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Framework decision on combating the sexual exploitation of children and child pornography
|The purpose of this Framework Decision
is to harmonise the legislative and regulatory provisions of the Member States concerning
police and judicial cooperation in criminal matters with a view to combating trafficking
in human beings, the sexual exploitation of children and child pornography. It introduces
common European provisions to address certain issues such as the creation of offences,
penalties, aggravating circumstances, jurisdiction and extradition.
Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the
sexual exploitation of children and child pornography.
Since the Council adopted the 1997
concerning action to combat trafficking in human beings and sexual exploitation of
children, initiatives have multiplied at both national and regional levels. However,
the conclusions of the Tampere European Council and the European Parliament resolution
of 11 April 2000 call for further legislative action to refine certain aspects of
criminal law and procedure. The framework decision, an instrument introduced by the
Treaty of Amsterdam, should help to improve the response to those priorities.
Article 1 of the Framework Decision defines certain key terms such as "child",
"child pornography", "computer system" and "legal person". The Commission considers
that, in accordance with the UN Convention on the Rights of the Child, "child" should
cover all persons under the age of 18 even though they have attained a degree of
Article 2 sets out behaviour that is punishable as "offences concerning sexual
exploitation of children":
- coercing a child into prostitution or into participating in pornographic performances,
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;
- abuse of trust, authority or influence over a child.
Forms of conduct that are punishable as "an offence concerning sexual exploitation
of children" (whether undertaken by means of a computer system or not) are:
- the production of child pornography;
- the distribution, dissemination or transmission of child pornography;
- offering or otherwise making child pornography available;
- the acquisition and possession of child pornography.
Member States must take the necessary measures to ensure that the instigation
of one of the listed offences, or an attempt to commit that offence, is punishable.
The penalties prescribed by each Member State must be "effective, proportionate
and dissuasive". Prison sentences for offences defined by Articles 2, 3 and 4 must
be at least between one and three years. Sentences for certain aggravated offences
must be at least between five and ten years. Article 5 provides the following list
of aggravating circumstances concerning the offence, without prejudice to other circumstances
that may be introduced in national legislation:
- the victim is a child below the age of sexual consent under national law;
- the offender has deliberately or by recklessness endangered the child's life;
- the offences involve serious violence or caused serious harm to the child;
- the offences are committed in the framework of a criminal organisation within
the meaning of Joint Action 98/733/JHA.
Each Member State must take the necessary measures to ensure that a natural person
who has been convicted of one of the offences may, if appropriate, be temporarily
or permanently prevented from exercising professional activities related to the supervision
Moreover, the Framework Decision introduces criminal and civil liability for legal
persons, which supplements that of the liability of natural persons. A legal person
will be liable if the infringement is committed on its behalf by another person,
acting either individually or as part of an organ of the legal person, or who has
authority to take decisions on behalf of the legal person.
The sanctions on legal persons are to be "effective, proportionate and dissuasive",
which includes criminal or non-criminal fines and may include specific penalties
such as: temporary or permanent disqualification from the practice of commercial
activities, a judicial winding-up order and exclusion from entitlement to public
benefits or aid.
To ensure that the offences do not go unpunished through conflicts of jurisdiction,
the Framework Decision introduces criteria for conferring jurisdiction. A State will
have jurisdiction where:
- the offence is committed within its territory (the principle of territoriality);
- the offender is one of its nationals (the active personality principle);
- the offence is committed for the benefit of a legal person established in the
territory of the Member State.
The second criterion is particularly important for Member States that do not extradite
their nationals. Those States must take the necessary measures to prosecute offences
committed outside their territory. In order to avoid positive conflicts, Member States
are to consult each other and information will be exchanged through national contact
points to be established. They will also be able to use a series of existing cooperating
mechanisms, such as liaison magistrates and the European Judicial Network.
Member States must establish assistance programmes for victims and their families
in accordance with Framework Decision 2001/220/JHA.
Member States must take the necessary measures to comply with the Framework Decision
no later than 20 January 2006. The provisions adopted by the Member States must be
transmitted to the General Secretariat of the Council and to the Commission. On the
basis of a report established using this information and a written report from the
Commission, the Council will assess, by 20 January 2008, whether the national measures
comply with the Framework Decision.
Further information is contained in the
Communication from the Commission
concerning combating trafficking in human beings and combating the sexual exploitation
of children and child pornography.
||Entry into force
||Deadline for transposition in the Member
|Council Framework Decision 2004/68/JHA
||OJ L 13 of 20.01.2004, p. 13
Last updated: 27.02.2005