Παρασκευή, 30 Δεκεμβρίου 2011

EU DIRECTIVE Proposal on combating the sexual abuse, sexual exploitation of children and child pornography



On 29.3.2010 the Commission presented a proposal for a new law on combating sexual abuse, sexual exploitation of children and child pornography [COM(2010)94 final]. The proposed Directive aims to build a more coherent framework to increase effectiveness in preventing and combating this type of crime and protecting the victims. This proposalis intended to repeal the Framework Decision 2004/68/JHA. The proposal contains provisions aimed at extending the criminalisation of child sexual abuse and exploitation and child pornography.

The most important provisions of the Directive are the following:

Art. 3 Offences concerning sexual abuse

2. Causing, for sexual purposes, a child who has not reached the age of sexual consent
under national law to witness sexual abuse or sexual activities, even without having to participate, shall be punishable by a maximum term of imprisonment of at least two years.
3. Engaging in sexual activities with a child who has not reached the age of sexual consent under national law shall be punishable by a maximum term of imprisonment of at least five years.
4. Engaging in sexual activities with a child, where:
(i) 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 eight years; or
(ii) abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence shall be punishable by a maximum term of imprisonment of at least eight years; or
(iii) use is made of coercion, force or threats shall be punishable by a maximum term of imprisonment of at least ten years.
5. Coercing a child into sexual activities with a third party shall be punishable by a maximum term of imprisonment of at least ten years.

Art. 4 Offences concerning sexual exploitation
2. Causing a child to participate in pornographic performances shall be punishable by a maximum term of imprisonment of at least two years.
3. Profiting from or otherwise exploiting a child participating in pornographic performances shall be punishable by a maximum term of imprisonment of at least two years.
4. Knowingly attending pornographic performances involving the participation of children shall be punishable by a maximum term of imprisonment of at least two years.
5. Recruiting a child to participate in pornographic performances shall be punishable by a maximum term of imprisonment of at least five years.
6. Causing a child to participate in child prostitution shall be punishable by a maximum term of imprisonment of at least five years.
7. Profiting from or otherwise exploiting a child participating in child prostitution shall be punishable by a maximum term of imprisonment of at least five years
8. Engaging in sexual activities with a child, where recourse is made to child prostitution shall be punishable by a maximum term of imprisonment of at least five years.
9. Coercing a child to participate in pornographic performances shall be punishable by a maximum term of imprisonment of at least eight years.
10. Recruiting a child to participate in child prostitution shall be punishable by a maximum term of imprisonment of at least eight years.
11. Coercing a child into child prostitution shall be punishable by a maximum term of imprisonment of at least ten years.

Art. 5 Offences concerning child pornography
2. Acquisition or possession of child pornography shall be punishable by a maximum term of imprisonment of at least one year.
3. Knowingly obtaining access, by means of information and communication technology, to child pornography shall be punishable by a maximum term of imprisonment of at least one year.
4. Distribution, dissemination or transmission of child pornography shall be punishable by a maximum term of imprisonment of at least two years.
5. Offering, supplying or making available child pornography shall be punishable by a maximum term of imprisonment of at least two years.
6. Production of child pornography shall be punishable by a maximum term of imprisonment of at least five years.

Art. 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 under national law, for the purpose of committing any of the offences referred to in Articles 3 (3) and Article 5 (6), where this proposal has been followed by material acts leading to such a meeting, shall be punishable by a maximum term of imprisonment of at least two years.

Art. 8 Consensual sexual activities between peers
The provisions of Article 3 (2), with regard to witnessing sexual activities, and (3); Article 4 (2) and (4) and Article 5 do not govern consensual sexual activities between children or involving persons who are close in age and degree of psychological and physical development or maturity, insofar as the acts did not involve any abuse.

Art.9 Aggravating circumstances
1. 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, they shall be considered as aggravating circumstances for the purposes of this Directive:
(a) the child has not reached the age of sexual consent under national law;
(b) the offence was committed against a child in a particularly vulnerable situation, notably because of a mental or physical disability or a situation of dependence;
(c) the offence was committed by a member of the family, a person cohabiting with the child or a person having abused their authority;
(d) the offence was committed by several people acting together;
(e) the offences are committed within the framework of a criminal organisation within the meaning of Framework Decision 2008/841/JHA10;
(f) the perpetrator has previously been convicted of offences of the same nature.
(g) the offence endangered the life of the child;
(h) the offence involved serious violence or caused serious harm to the child.

Art. 11 Liability of legal persons
1. 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.

Art. 16 Jurisdiction and coordination of prosecution
1. Member States shall take the necessary measures to establish its jurisdiction over the
offences referred to in Articles 3 to 7 where:
(a) the offence is committed in whole or in part within its territory; or
(b) the offender is one of its nationals or has a habitual residence in its territory; or
(c) the offence is committed against one of its nationals or a person who has a habitual residence in its territory; or
(d) the offence is committed for the benefit of a legal person established in the territory of that Member State.


Art. 18 Assistance and support to victims
1. Member States shall take the necessary measures to ensure that assistance and support are provided to victims before, during and for an appropriate time after criminal proceedings.


Art. 19 Protection of child victims in criminal investigations and proceedings
1. Member States shall take the necessary measures to ensure that in criminal investigations and proceedings, judicial authorities appoint a special representative for the child victim where, by national law, the holders of parental responsibility are precluded from representing the child as a result of a conflict of interest between them and the child victim, or where the child is unaccompanied or separated from the family.

Art. 21 Blocking access to websites containing child pornography

1. Member States shall take the necessary measures to obtain the blocking of access by Internet users in their territory to Internet pages containing or disseminating child pornography. The blocking of access shall be subject to adequate safeguards, in particular to ensure that the blocking is limited to what is necessary, that users are informed of the reason for the blocking and that content providers, as far as possible, are informed of the possibility of challenging it.
2. Without prejudice to the above, Member States shall take the necessary measures to obtain the removal of internet pages containing or disseminating child pornography.


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