PURPOSE:
to recast Framework Decision 2004/68/JHA on the sexual abuse, sexual
exploitation of children and child pornography by including new provisions
aimed at making it more effective.
PROPOSED ACT:
Directive of European Parliament and of the Council.
BACKGROUND:
with regard to child victims, the main cause of this phenomenon is
vulnerability resulting from a variety of factors. Insufficient response by
law enforcement mechanisms contributes to the prevalence of these phenomena,
and the difficulties are exacerbated because certain forms of offences
transcend national borders. Victims are reluctant to report abuse, variations
in national criminal law and procedure may give rise to differences in
investigation and prosecution, and convicted offenders may continue to be
dangerous after serving their sentences. Developments in information
technology have made these problems more acute by making it easier to produce
and distribute child sexual abuse images while offering offenders anonymity
and spreading responsibility across jurisdictions. Ease of travel and income
differences fuel so-called child sex tourism, resulting often in child sex
offenders committing offences abroad with impunity.
National
legislation covers some of these problems, to varying degrees. However, it is
not strong or consistent enough to provide a vigorous social response to
this disturbing phenomenon. The recent Council of Europe Convention CETS
No. 201 on the Protection of Children against Sexual Exploitation and Sexual
Abuse ("the COE
Convention") arguably constitutes the highest international standard
for protecting children against sexual abuse and exploitation to date.
However, not all Member States have yet acceded to this Convention.
At EU level, Council
Framework Decision 2004/68/JHA, introduces a minimum of approximation of
Member States’ legislation to criminalise the most serious forms of child
sexual abuse and exploitation, to extend domestic jurisdiction, and to
provide for a minimum of assistance to victims. Although the requirements
have generally been put into implementation, the Framework Decision has a
number of shortcomings. It approximates legislation only on a limited number
of offences, does not address new forms of abuse and exploitation using
information technology, does not remove obstacles to prosecuting offences
outside national territory, does not meet all the specific needs of child
victims, and does not contain adequate measures to prevent offences. It is
therefore necessary to recast this text in order to respond to the needs of
these new challenges.
It should be
noted that this proposal would replace existing legislation in place since
2004, and builds on a proposal
made on 25/03/2009. After the entry into force of the Lisbon Treaty, this
proposal has to be reshaped. This will allow the Commission to verify that EU
law is correctly translated into national rules and take those countries that
are not complying to Court.
IMPACT
ASSESSMENT: the Commission considered several options:
- option
1: no new EU action;
- option
2: complement existing legislation
with non-legislative measures: Framework Decision 2004/68/JHA, would
not be amended. Instead, non-legislative measures could be put in place
to support coordinated implementation of national legislation. This
would include exchanging information and experience in prosecution,
protection or prevention, awareness raising, cooperation with private
sector and encouragement of self regulation, or the setting up of
mechanisms for data collection;
- option
3: new legislation on prosecuting
offenders, protecting victims, and preventing offences: a new
legislative act would be adopted, incorporating the existing Framework
Decision, certain provisions of the COE Convention, and additional
elements not contained in either of these. It would cover prosecution of
offenders, protection of the victims, and prevention of the phenomenon;
- option
4: new comprehensive legislation:
the existing provisions of Framework Decision 2004/68/JHA would be
supplemented by EU action to amend substantive criminal law and
procedure, protect victims, and prevent offences as under option 3, plus
the non-legislative measures identified under option 2 to improve the
implementation of national legislation.
Following the
analysis of the economic impact, social impacts, and impacts on fundamental
rights, options 3 and 4 represent the best approach to the problems and
achieve the objectives of the proposal. The preferred option would be option
4, followed by option 3.
LEGAL BASIS:
Articles 82 (2) and 83 (1) of the Treaty on the Functioning of the EU. Given
the cross-border dimension, EU action is required as the objective of
effectively protecting children cannot be sufficiently achieved by Member States,
either at central level or at regional or local level.
CONTENT: the
proposal will both repeal and incorporate Framework
Decision 2004/68/JHA to include the following new elements:
- substantive
criminal law: serious forms of child sexual
abuse and exploitation currently not covered by EU legislation would be
criminalised. This includes, for instance, the organisation of travel
arrangements with the purpose of committing sexual abuse, something
particularly relevant, but not exclusively, in the context of child sex
tourism. The definition of child pornography is amended to approximate
it to the COE Convention and the Optional Protocol to the Convention on the
Rights of the Child. Special consideration is given to offences against
children in a particularly vulnerable situation. In particular, the
level of criminal penalties should be increased so that they are
proportionate, effective and dissuasive. To determine the degree of
seriousness and attach penalties proportionate to it, consideration is
given to different factors which may intervene in very different sorts
of offences, like the degree of harm to the victim, the level of
culpability of the offender and the level of risk posed to society.
Accordingly, a number of relations between offences can be established.
In general terms, activities involving sexual contact are more
serious than those which do not; the presence of exploitation makes
the offence more serious than its absence; coercion, force or threats
are more serious than abuse of a position of power of the offender or
weakness of the victim, which in turn is more serious than free consent
of the victim. Prostitution, which involves sexual activities and money,
is more serious than pornographic performances, which may or may not
include them; recruiting to prostitution or similar is more serious than
mere causing, as it involves active seeking of children as commodities.
On child pornography, production, usually involving recruiting and
sexual contact with the child, is more serious than other offences like
distribution or offering, which in turn are more serious than possession
or access. As a result of combining these different criteria, distinction
is thus made between five different groups of offences, depending on
their degree of seriousness, leading to accordingly different levels of
penalties for the basic crimes;
- new
criminal offences in the IT environment: new
forms of sexual abuse and exploitation facilitated by the use of IT
would be criminalised. This includes on-line pornographic
performances, or knowingly obtaining access to child pornography,
to cover cases where viewing child pornography from websites without
downloading or storing the images does not amount to "possession
of" or "procuring" child pornography. Also the new
offence of "grooming" is incorporated closely following
the wording agreed in the COE Convention.
- criminal
investigation and initiation of criminal proceedings: a number of provisions would be introduced to assist with
investigating offences and bringing charges. A mechanism to coordinate
prosecution in cases of multiple jurisdictions is included, but may be
superseded once the proposal for a Framework Decision on conflict of
jurisdiction in criminal proceedings is adopted;
- prosecution
of offences committed abroad: rules on
jurisdiction would be amended to ensure that child sexual abusers or
exploiters from the EU, both nationals and habitual residents, face
prosecution even if they commit their crimes outside the EU, via
so-called sex tourism;
- protection
of victims: new provisions will be included
to ensure that victims have easy access to legal remedies and do not
suffer from participating in criminal proceedings. They cover assistance
and support to victims, and protection of victims specifically in
criminal investigations and proceedings;
- prevention
of offences: amendments would be introduced
to help prevent child sexual abuse and exploitation offences, through a
number of actions concentrating on previous offenders to prevent
recidivism, and to restrict access to child pornography on the
internet. The aim of restricting such access is to reduce the
circulation of child pornography by making it more difficult to use the
publicly-accessible Web. It is not a substitute for action to remove the
content at the source or to prosecute offenders;
- other
protective measures not contained in the COE Convention: the proposal includes elements not contained in the COE
Convention, notably: (i) ensuring implementation across the EU of
prohibitions from activities with children imposed on offenders; (ii)
blocking access to child pornography on the internet; (iii)
criminalising coercing a child into sexual relations with a third party and
child sexual abuse online; (iv) a non-punishment clause for child
victims. It also goes beyond the obligations imposed by the COE
Convention regarding the level of penalties, free legal
counselling for child victims and repression of activities encouraging
abuse and child sex tourism. Moreover, incorporating provisions from the
Convention into EU law will facilitate faster adoption of national
measures compared to national procedures for ratification, and ensure
better monitoring of implementation.
Territorial
scope: the adoption of the proposal will be
addressed to the Member States. The application of the resulting Directive to
the United Kingdom, Ireland and Denmark will be determined in accordance with
the provisions of Protocols (No 21) and (No 22) annexed to the Treaty on the
functioning of the European Union.
BUDGETARY
IMPLICATION: the proposal has no implication for the Community budget.