/68/JHA is hereby replaced in relation to Member States participating in the adoption of this Directive without prejudice to the obligations of those Member States relating to the time limits for transposition of the Framework Decision into national law.
In relation to Member States participating in the adoption of this Directive, references to Framework Decision 2004/68/JHA shall be construed as references to this Directive.
Article 27
Transposition
Article 28
Reporting
Article 29
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
Article 30
Addressees
This Directive is addressed to the Member States in accordance with the Treaties.
( 1 ) OJ C 48, 15.2.2011, p. 138.
( 2 ) Position of the European Parliament of 27 October 2011 (not yet published in the Official Journal) and decision of the Council of 15 November 2011.
( 3 ) OJ C 364, 18.12.2000, p. 1.
( 4 ) OJ C 115, 4.5.2010, p. 1.
( 5 ) OJ L 13, 20.1.2004, p. 44.
( 6 ) OJ L 82, 22.3.2001, p. 1.
( 7 ) OJ L 328, 15.12.2009, p. 42.
( 8 ) OJ L 101, 15.4.2011, p. 1.
( 9 ) OJ L 182, 5.7.2001, p. 1.
( 10 ) OJ L 68, 15.3.2005, p. 49.
( 11 ) OJ L 49, 17.2.2007, p. 30.
( 12 ) OJ L 300, 11.11.2008, p. 42.
( 13 ) OJ L 93, 7.4.2009, p. 23.