Combatting Sexual Exploitation of Children

EUROPEAN PARLIAMENT

1999

2004

Summit document

FINAL

A5-0206/2001

31 May 2001

REPORT

regarding the draft framework decision of the Council on combating the sexual exploitation of children and child pornography

(COM(2000) 854 – C5‑0043/2001 – 2001/0025(CNS))

Committee on Civil Liberties, Justice and Home Affairs.

Presenter: Anna Karamanou

Rapporteur of the opinion (*):

Christa Prets, Committee on Women’s Rights and Gender Equality

Rapporteur:

Elizabeth Lynne, Committee on Culture, Youth, Education, Media and Sport.

(*) Enhanced Hughes Procedure

Glossary of symbols used.

* Consultation process.
majority of the voters **I Collaboration process (first reading)
majority of those voting **II Cooperation procedure (second reading)
majority of the voters for the approval of the common position
majority of the members of Parliament for the rejection or amendment of the common position *** Agreement
majority of the members of Parliament, except in cases mentioned in Articles 105, 107, 161, and 300 of the EC Treaty and in Article 7 of the Treaty. ΕΕ ***I Co-decision procedure (first reading)
majority of voters ***II Co-decision procedure (second reading)
majority of voters for approval of the common position
majority of Members of Parliament for rejection or amendment of the common position ***III Co-decision procedure (third reading)
majority of the voters for the approval of the common proposal (The proposed procedure is based on the legal basis suggested by the Commission)

Amendments to legislative text

In the Parliament’s amendments, the marking is done in bold italics. The marking in regular italics is addressed to the technical services and refers to elements of the legislative text for which corrections are proposed in view of the final text processing (for example, elements that are obviously incorrect or have been omitted in a linguistic version). These correction proposals are subject to the approval of the relevant technical services.

CONTENTS.

Page

HISTORICAL BACKGROUND OF THE PROCESS……………………………………………………………………………………. 4

LEGISLATIVE PROPOSAL………………………………………………………………………………………… 6

DRAFT LEGISLATIVE RESOLUTION………………………………………………………………… 24

EXPLANATORY MEMORANDUM…………………………………………………………………….. 25

ANNEX I: PROPOSAL FOR A RESOLUTION B5-0496/2000………………………………………. 31

APPENDIX II: PROPOSAL FOR RESOLUTION B5-0499/2000……………………………………… 32

OPINION OF THE COMMITTEE ON CULTURE, YOUTH, EDUCATION, MEDIA AND SPORT…………………………………………………………………………………………………………. 33

OPINION OF THE COMMITTEE ON WOMEN’S RIGHTS AND GENDER EQUALITY (*) 47

(*) Enhanced Hughes Procedure

Background of the procedure

In its letter dated February 7, 2001, the Council invited the Parliament to give its opinion, in accordance with Article 39(1) of the EU Treaty, on the Council’s proposal for a decision to combat the sexual exploitation of children and child pornography (COM(2000) 854 – 2001/0025 (CNS)).

At the meeting on February 12, 2001, the President of the Parliament announced that she had referred the proposal for substantive examination to the Committee on Civil Liberties, Justice and Home Affairs, and for opinion to the Committee on Culture, Youth, Education, Media and Sport, the Committee on Employment and Social Affairs, and the Committee on Women’s Rights and Gender Equality (C5-0043/2001).

At the meeting on February 15, 2001, the President of the Parliament announced that the Committee on Women’s Rights and Gender Equality, responsible for opinion, would cooperate in drafting the report in accordance with the enhanced Hughes procedure.

At its meeting on February 27, 2001, the Committee on Civil Liberties, Justice and Home Affairs appointed Ms. Anna Karamanou as rapporteur.

At its meeting on April 11, 2001, the committee decided to include the following proposals for resolutions in its report:

– B5–0496/2000, by Ms. Cristiana Muscardini, concerning the protection of children and the fight against pedophilia on the Internet, which was referred on June 13, 2000, to the Committee on Civil Liberties, Justice and Home Affairs, as responsible for substantive examination, and to the Committee on Culture, Youth, Education, Media and Sport for opinion;

– B5–0499/2000, by Ms. Cristiana Muscardini and others, concerning the blocking of access to child pornography sites on the Internet, which was referred on June 13, 2000, to the Committee on Civil Liberties, Justice and Home Affairs, as responsible for substantive examination, and to the Committee on Culture, Youth, Education, Media and Sport for opinion;

At its meetings on April 11, April 25, and May 29, 2001, the committee examined the Commission’s proposal as well as the draft report.

At the last mentioned meeting, the committee approved the draft legislative resolution with 21 votes in favor, 2 votes against, and 3 abstentions.

Present during the vote were Members Graham R. Watson (chair), Robert J.E. Evans (vice-chair), Anna Karamanou (rapporteur), Mary Elizabeth Banotti, Alima Boumediene-Thiery, Marco Cappato, Charlotte Cederschiöld, Carmen Cerdeira Morterero (substituting for Michael Cashman), Ozan Ceyhun, Carlos Coelho, Gérard M.J. Deprez, Giuseppe Di Lello Finuoli, Marianne Eriksson (substituting for Fodé Sylla, in accordance with Article 162, paragraph 2, of the Rules), Pernille Frahm, Jorge Salvador Hernández Mollar, Margot Keßler, Timothy Kirkhope, Eva Klamt, Hartmut Nassauer, Elena Ornella Paciotti, Hubert Pirker, Patsy Sörensen, Joke Swiebel, Anna Terrón i Cusí, Gianni Vattimo, Christian Ulrik von Boetticher, and Jan-Kees Wiebenga..

The opinions of the Committee on Culture, Youth, Education, Media and Sport and the Committee on Women’s Rights and Gender Equality are attached to this report; the Committee on Employment and Social Affairs decided not to give an opinion on February 15, 2001.

The report was submitted on May 31, 2001.

The deadline for submitting amendments will be indicated on the draft agenda for the session period during which the report will be considered.

LEGISLATIVE PROPOSAL

Proposal for a Council Decision to Combat the Sexual Exploitation of Children and Child Pornography (COM(2000) 854 – C5‑0043/2001 – 2001/0025(CNS))

The proposal is amended as follows:

Text proposed by the Commission¹

Amendments of the Parliament

Amendment 1

Recital 4 a (new)

The right of children to protection and care is enshrined in Article 24 of the Charter of Fundamental Rights of the European Union, proclaimed by the European institutions on December 7, 2000,

Justification

The recognition of children’s rights in the Charter of Fundamental Rights should be part of the overall effort to create a long-term and coherent policy for children.

Amendment 2

Recital 6

The important work of international organizations should be complemented by the work of the European Union,

The important work of international organizations, particularly the adoption of the Convention on the Rights of the Child by the United Nations and the Protocol on the Sale of Children, Child Prostitution and Child Pornography, as well as the Council of Europe’s Convention on Cybercrime, should be complemented by the work of the European Union,

Justification

The European Union should complement the work of international organizations. As a member of the international community, it must not only strengthen the relevant conventions that establish the international framework for the protection of children, but also support a more coherent policy aimed at ensuring the highest level of criminal protection for children.

Amendment 3

Article 1b

(b) “Child pornography” means *pornographic material that visually depicts a child in overtly sexual behavior,*	(b) “Child pornography” means
	*(i) any audiovisual material, text, and written content, regardless of its type, such as photographs, pseudo-photographs, films, videotapes, motion pictures, drawings, computer*
	*– depicts a child, or creates the impression that the person it depicts is a child, participating or appearing in an obviously sexual act,*
	*– or has as its main feature the display of the child’s genitals or pubic area for a sexual purpose,*
	*(ii) any audiovisual material that aims to:*
	*– the encouragement, solicitation, and incitement to acts of pedophilia,*
	*– the display or provision of information about a child that can be used for the purpose of sexual exploitation.*

Justification

Perpetrators of the crime of child pornography use various methods and modern means to promote their activities. The different forms that child pornography can take should be comprehensively included in the definition of the concept of child pornography to ensure that no forms of child pornography remain unpunished.

Amendment 4

Article 2, point a)

(a) coercion, exploitation, solicitation, profit-making, or otherwise facilitating child prostitution,

(a) coercion, exploitation, solicitation, facilitation, acceptance and profit-making, buying, selling, or trafficking of a child within or outside the state with the intent for the child to engage in prostitution or explicit sexual behavior for the creation of pornographic material, whether for profit or non-profit purposes,

Justification

Due to the complexity of the issue, it is essential to ensure the criminalization of all forms of perpetration of the crime.

Amendment 5

Article 2, point c) (new)

(c) parents or those having legal custody of the child who allow the child to engage in prostitution or explicit sexual behavior for the creation of pornographic material,

Justification

There should be particular responsibility for parents and those with legal custody of the child who often allow their child to engage in prostitution.

Amendment 6

Article 2, point d) (new)

(d) any person who becomes aware of a fact that raises suspicion that a child has become a victim of sexual exploitation and fails to inform the law enforcement authorities, despite having a specific legal obligation to do so,

Justification

Failure to report the crime to law enforcement should be criminalized for individuals who have a specific legal obligation, such as those who have physical custody of the child or have a position of trust with the child (educators, social workers, etc.). The same legal obligation applies to internet service providers, which, given their inability to monitor the overall use of their services, should establish protective mechanisms for safer internet use and inform law enforcement authorities if they come across relevant material.

Amendment 7

Article 3, paragraph 1, point a)

(a) Production of child pornography material;

(a) Production αand processing of child pornography material,

Justification

Amendment 8

Article 3, paragraph 1, point b)

(b) Distributing, disseminating or transmitting child pornography, or

(b) Import, export, purchase, sell and traffic in child pornography material, or

Justification

Amendment 9

Article 3, paragraph 1, points e-g (new)

	*(e) Distribution, dissemination, or transmission of child pornography, or*
	*(f) Solicitation or facilitation of the above acts.*
	(g) Acquisition and possession of child pornography, which is punishable only when it is done knowingly or intentionally, or when possession is continued deliberately. The acquisition and possession of child pornography with the intention of handing it over to law enforcement authorities does not constitute a criminal offense.

Justification

In particular, the acceptance and possession for personal use should be punished based on specific conditions and circumstances, in accordance with the provisions of the Kirkhope report (Article 1, paragraph 1) regarding the initiative of the Republic of Austria for a Council decision to combat child pornography on the Internet, which was approved by the European Parliament on April 11, 2000.

Amendment 10

Article 3, paragraph 2

2. Each Member State shall also take the necessary measures so that, subject to the definitions provided in this framework decision, the behavior referred to in paragraph 1 is punishable when it involves pornographic material depicting a child engaged in explicit sexual behavior, unless it is proven that the person portrayed as a child was over 18 years old at the time of depiction.

Justification

The purpose of this framework decision is to criminalize the depiction of a child, or the creation of the impression that the person depicted is a child, participating in or appearing in explicit sexual acts. Consequently, any leniency in dealing with the crime undermines the objective that the framework decision aims to achieve.

Amendment 11

Article 4, paragraph 1

1. Each member state takes the necessary measures to ensure that incitement, assistance, complicity, or attempts to commit an offense referred to in Articles 2 and 3 are punishable.

1. Each member state takes the necessary measures to ensure that incitement, assistance, complicity, or attempts to commit an offense referred to in Articles 2 and 3, especially the organization of the commission of the offense or the guidance of others in committing the offense, are punishable.

Justification

Child pornography and the sexual exploitation of children are often part of organized crime, and for this reason, it must be ensured that all those involved are punished, from the actual perpetrator to those who secretly pull the strings.

Amendment 12

Article 5, paragraph 1

1. Each Member State shall take the necessary measures so that the offenses referred to in Articles 2, 3 paragraph 1, subparagraphs a) to c), and 4 are punishable by effective, proportionate, and deterrent penalties, including imprisonment for a maximum duration of not less than four years, and, concerning Article 3 paragraph 1, subparagraph d), not less than one year.

1. Each Member State shall take the necessary measures so that the offenses referred to in Articles 2, 3 paragraph 1, subparagraphs a) to f), and 4 are punishable by effective, proportionate, and deterrent penalties, including minimum sentences, among which imprisonment for a maximum duration of not less than four years, and, concerning Article 3 paragraph 1, subparagrap g), not less than one year.

Justification

It is not enough to establish maximum penalties; minimum penalties must also be considered in order for their deterrent effect to be effective.

Amendment 13

Article 5, paragraph 1a (new)

Additionally, these penalties should be accompanied by appropriate psychiatric treatment, which may continue as a supplementary form of monitoring after the completion of the sentence.

Justification

Amendment 14

Article 5, paragraph 1b (new)

Each Member State shall take the necessary measures to impose, as a supplementary measure to the conviction, the detection, seizure, and confiscation of any movable or immovable property derived from the commission of the criminal offenses referred to in Articles 2, 3, and 4.

Justification

The principle of confiscation of the proceeds of crime has been established at the European level through the Council of Europe Convention on the Laundering, Detection, Seizure, and Confiscation of the Proceeds of Crime and through the Joint Action of December 3, 1998. Therefore, it should also be applied to the crimes covered by this framework decision.

Amendment 15

Article 5, paragraph 2, first sentence

– involves a child under the age of 10, or

– involves a child under the age of 16 , or

Justification

It is arbitrary to have a difference of 10 years, as this would encourage the increased use of children just a few months older than 10. A child is defined as any person under the age of eighteen, and thus the adoption of this amendment would result in no strict penalty being imposed on someone who exploits a young person aged between sixteen and eighteen, compared to the strict penalty that would be imposed if that young person were under sixteen.

Amendment 16

Article 5, paragraph 2, third sentence

– yields significant profits, or

(deleted)

Justification

If the generation of significant profits is included as an aggravating circumstance, then a Member State runs the risk of being unable to punish an offender and/or organization in cases where the profits from child trafficking are small. This scenario is particularly undesirable.

Amendment 17

Article 5, paragraph 2, fifth sentence (new)

– involves children with physical or mental disabilities,

Justification

Amendment 18

Article 5, paragraph 3

– involves a child under the age of 10, or

– involves a child under the age of 16, or

Justification

Amendment 19

Article 5, paragraph 3, third subparagraph (new)

– involves children with physical or mental disabilities,

Justification

Amendment 20

Article 5, paragraph 4, introduction

4. Without prejudice to additional definitions in the legislation of the Member States, the Member States shall take the necessary measures to ensure that an offense referred to in Article 3, paragraph 1, subparagraphs (a) to c), and those related to Article 4, is punishable by imprisonment for a maximum duration of not less than eight years, when:

4. Without prejudice to additional definitions in the legislation of the Member States, the Member States shall take the necessary measures to ensure that an offense referred to in Article 3, paragraph 1, subparagraphs (a) to f), and those related to Article 4, is punishable by imprisonment for a maximum duration of not less than eight years, when:

Justification

See Amendment 9.

Amendment 21

Article 5, paragraph 4, first subparagraph

– involves a child under the age of 10, or

– involves a child under the age of 16, or

Justification

Amendment 22

Article 7, introductory part

Each member state takes the necessary measures so that the legal entity which is liable under Article 6 is subject to effective, proportionate, and dissuasive sanctions, including monetary penalties or fines, and may include other sanctions, such as:

Each member state takes the necessary measures so that the legal entity held liable under Article 6 is subject to effective, proportionate, and deterrent sanctions, which include monetary penalties or fines. as well as the confiscation of all proceeds derived from child pornography and the sexual exploitation of children. Member states will reallocate these amounts for the protection and rehabilitation of victims. They have the option to include other sanctions such as:

Justification

The principle of confiscating profits from criminal activities is already well established at the European level through the Council of Europe (see the Convention on Money Laundering, the Investigation and Confiscation of the Proceeds of Crime, and through the Joint Action of December 3, 1998). Furthermore, the reallocation of these profits is crucial for preventing crimes and caring for victims.

Amendment 23

Article 8, paragraph 1 b)

(b) The offender of the offense is a national of that state, or

(b) The offender of the offense is a national of that state, or resides permanently or temporarily in the territory of that state, or

Justification

The establishment of jurisdiction by each Member State should not solely concern the nationals of that specific state but should also extend to those residing in that state. A number of countries have taken relevant initiatives to revise their legislative framework. The proposal is in line with the text of the Council of the European Union’s Joint Action of 1997.

Amendment 24

Article 8, paragraph 1 (c)

(c) The offense is committed for the benefit of a legal or natural person established in the territory of that member state.

Justification

Member States shall take the necessary measures to establish their jurisdiction for the mentioned criminal offenses when the offense is committed for the benefit of all persons established in the territory of that Member State. This includes both legal and natural persons.

Amendment 25

Article 8, paragraph 2

2. A Member State may decide that the jurisdiction rules set out in paragraph 1, subparagraphs (b) and (c), do not apply or apply only in certain cases or circumstances, provided that the offense is committed outside its territory.

2. Based on the principles governing this Framework Decision, offenses committed in third countries by a national of the European Union shall be punished in accordance with the national legislation of the Member State of which that person is a citizen.

Justification

If the offense of sexual exploitation of children has been committed in a third country by a national of the European Union, then criminal prosecution against them must be initiated by the Member State of which they are a national. There should be no exception that allows such individuals to be exempt from this responsibility.

Amendment 26

Article 8, paragraph 3 (a) (new)

When a Member State maintains the requirement of dual criminality, it should revise its legislation so that this specific requirement does not hinder the adoption of effective measures against its nationals or those residing in that state who are suspected of committing the offenses referred to in Articles 2, 3, and 4.

Justification

The amendment maintains the wording of the text of the Council of the European Union’s Joint Action of 1997. The assurance of criminal prosecution for related offenses should not be hindered by relevant procedural provisions in the legislation of the Member States.

Amendment 27

Article 8, paragraph 3 (b) (new)

Member States must revise their legislation regarding the extradition of their nationals who are suspected of committing related offenses under this Framework Decision, so that crimes committed in a third country do not escape criminal prosecution.

Justification

The assurance of criminal prosecution for related offenses should not be hindered by the reluctance of Member States to extradite their nationals. Taking relevant initiatives by Member States will be an important step in the effort to combat the phenomenon of sexual tourism, both within and outside the territory of the European Union.

Amendment 28

Article 9

Each member state ensures that victims of the offenses covered by this framework decision are provided with adequate legal protection and representation in judicial proceedings. Member states ensure that victims and witnesses receive appropriate legal advice, support from a child psychologist, and interpretation services in their language. Member states also ensure the use of simple, appropriate, and understandable language for victims and their families, so they fully comprehend the procedures. Children are allowed to give recorded testimonies. In particular, member states ensure that investigations and judicial proceedings do not cause additional harm to the victims. To achieve this goal, each member state protects the privacy, identity, and physical integrity of victims, their families, and witnesses. Member states also provide victims with the necessary social assistance to cope with the trauma they have experienced and to facilitate their integration into society. Special residence permits are granted to victims who provide testimony and to individuals who receive these victims during judicial proceedings while the victim’s safety is at risk.

Justification

These are minimum rules that must be implemented to ensure that criminal proceedings are coherent, swift, and effective. The possibility of granting special leave from work to individuals caring for victims, as well as special residence permits for victims and those receiving them, may help prevent re-victimization and encourage victims to testify. Additionally, measures for social and medical care and the provision of safe and anonymous shelter should be included in an appropriate legal text. The experience of testifying in court can be traumatic for a child. Allowing the child to give recorded testimony away from the courtroom and with the assistance of a specially trained individual can reduce the child’s stress. It is important to provide the child with as much support as possible to avoid depression and enable the child to testify in the best possible way.

Amendment 29

Article 9, paragraph 1 (a) (new)

The awarding of financial compensation, regardless of the nationality of the child, becomes mandatory.

Justification

The issue of mandatory compensation for victims must be included in this Framework Decision, and the details of its implementation should be clarified in the context of conducting the trial. Additionally, regarding the awarding of compensation, the nationality of the child should not be a criterion; children with foreign nationality should be treated the same and enjoy the right to compensation.

Amendment 30

Article 9, paragraph 1 (b) (new)

Member States shall maintain registers of individuals who have committed the offense of child pornography and/or sexual exploitation of children. All Member States and Europol shall have access to the information contained in these registers.

Justification

The maintenance of registers will facilitate the identification of repeat offenders. Cooperation between Member States and Europol should translate into full access to the registers of each Member State. The proposal reiterates similar proposals from the Zimmermann report (December 1996) and the Kirhope report (April 2000), which were approved by the European Parliament.

Amendment 31

Article 10, paragraph 2

2. Where more than one Member State establishes jurisdiction for the offenses provided for in this Framework Decision, the interested Member States shall consult each other to coordinate their actions for effective prosecution. Appropriate use shall be made of existing cooperation mechanisms, such as judicial liaison officers and the European Judicial Network.

2. Where more than one Member State establishes jurisdiction for any offense provided for in this Framework Decision, the interested Member States shall consult each other to coordinate their actions for effective prosecution. Appropriate use shall be made of existing cooperation mechanisms, such as judicial liaison officers and the European Judicial Network.

Justification

Formulation.

Amendment 32

Article 10, paragraph 3

3. For the purposes of exchanging information regarding the criminal offenses referred to in Articles 2, 3, and 4, and in accordance with data protection rules, member states designate operational contact points or utilize existing cooperation mechanisms. In particular, member states ensure the full involvement of Europol and Interpol, within the limits of their mandates and within the framework of a complementary system, participate fully and operate with the best available technologies. Member states should also consider the possibility of international cooperation between the police and NGOs, among other things through the establishment and funding of a joint database for monitoring and detecting child pornography on the Internet.

Justification

The dissemination and exchange of information are fundamentally important. Given that individuals who exploit children operate both in member states and in third countries (the extended Union), it is essential to ensure closer cooperation not only with Europol but also with Interpol. To address the structure of organized crime, it is important to utilize the best available technologies. Considering that the most significant—and so far unparalleled—source for the dissemination of child pornography is the Internet, EU member states must focus their actions on this within the framework of combating child pornography.

Amendment 33

Article 10, paragraph 3a (new)

Member States strive to ensure the earliest possible involvement of candidate countries in the action to combat child pornography and the sexual exploitation of children.

Justification

The magnitude of the problem of child sexual exploitation and child pornography should be brought to the attention of candidate countries so that they can take appropriate action.

Amendment 34

Article 10, paragraph 4

4. Each Member State shall inform the General Secretariat of the Council and the Commission of the designated contact point for the exchange of information related to child sexual exploitation and child pornography. The General Secretariat shall inform the other Member States about the designated contact points.

4. Each Member State shall inform the General Secretariat of the Council and the Commission of the designated contact point for the exchange of information related to child sexual exploitation and child pornography. The Member State shall inform the other Member States about the designated contact point or may request theGeneral Secretariat to do so on its behalf.

Justification

Wording and subsidiarity.

Amendment 35

Article 10, paragraph 4a (new)

Member States shall develop common strategies for the proactive combat of child sexual exploitation and child pornography, as well as their dissemination.

Justification

In the context of combating child sexual exploitation and child pornography, prevention measures must also be included.

Amendment 36

Article 10, paragraph 4b (new)

The Commission, in cooperation with the contact points of the Member States and Europol, shall prepare a report every two years assessing the effectiveness of cooperation among the Member States, and must submit this report to the European Parliament. The first report shall be submitted no later than March 31, 2005.

Justification

Cooperation among Member States in this area is crucial, but can we be sure it will be effective? Effectiveness should be assessed by the Commission on a regular basis, and a report should be submitted to the European Parliament to identify any need for changes in the cooperation mechanism. Since Member States are expected to comply with the Framework Decision by December 31, 2002, the first report should be submitted no later than March 31, 2005.

DRAFT LEGISLATIVE RESOLUTION.

Legislative resolution of the European Parliament on the proposal for a Framework Decision of the Council to combat the sexual exploitation of children and child pornography (COM(2000) 854 – C5-0043/2001 – 2001/0025(CNS)).

(Consultation procedure)

The European Parliament,

– having regard to the proposal from the Commission to the Council (COM(2000) 854¹),

– having regard to Articles 29, 31, and 34, paragraph 2 of the EU Treaty,

– having been consulted by the Council to deliver an opinion pursuant to Article 39, paragraph 1 of the EU Treaty (C5-0043/2001),

– having regard to Articles 106 and 67 of its Rules of Procedure,

– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinions of the Committee on Culture, Youth, Education, Media and Sport, as well as the Committee on Women’s Rights and Gender Equality (A5-0206/2001),

1. approves the Commission’s proposal as amended;

2. calls on the Council, should it intend to depart from the text approved by the Parliament, to inform it accordingly;

3. requests to be consulted again if the Council intends to make substantial amendments to the Commission’s proposal;

4. mandates its President to forward the Parliament’s position to the Council and the Commission.

EXPLANATORY REPORT.

1. INTRODUCTION

On February 24, 1997, the Council approved a joint action regarding measures to combat trafficking in human beings and the sexual exploitation of children^[1]. The joint action covers a wide range of issues such as definitions (subject to specific definitions in the legislation of the Member States), jurisdiction, criminal procedures, assistance to victims, and police and judicial cooperation. Through the joint action, Member States committed to revising their existing legislation to ensure that trafficking in human beings and the sexual exploitation of children are considered criminal offenses.

Following the approval of the joint action in 1997, many substantial actions and initiatives have emerged to combat child sexual exploitation and child pornography, both at the European Union level and at local, regional, and international levels more broadly. Child sexual exploitation and child pornography are becoming increasingly concerning issues, and there is an urgent need to address the discrepancies in legislative approaches among Member States through further action.

Additionally, Article 29 of the Amsterdam Treaty explicitly refers to trafficking in human beings. The Vienna Action Plan^[2] and the Tampere European Council also explicitly called for further legislative action against child sexual exploitation. Legislative action is also indicated in the Commission’s Scoreboard^[3]. On May 29, 2000, the Council issued a decision^[4] to combat child pornography on the Internet. However, despite these positive developments, existing discrepancies and delays have hindered the cooperation of judicial (and police) authorities in these areas. To overcome the observed stagnation, the Commission proposes two framework decisions to combat trafficking in human beings and child sexual exploitation, aiming to introduce commonly accepted criminal characteristics (objective and subjective elements of crimes) and related penalties into the criminal legislation of the Member States.

2. EUROPEAN UNION AND CHILDREN’S RIGHTS

In the 21st century, in a European Union that has yet to draft its own Charter of Fundamental Rights, which presents itself as a promoter and defender of the social and economic well-being of its peoples, initiatives must be undertaken that primarily serve to respect the physical and mental integrity of individuals, especially children, who represent the fabric that connects the present with the future of human development. The European Union must take measures that promote human rights and effectively and directly combat the existence of cases and phenomena that crush human existence in its purest and most vulnerable form—children.

The existence of such phenomena is unfortunately not geographically limited. There are numerous examples that confirm this. The international nature of the problem does not allow Member States to procrastinate and turn a blind eye to the tragic dimensions of the issue.

Of particular importance is the fact that the European Union is taking the initiative to combat certain forms of organized crime, given the inability of Member States to tackle it effectively. A serious case of organized crime is the sexual exploitation of children by networks that possess large capital and international access. This initiative to draft a text that will serve as a reference framework for all Member States should not be seen as the culmination of efforts, but rather as a starting point and a springboard for broader collaboration among Member States in the fight against crime.
Alongside the emphasis that must be placed on interstate cooperation, special attention should also be given to the role of non-governmental organizations and their crucial role in a comprehensive and successful approach to tackling the problem. Indeed, promoting legislative measures is not the only solution to the overall effort. It is necessary to emphasize the root causes that contribute to the existence and spread of the phenomenon: poverty, destitution, the lack of child protection structures, the inadequacy of control and prevention mechanisms, the lack of education, the weakening of the social fabric both at the family and interpersonal levels, and primarily the existence of a related supply and demand market that operates within the European Union.

For modern culture, the existence of such phenomena is an affront, where perpetrators—criminal networks as well as users—remain unpunished or evade prosecution, often taking advantage of the inability to cooperate between countries due to bureaucratic processes and procedural obstacles in criminal legislation. It is necessary to avoid tragic cases, such as the M. Dutroux case in Belgium, where the inadequate legislative framework does not even allow for the establishment of the crime and the conduct of the trial, resulting in the case pending for four years. Certainly, the example of Belgium is not unique. In a number of countries, the relevant legislation is either inadequate (Sweden, Denmark, France) or does not exist (Portugal and Greece concerning child pornography).

3. LEGAL BASIS

The present proposal for a framework decision concerns the alignment of legislation and regulatory measures of member states in the field of police and judicial cooperation in criminal matters. It also addresses minimum rules for defining criminal offenses and penalties in the area of organized crime. The legal basis mentioned in the preamble of the proposal is therefore Articles 29, explicitly referencing human trafficking, paragraph 31, subparagraph e), and 34, paragraph 2, subparagraph b) of the Treaty on European Union.

4. EVALUATION OF THE FRAMEWORK DECISION PROPOSAL

Some of the main issues raised in the report, which are deemed necessary to comment on further, concern:

a) Definition of the concept of “child”

The term “child” should be used in its broader interpretation to include any individual under the age of 18, which is also consistent with Article 1 of the United Nations Convention on the Rights of the Child. The issue of consent for engaging in sexual relations, where many Member States set a lower age limit, does not justify defining the concept of “child” with a lower age limit, since this framework decision concerns combating the sexual exploitation of children and child pornography, rather than merely their sexual activity. Equating sexual exploitation with consent to engage in sexual relations fosters dangerous tendencies toward decriminalizing certain instances of the crime and requires careful consideration.

b) Definition of child pornography

The definition of child pornography should take into account all the new developments in technology, as well as the modern methods employed by perpetrators to commit the crime. In order to provide a comprehensive framework for criminal liability regarding the participation and portrayal of children in pornographic material, it is essential to protect children as direct victims, while also prosecuting any representation that creates the impression of child pornography. Such material undermines the seriousness of crimes against children, deceives potential clients regarding their removal from pedophilic tendencies, and consequently encourages the exploitation of children. Effective protection of children from pornography under criminal law can only be secured when this offense encompasses not only the production of pornographic representations involving children but also pornographic depictions of other individuals that give the impression of being children, as well as virtual pornographic material (through image manipulation or computer-generated compositions). Even if it can be proven that the individuals depicted were not children or that the pornographic material was produced through virtual means, this should not be a reason for exemption from criminal liability.

c) Possession of pornographic material

Particular attention should be paid to the issue of possession of pornographic material. The criminalization of possession should be established based on certain conditions to ensure that individuals who inadvertently come across child pornography while browsing the internet or receiving electronic or conventional mail, without their knowledge or through negligence, are not criminalized.

d) Framework of penalties

The criminal framework proposed by the Commission is considered acceptable, given the significant divergence in the legislative frameworks of Member States regarding the application of a uniform penalty framework. The penalties imposed should be commensurate with the seriousness of the crime, but it is important to note that the exclusive imposition of very harsh penalties has not contributed to a reduction in crime in any of the countries where it has been applied.

e) Addressing organized groups

The reference to facilitation, acceptance, and acquisition of profit as a form of criminal behavior, as well as the confiscation of the proceeds of crime as a complementary punitive measure, aims to combat organized groups and networks that benefit from the criminal activities of individuals.

e) Alternative jurisdiction

In a number of Member States (Sweden, the Netherlands, France, Germany), extraterritorial jurisdiction is applied only to certain forms of the crime of sexual exploitation of children. Additionally, in most Member States, criminalization of the crime is required both in the country applying the extraterritoriality and in the country where the crime was committed (double criminality criterion). Finally, the majority of Member States (Belgium, France, Germany, the Netherlands, Sweden) prohibit or impose significant restrictions on the extradition of their nationals. The international nature of the crime requires Member States to revise their procedural provisions regarding the jurisdiction and the issue of extraterritorial jurisdiction (double criminality requirements, prior complaint from the victim, extradition, etc.) to ensure that perpetrators do not evade prosecution. The legal traditions of Member States should not become an obstacle to addressing the tragic dimensions of the problem and the sensitivity with which it must be handled.

h) Victim protection.

Victim compensation should be included in all legal provisions related to crimes against children. The legislation of Member States does not seem to provide clear criteria for how compensation is awarded (e.g., how compensation is determined for minors, in what manner, up to what amount, and for what purpose), and mechanisms for monitoring the implementation of relevant decisions are often lacking. In many cases, there is insufficient information regarding the rights of the child, and it falls upon the child’s advocate to submit a compensation request. An important issue is also the provision of protection for the child victim after the trial, which is left to the discretion of Member States. According to the provisions of the UN Convention on the Rights of the Child, effective procedures and the establishment of social programs are required to provide the necessary psychological and counseling support to the child and to those who have custody of them.

i) Information and training of the involved entities.

Law enforcement authorities should be staffed with specialized personnel capable of handling traumatized children appropriately. In many cases, it has been shown that when the interrogation is conducted by specialized investigative officers, the psychological burden on the victim is lower. In the cases of J. van der S. and L. van E., for instance, the Dutch police provided training to the Philippine police to improve the interrogation of child victims, which yielded very positive results.

Additionally, regarding the staff of diplomatic missions, clear guidelines must be provided for handling such incidents and the legislative provisions that should be applied. Previous incidents show that many embassies offer appropriate support to the victim, both through counseling and assistance with interpretation and transportation back to their country of origin. However, there have also been cases where embassy staff helped the perpetrator evade extraterritorial jurisdiction.

k) Mechanisms for deterrence and prevention

Every legislative framework should always be supported by additional measures and mechanisms for the deterrence and prevention of crimes. Therefore, in order to prevent child sexual exploitation, it is necessary to address the root causes of the problem and develop relevant initiatives.

Particular attention should be given to vulnerable groups of children, such as those living away from home, refugee and asylum-seeking children, children involved in entertainment and performance industries, and children using the Internet, among others. Member States should develop social protection mechanisms for these children while also undertaking awareness campaigns regarding their rights. To this end, the involvement of non-governmental and international organizations working to promote children’s human rights is essential.

Regarding child pornography on the Internet, primary emphasis should be placed on Recommendation No. 98/560/EC of the Council of September 24, 1998 ([5]) for the development of the competitiveness of the European audiovisual services and information services industry by promoting national frameworks to achieve a comparable and effective level of protection for minors and human dignity. The Recommendation stipulates that the Commission examines the measures taken by the Member States, particularly in the area of self-regulation to create a trustworthy environment in combating the distribution of illegal content, concerning human dignity in the audiovisual sector and in online communication services.

In conclusion, we must always keep in mind that the unequal distribution of economic resources on the planet, poverty, and social exclusion foster the creation of organized groups and criminal networks that do not hesitate to commodify even the bodies and souls of children in the name of profit.

ANNEX I: DRAFT RESOLUTION B5-0496/2000

Proposal for a resolution of the European Parliament regarding the protection of children and the fight against pedophilia on the Internet.

The European Parliament,

– having regard to its previous positions on combating pedophilia,

– having regard to the resolutions regarding the rights and protection of the child,

– noting the complaints that are often reported in the press regarding the disappearances or assaults against minors, which sometimes result in the murder of the victims,

– highlighting the unacceptable presence on the Internet of websites promoting photographic material for pedophiles, listings of clubs engaged in this criminal activity, and so-called tourist areas where child trafficking occurs,

Calls for:

1. the establishment of an inquiry committee to investigate and assess what is being done in the European Union countries to tackle this phenomenon that has overwhelmed the Internet;

2. a clear and unequivocal stance from the Union towards the Internet regarding the promotion of pedophilia, aimed at denouncing and obstructing access to websites engaged in this dubious activity;

3. Member States to make available to all governments of the Union the status of individuals convicted of pedophilia, so that Interpol and national police forces can collaborate more effectively for the protection of children and the fight against this abhorrent scourge that is rapidly spreading through the Internet.

ANNEX II: DRAFT RESOLUTION B5-0499/2000

Proposal for a resolution of the European Parliament regarding the obstruction of access to pedophilic content on the Internet.

The European Parliament,

A. having regard to the fact that the Internet hosts pages with illegal content, such as those that disseminate child pornography and provide detailed information and addresses for places where pedophilia occurs,

B. taking into account the resolutions that have already been adopted regarding the protection of minors and the rights of the child,

C. noting that the websites dedicated to these criminal activities are steadily increasing,

D. having regard to the content of these websites, which are considered illegal in many EU countries,

E. having regard to a recent document from the Swiss Federal Police that assigns criminal responsibility to Internet Service Providers and calls on authorities to report any suspicion of crime to the judicial authorities and to inform the judicial authorities of various countries in order to prosecute the crime and its perpetrators,

Calls for,

1. that Internet Service Providers be held responsible for illegal content transmitted over the Internet, and their criminal liability be equated with that of the directors of daily newspapers and magazines who are directly responsible for the content of their publications;

2. that access to websites deemed illegal by the national laws of EU member states be obstructed;

3. that hosting providers ensure the cancellation or obstruction of access to illegal content hosted on one of their servers.

16 May 2001

OPINION of the Committee on Culture, Youth, Education, Media and Sport

to the Committee on Civil Liberties, Justice and Home Affairs.

regarding the proposal for a framework decision of the Council on combating sexual exploitation of children and child pornography

(COM(2000) 854 – C5‑0043/2001 – 2001/0025((CNS))

Draftsperson of the opinion: Elizabeth Lynne

HISTORY OF THE PROCEDURE

At its meeting on March 6, 2001, the Committee on Culture, Youth, Education, Media and Sport appointed Ms. Elizabeth Lynne as the draftsperson of the opinion.

At its meetings on April 10, 2001, April 24/25, 2001, and May 15, 2001, the committee examined the draft opinion.

At the last mentioned meeting, the committee approved the following amendments with 19 votes in favor and 1 abstention.

The following Members were present for the vote: Giuseppe Gargani, Chair; Vasco Graça Moura, Vice-Chair; Elizabeth Lynne, draftsperson of the opinion; Ole Andreasen, Pedro Aparicio Sánchez, Thierry de La Perriere, Geneviève Fraisse, Lissy Gröner, Lucio Manisco, Maria Martens, Doris Pack, Roy Perry, Christa Prets, Marieke Sanders-ten Holte, Kathleen Van Brempt, Luckas Vander Taelen, Eurig Wyn, Sabine Zissener, Janelly Fourtou (substituting for Christine de Veyrac) and Dana Rosemary Scallon (substituting for Theresa Zabell).

SUMMARY OF THE RATIONALE

The Committee’s proposals aim to improve the Joint Action of 1997 on combating the exploitation of children and child pornography. The Joint Action failed to achieve its objectives due to the lack of common definitions and the absence of provisions for enforcing sanctions in the criminal legislation of member states. The goal of the Committee’s proposals is to address this unfortunate situation and ensure that there is no safe haven across the European Union for those who sexually exploit children.

Child pornography and the sexual exploitation of children are abhorrent. The Internet is now the primary medium for the exchange of child pornography. It is global and encompasses every member state of the European Union, thereby creating a completely new set of challenges that law enforcement agencies in each member state have never faced before. Common definitions and penalties need to be adopted in order to combat this crime and encourage cooperation.

It is difficult to define what constitutes child pornography. I am certain that, within the context of the Internet, child pornography cannot simply mean visual representations. Both audio elements and text should also be covered, as chat lines on the Internet are used by pedophiles to target children, as demonstrated, for example, in the Wonderland Internet Paedophile case. The definition of child pornography should not be strictly limited to the sexual behavior of children. It should also include material that depicts children in a way that aims to encourage or incite sexual feelings towards them.

Certain areas of child exploitation and child pornography must be addressed with severe penalties. The maximum possible sentence should be increased to ten years to reflect the exceptional seriousness of these specific instances of exploitation.

In the Committee’s text, the proposed maximum penalty would apply in cases involving the exploitation of children under the age of ten. This age seems rather arbitrary and could lead to the exploitation of children who have just turned ten. It would be more reasonable to raise the age to sixteen. This change would allow the lower penalty to apply to the exploitation of young individuals between the ages of sixteen and eighteen, an age at which they begin to make decisions regarding their participation in sexual activities. They should still be protected from exploitation, and a minimum penalty of four years would serve as a deterrent. The maximum penalty of ten years should also apply to children with physical or intellectual disabilities, as some of them may require special protection, such as those with learning difficulties, where the intellectual age is generally lower than their chronological age.

Member states must also take responsibility and prosecute their nationals who engage in the sexual exploitation of children, even if this exploitation occurs outside the European Union. There should be no exemptions, and member states should not be allowed to refrain from this obligation. Child pornography and child exploitation are international issues, not merely European ones, and should therefore be addressed accordingly.

AMENDMENTS

The Committee on Culture, Youth, Education, Media and Sport calls on the Committee on Civil Liberties, Justice and Home Affairs, which is responsible for the substance, to incorporate the following amendments into its report:

Text proposed by the Committee^[6]

Amendments of the Parliament.

Amendment 1

Article1 (b)

(b) “Child pornography” is understood as pornographic material that visually depicts a child in explicit sexual behavior;

(b) “Child pornography” is understood as audio or visual material or text that depicts children or representations of children for the purpose of sexual, violent, degrading, or humiliating use;

Justification

Child pornography is not limited to visual material but must also include audio material or text aimed at exploiting children. The definition of child pornography should not be restricted to children depicted in explicit sexual behavior. It should also encompass any material used to portray children with the intent of eliciting sexual arousal. Furthermore, the definition should include representations of children to prohibit material produced without the involvement of real children but that seeks to depict children, for example, through the use of digital manipulation.

Amendment 2

Article 2(a)

(a) coercion, exploitation, solicitation, obtaining profit, or otherwise facilitating child prostitution,

(a) coercion, exploitation, solicitation, profit-making, or otherwise facilitating child prostitution. Particular attention should be paid to the role of the media regarding the publication and distribution of child pornography material.

Justification

Media outlets that publish child pornography material should be monitored and punished accordingly.

Amendment 3

Article 3 (a)

Production of child pornography material,

production of real or imagined child pornography material,

Justification

Technological advancements allow for idealized images that are so realistic they create the impression of a real child engaging in overtly sexual behavior. It has also been found that idealized child pornography can “desensitize the viewer to the pathology of sexual abuse or exploitation of children” (U.S. Congress: Child Pornography Prevention Act, 1996).

Amendment 4

Article 3, paragraph 1.

1) Each Member State shall take the necessary measures to ensure that the following intentional behavior is punishable, whether it is facilitated by electronic means or not:	1) Each Member State shall take the necessary measures to ensure that the following intentional behavior is punishable, whether it is facilitated by electronic means or not:
(a) Production of child pornography material;	(a) Production of child pornography material;
(b) Distributing, disseminating or transmitting child pornography, or	(b) *Promote*, distribute, disseminate or transmit child pornography, or
(c) Offer or otherwise make available child pornography, or	(c) Offer or otherwise make available child pornography, or
(d) Acquisition and possession of child pornography.	(d) Acquisition and possession of child pornography.

Justification

The promotion of child pornography, e.g. through a website on the Internet, it should be hellish, even if the person promoting the child pornography does not make it available themselves.

Amendment 5

Article 3 (b)

Distribution, dissemination or transmission of child pornography, or

Distribution, dissemination or transmission of actual or perceived child pornography, or

Justification

Amendment 6

Article 3 (c)

Offering or otherwise making available child pornography, or

Offering or otherwise making available actual or perceived child pornography, or

Justification

Amendment 7

Article 3 (d)

Acquisition and possession of child pornography.

Acquisition and possession of real or imagined child pornography.

Justification

Amendment 8

Article 5, paragraph 1

1. Each Member State shall take the necessary measures so that the offenses referred to in Articles 2, 3 paragraph 1 subparagraphs a) to c), and 4 are punished with effective, proportionate, and deterrent penalties, including imprisonment of a maximum duration of not less than four years, and, in the case of Article 3 paragraph 1 subparagraph d), not less than one year.

1. Each Member State shall take the necessary measures so that the offenses referred to in Articles 2, 3 paragraph 1 subparagraphs a) to c), and 4 are punished with effective, proportionate, and deterrent penalties, including minimum sentences, among which imprisonment of a maximum duration of not less than four years, and, in the case of Article 3 paragraph 1 subparagraph d), not less than one year.

Justification

It is not only important to define maximum penalties, but minimum penalties must also be considered in order for their deterrent effect to be effective.

Amendment 9

Article 5 (2)

(2) Subject to additional definitions in the legislation of the member states, member states shall take the necessary measures to ensure that the offenses referred to in Article 2(a) and those related to Article 4 are punishable by imprisonment for a maximum duration of not less than *eight* years when:	(2) Subject to additional definitions in the legislation of the member states, member states shall take the necessary measures to ensure that the offenses referred to in Article 2(a) and those related to Article 4 are punishable by imprisonment for a maximum duration of not less than *ten* years when:
– involves a child under the age of *ten*, or	– involves a child under the age of *sixteen. Member states are free to set a higher age limit,* or
– involves particular brutality, or
– yields significant profits, or	– yields significant profits, or
– is committed in the context of a criminal organization.	– is committed in the context of a criminal organization, or
	*– involves a child with a disability, particularly a child with learning difficulties.*

Justification

The penalties for the sexual exploitation of children under such aggravating circumstances must be sufficiently severe to reflect the seriousness of the crime and to be deterrent. A maximum penalty of ten years is therefore more appropriate than a corresponding eight-year sentence. This duration also corresponds to the maximum penalty provided in the proposed Council decision regarding human trafficking.

Moreover, it is arbitrary to have a difference in age of 10 years, as this would encourage the increased use of children just a few months older than 10 years. A child is defined as any individual under the age of eighteen, and therefore the passing of this amendment would result in someone exploiting a young person aged between sixteen and eighteen not facing the same strict penalty as would be imposed if that young person were under sixteen. It is also important to include in this proposal children with certain disabilities, as many of them require special protection, such as children with learning difficulties (in the past, this category included mentally disabled children whose mental age is generally lower than their chronological age).

Any form of sexual exploitation of children involves particular cruelty.

Amendment 10

Article 5 (3)

(3) Subject to additional definitions in the legislation of the member states, the member states take the necessary measures to ensure that the offense referred to in Article 2(b) and related to Article 4 is punishable by imprisonment for a maximum duration of not less than *eight* years, when:	(3) Subject to additional definitions in the legislation of the member states, the member states take the necessary measures to ensure that the offense referred to in Article 2(b) and related to Article 4 is punishable by imprisonment for a maximum duration of not less than *ten* years, when:
– involves a child under the age of *ten*, or	– involves a child under the age of *sixteen. Member states are free to set a higher age limit*, or
*– involves particular cruelty.*
	*– involves a child with a disability, particularly a child with learning difficulties.*

Justification

Any form of sexual exploitation of children involves particular cruelty.

Amendment 11

Article 5 (4)

(4) Subject to additional definitions in the legislation of the member states, the member states take the necessary measures to ensure that the offense referred to in Article 3(1)(a) to (c), and related to Article 4, is punishable by imprisonment for a maximum duration of not less than *eight* years, when:	(4) Subject to additional definitions in the legislation of the member states, the member states take the necessary measures to ensure that the offense referred to in Article 3(1)(a) to (c), and related to Article 4, is punishable by imprisonment for a maximum duration of not less than *ten* years, when:
– involves depictions of a child under the age of *ten*, or	– involves depictions of a child under the age of *sixteen. Member states are free to set a higher age limit,* or
– involves depictions of a child exposed to violence or coercion, or	– involves depictions of a child exposed to violence or coercion, or
– yields significant profits, or	– yields significant profits, or
– is committed in the context of a criminal organization.	– is committed in the context of a criminal organization, or
	*– involves a child with a disability, particularly a child with learning difficulties.*

Justification

Amendment 12

Article 7

Each member state takes the necessary measures so that the legal entity which is liable under Article 6 is subject to effective, proportionate, and dissuasive sanctions, including monetary penalties or fines, and may include other sanctions, such as:	Each member state takes the necessary measures so that the legal entity held liable under Article 6 is subject to effective, proportionate, and deterrent sanctions, which include monetary penalties or fines, as well as the confiscation of all proceeds derived from child pornography and the sexual exploitation of children. Member states will allocate these amounts for the protection and rehabilitation of victims. They have the option to include other penalties such as:
(a) Exclusion from public benefits or subsidies, or	(a) Exclusion from public benefits or subsidies, or
(b) Measures of temporary or permanent prohibition of engaging in commercial activities, or	(b) Measures of temporary or permanent prohibition of engaging in commercial activities, or
(c) Imposition of judicial supervision, or	(c) Imposition of judicial supervision, or
(d) Court order for dissolution, or	(d) Court order for dissolution, or
(e) Temporary or permanent closure of the facilities used to commit the offense.	(e) Temporary or permanent closure of the facilities used to commit the offense.

Justification

The principle of confiscating the proceeds from criminal activities is already well established at the European level through the Council of Europe (see the Convention on Money Laundering, Search, and Confiscation of Proceeds from Crime) and through the Joint Action of December 3, 1998, concerning money laundering, the identification, tracing, freezing, confiscation, and forfeiture of instruments and proceeds of crime (EU L 333 of December 9, 1998, p. 1). This also applies to crimes falling within the scope of the Framework Decision. Moreover, it is crucial to redeploy these proceeds for the prevention of such crimes and the care of victims.

Amendment 13

Article 8, paragraph 1

Each member state takes the necessary measures to establish its jurisdiction for the criminal offenses referred to in Articles 2, 3, and 4 when:	Each member state takes the necessary measures to establish its jurisdiction for the criminal offenses referred to in Articles 2, 3, and 4 when:
(a) The offense is committed wholly or partly within the territory of that state, or	(a) The offense is committed wholly or partly within the territory of that state, or
(b) The perpetrator of the offense is a national of that state, or	(b) The perpetrator of the offense is a national of that state, or
(c) The offense is committed for the benefit of a legal entity established in the territory of that member state.	(c) The offense is committed for the benefit of a legal or *natural* person established in the territory of that member state.

Justification

Each member state takes the necessary measures to establish its jurisdiction for the mentioned criminal offenses when the offense is committed for the benefit of all persons established in the territory of that member state, namely legal and natural persons.

Amendment 14

Article 8, paragraph 2

2) A member state may decide that the jurisdiction rules specified in paragraph 1(b) and (c) do not apply or apply only in certain cases or circumstances, provided that the offense is committed outside its territory.

2) For offenses committed in third countries by nationals of the European Union, penalties should be imposed in accordance with the national legislation of the individual member state.

Justification

If the offense of sexual exploitation of children has been committed in a third country by a national of the European Union, then prosecution against that individual must be carried out by the member state of which they are a national. There should be no exceptions allowing such individuals to be exempt from this responsibility.

Amendment 15

Article 8, paragraph 4

Member states inform the General Secretariat of the Council and the Commission when they decide to apply paragraph 2, specifying the particular cases or circumstances to which the decision applies.

Deleted

Justification

If the exception provided in Article 8, paragraph 2, of the Commission’s proposal will no longer be allowed (compare with amendment 8), then this paragraph should be deleted.

Amendment 16

Article 9

Each member state ensures that victims of the offenses covered by this framework decision are provided with adequate legal protection and representation in judicial proceedings. In particular, member states ensure that inquiries and judicial procedures do not cause further harm to the victims and their families.

Justification

Child sexual abuse often occurs within the family or is perpetrated by individuals who have a personal relationship with the children and their families. In such cases, the family is particularly affected by the abuse of the child and must be protected from further harm.

Amendment 17

Article 10, paragraph 2

Where more than one member state establishes jurisdiction for the offenses covered by this framework decision, the concerned member states consult with each other to coordinate their actions for effective prosecution. Appropriate use is made of existing cooperation mechanisms, such as judicial liaison officers and the European Judicial Network.

Where more than one member state establishes jurisdiction for any offense covered by this framework decision, the concerned member states consult with each other to coordinate their actions for effective prosecution. Appropriate use is made of existing cooperation mechanisms, such as judicial liaison officers and the European Judicial Network.

Justification

Formulation.

Amendment 18

Article 10, paragraph 3

Justification

Amendment 19

Article 10, paragraph 4

Each member state informs the General Secretariat of the Council and the Commission about the designated point of contact for the exchange of information related to child sexual exploitation and child pornography. The General Secretariat informs the other member states about the designated points of contact.

Each member state informs the General Secretariat of the Council and the Commission about the designated point of contact for the exchange of information related to child sexual exploitation and child pornography. The member state informs the other member states about the designated point of contact or may request theGeneral Secretariat to do so.

Justification

Wording and subsidiarity.

Amendment 20

Article 10, paragraph 4a (new)

4a) Member states maintain registries of individuals convicted of distributing child pornography and of child sexual abuse. All member states and Europol can access the information contained in these registries.

Justification

These registries will facilitate the identification of repeat offenders. In light of Europol’s mandate and with the aim of international cooperation, all other member states and Europol must have the ability to access these registries.

Amendment 21

Article 10, paragraph 4b (new)

4b) The Commission, in cooperation with the points of contact of the member states and Europol, shall produce a report every two years evaluating the effectiveness of cooperation between the member states and must submit this report to the European Parliament. The first report shall be submitted by March 31, 2005, at the latest.

Justification

Cooperation between member states in this area is essential, but can we be certain that it will be effective? Effectiveness should be evaluated by the Commission on a regular basis, and a report should be submitted to the European Parliament to determine whether there is a need for changes in the cooperation mechanism. Since member states are to comply with the Framework Decision by December 31, 2002, the first report will be submitted by March 31, 2005, at the latest.

28 May 2001

OPINION of the Committee on Women’s Rights and Gender Equality (*)

to the Committee on Civil Liberties, Justice and Home Affairs.

regarding the proposal for a framework decision of the Council on combating sexual exploitation of children and child pornography

(COM(2000) 854 – C5‑0043/2001 – 2001/0025((CNS))

Draftswoman of the opinion: Christa Prets

HISTORY OF THE PROCEDURE

At its meeting on February 27, 2001, the Committee on Women’s Rights and Gender Equality appointed Ms. Christa Prets as the draftswoman of the opinion.

At its meetings on March 19, 2001, April 23, 2001, and May 28, 2001, the committee examined the draft opinion.

At the last meeting mentioned above, the committee unanimously approved the following amendments, with one abstention.

The following members were present during the vote: Maj Britt Theorin (Chair), Marianne Eriksson (Vice-Chair), Jillian Evans (Vice-Chair), Christa Prets (Draftswoman), María Antonia Avilés Perea, Carlo Fatuzzo (substituting Amalia Sartori, in accordance with Article 153, paragraph 2, of the Rules of Procedure), Fiorella Ghilardotti, Lissy Gröner, Mary Honeyball, Anna Karamanu, Róda Kratsa-Tsagaropoulou, Astrid Lulling, Thomas Mann, Karin Scheele, Olle Schmidt (substituting Marieke Sandes-ten Holte), Miet Smet, and Patsy Sörensen.

SUMMARY OF THE RATIONALE

The Committee on Women’s Rights and Gender Equality welcomes the proposal from the European Commission for a framework decision of the Council on combating sexual exploitation of children and child pornography. In the spirit of the 1989 UN Convention on the Rights of the Child, the primary concern will be the best interests of the child. The committee also welcomes the signing of the UN Convention against Transnational Organized Crime by all member states of the European Union.

Sexual exploitation of children is a complex phenomenon. All relevant legislative texts must be based on a functional and broad definition of child sexual exploitation and child pornography, which goes beyond the simple notion of “overtly sexual behavior” and the production of material depicting overtly sexual behavior. In the case of children, to ensure adequate protection, it is vital to address their lack of awareness and consequently their inability to consent. Furthermore, the physical and psychological harm caused by sexual exploitation is different for children than for adults, and thus requires not only special treatment but also specific prevention measures based on a broad definition of child sexual exploitation and child pornography.

The Committee on Women’s Rights and Gender Equality believes that one of the main causes of the problem of child sexual exploitation and child pornography is the social discrimination and poverty of women. It should be noted that one of the scenarios leading to child sexual exploitation is a marriage in which an abuser takes advantage of the socially and economically vulnerable position of a woman with children. Additionally, the adoption of children from third countries is sometimes linked to the sexual exploitation of children and the production of child pornography. In this regard, the committee wishes to emphasize the complex interconnection between child sexual exploitation and the trafficking of women and children.
In this context, the European Union should strive to positively influence third countries affected by child sexual exploitation. Specifically, if the European Union cannot guarantee the protection of victims and their families in third countries, it is vital to have the option of granting special residence permits to victims and their guardians (mothers, fathers) from third countries, so they can come forward and testify. These are minimal standards that should be pursued to ensure that criminal proceedings are consistent and effective.

It is crucial to combat child sexual exploitation and child pornography not only through police actions but also with the involvement of civil society. Relevant programs, such as STOP and DAPHNE, must be recognized as important components in the fight against child sexual exploitation and child pornography. Member states should be encouraged to ensure that financial resources are available for the actions of non-governmental organizations and agencies that provide active support to victims of sexual exploitation, so they can have the opportunity for a new life with dignity.

Additionally, the profits gained by exploiters and other parties involved in child sexual exploitation should be confiscated and collected into a fund for the benefit of crime victims and relevant NGOs working for children’s rights.

The Committee on Women’s Rights and Gender Equality believes that only through the strict punishment of organized crime can the crimes of sexual exploitation of children and child pornography be effectively combated. The circulation and exchange of information is vital. Since child exploiters operate both within member states and in countries outside the (expanded) Union, it is essential to ensure enhanced cooperation not only with the European Union but also with third countries in order to effectively address this issue.

AMENDMENTS

The Committee on Women’s Rights and Gender Equality calls on the Committee on Civil Liberties, Justice and Home Affairs, which is responsible for the substance, to incorporate the following amendments into its report:

Proposed text by the Committee ^[7]

Amendments of the Parliament.

Amendment 1

Recital 6

6. The important work of international organizations should be complemented by the work of the European Union.

6. The important work of international organizations, particularly the United Nations within the framework of the Protocol of the Convention on the Rights of the Child and the future Convention on Cybercrime, should be complemented by the work of the European Union.

Justification

Greater specialization.

Amendment 2

Article 1, paragraph b)

B) “Child pornography” means pornographic material that visually depicts a child in overtly sexual behavior,

b) “Child pornography” means audio, visual or written material depicting children in a sexually offensive or violent context or in a manner that degrades human nature

Justification

Not only visual material but also audio and written pornographic material depicting children should be covered by the legislation. Additionally, the definition of pornography should be expanded to include material that promotes sexual feelings and not just material that depicts apparent sexual behavior.

Amendment 3

Article 2, paragraph a)

(a) coercion, exploitation, solicitation, obtaining profit, or otherwise facilitating child prostitution,

(a) coercion, exploitation, solicitation, profit-making, or otherwise facilitating child prostitution. Special attention will be given to the role of the media regarding the publication and distribution of child pornography.

Justification:

Amendment 4

Article 2, paragraph b) a (new)

b) a) any activity aimed at promoting or encouraging practices of sexual exploitation of children, within or outside the territory of the member state,

Justification

Activities that encourage the practice of sexual exploitation of children, particularly those of businesses involved in sexual tourism, must be monitored and punished.

Amendment 5

Article 3, paragraph 1, introductory sentence

1. Each member state takes the necessary measures to ensure that the following intentional behavior is punishable, whether carried out with the aid of an electronic system or not.

1. Each member state takes the necessary measures to ensure that the following behavior is punishable, whether carried out with the aid of an electronic system or not.

Justification

The reference to “intentional” behavior for the punishment of the said acts may lead to subjective interpretations and could suggest that “unintentional” behavior is possible or acceptable, which is in no way acceptable in this case.

Amendment 6

Article 3, paragraph 2

2. Each member state also takes the necessary measures so that, subject to the definitions provided in this framework decision, the behavior referred to in paragraph 1 is punishable when it involves pornographic material that visually depicts a child in apparent sexual behavior, unless it is proven that the person portraying the child was over 18 years of age at the time of depiction.

2. Each member state also takes the necessary measures so that, subject to the definitions provided in this framework decision, the behavior referred to in paragraph 1 is punishable when it involves audio, visual, or written material that depicts children in a sexually abusive or violent context or in a manner that demeans human dignity, unless it is proven that the person portraying the child was over 18 years of age at the time of depiction.

Justification

The definition of sexual exploitation of children must be as broad as possible in order to ensure appropriate protection for children from sexual abuse.

Amendment 7

Article 4, paragraph 1

1. Each member state takes the necessary measures to ensure that incitement, assistance, complicity, or attempts to commit an offense referred to in Articles 2 and 3 are punishable.

Justification

Amendment 8

Article 5, paragraph 2

2. Subject to additional definitions in the legislation of the member states, member states take the necessary measures to ensure that the offense referred to in Article 2, paragraph a) and the related provisions of Article 4 are punishable by imprisonment for a maximum duration of not less than eight years, when it: – involves a child under the age of 10 years, or

2. Subject to additional definitions in the legislation of the member states, member states take the necessary measures to ensure that the offense referred to in Article 2, paragraph a) and the related provisions of Article 4 are punishable by imprisonment for a maximum duration of not less than ten years, when it: – involves a child under the age of 16 years, or

Justification:

Sanctions for the exploitation of a child’s prostitution under such aggravating circumstances must be sufficiently severe to reflect the seriousness of the crime and be deterrent. Consequently, a maximum prison sentence of at least ten years seems more appropriate than a sentence of eight years. Additionally, the age difference of ten years is arbitrary, as it would encourage the targeted exploitation of children just over the age of ten.

Amendment 9

Article 5, paragraph 2, third indent

– yields significant profits, or

– brings wealth to those involved in its commission, or

Justification

Greater clarity.

Amendment 10

Article 5, paragraph 3, introductory part

3. Subject to additional definitions in the legislation of the member states, member states take the necessary measures to ensure that the offense referred to in Article 2, paragraph b) and the related provisions of Article 4 are punishable by imprisonment for a maximum duration of not less than *eight* years, when:	3. Subject to additional definitions in the legislation of the member states, member states take the necessary measures to ensure that the offense referred to in Article 2, paragraph b) and the related provisions of Article 4 are punishable by imprisonment for a maximum duration of not less than *ten* years, when:
– involves a child under the age of 10 years, or	– involves a child under the age of 16 years, or

Justification

Amendment 11

Article 5, paragraph 4

4. Subject to additional definitions in the legislation of the member states, member states take the necessary measures to ensure that the offense referred to in Article 3, paragraph 1, indent a) to c), and the related provisions of Article 4 are punishable by imprisonment for a maximum duration of not less than eight years, when: – involves depictions of a child under the age of ten years, or

4. Subject to additional definitions in the legislation of the member states, member states take the necessary measures to ensure that the offense referred to in Article 3, paragraph 1, indent a) to c), and the related provisions of Article 4 are punishable by imprisonment for a maximum duration of not less than ten years, when: – involves depictions of a child under the age of sixteen years, or

Justification:

Amendment 12

Article 5, paragraph 4, third indent

– yields significant profits, or

– brings wealth to those involved in its commission, or

Justification

Greater clarity.

Amendment 13

Article 7, introductory part

Justification

Amendment 14

Article 9

Justification

Amendment 15

Article 10, paragraph 3

Justification

Amendment 16

Article 10, paragraph 4a (new)

4a) Member states formulate common strategies for the proactive combating of child sexual exploitation and child pornography, as well as its dissemination.

Justification

In the context of combating child sexual exploitation and child pornography, prevention measures must also be included.

¹ ΕΕ C 62 Ε of 27.2.2001, p. 327.

^[1] ΕΕ L 063, 4.3.1997

^[2] ΕΕ C 19, 23.1.1999

^[3] COM (2000) 167 final, 24.3.2000

^[4] ΕΕ L 138/1, 9.6.2000

^[5] EE L 270, 7.10.1998

^[6] ΕΕ C 062 of 27.02.2001.

^[7] ΕΕ C 62Ε of 27.02.01, p. 327.