Explanatory Memorandum to COM(2010)94 - Combating the sexual abuse, sexual exploitation of children and child pornography - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)94 - Combating the sexual abuse, sexual exploitation of children and child pornography. |
|---|---|
| source | COM(2010)94  |
| date | 29-03-2010 |
- Grounds for and objectives of the proposal
Sexual abuse and sexual exploitation of children are particularly serious forms of crime as they are directed against children, who have the right to special protection and care. They produce long-term physical, psychological and social harm to victims and its persistence undermines the core values of a modern society relating to the special protection of children and trust in relevant State institutions. Despite a lack of accurate and reliable statistics, studies suggest that a significant minority of children in Europe may be sexually assaulted during their childhood, and research also suggests that this phenomenon is not decreasing over time, rather that certain forms of sexual violence are on the rise.
The general policy objective of the Union in this field, under Article 67 of the Treaty on the Functioning of the European Union, is to ensure a high level of security through measures to prevent and combat crime, which includes child sexual abuse and child sexual exploitation. In accordance with Article 83 of the Treaty on the Functioning of the European Union, this should be done primarily by establishing minimum rules concerning the definition of criminal offences and sanctions in the area of sexual exploitation of children. Specific objectives would be to effectively prosecute the crime; to protect victims’ rights; and to prevent child sexual exploitation and abuse.
- General context
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. Beyond difficulties of prosecution, organised crime can make considerable profits with little risk.
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. On a global scale, the main international standard is the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography of 2000. However, not all Member States have yet acceded to this Convention.
- Existing provisions in the area of the proposal
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.
Other EU initiatives in force or on the way partially address some problems which also affect child sexual offences. They include Council Decision 2000/375/JHA of 29 May 2000 to combat child pornography on the internet, Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems, Decision No 854/2005/EC of the European Parliament and of the Council of 11 May 2005 establishing a multiannual Community Programme on promoting safer use of the internet and new online technologies, and Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition of judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions.
- Consistency with the other policies and objectives of the Union
The objectives are fully consistent with the EU policy of promotion, protection and fulfilment of children’s rights in the internal and external policies of the EU. The EU explicitly recognised protection of children’s rights in the Charter of Fundamental Rights of the European Union, specifically in Article 24. Furthermore, in its communication Towards an EU Strategy on the Rights of the Child , the Commission set itself the objective of maximising the use of its existing policies and instruments partly with a view to protecting children from violence and sexual exploitation inside and outside the EU. The objectives are also consistent with the Safer Internet Programme set up to promote safer use of the internet and new online technologies, particularly for children, and to fight against illegal content. The Safer Internet Programme contributes to preventing child sexual abuse through an array of measures including the empowerment and protection of minors, awareness raising and education, self-regulation and safety tools.
They are fully consistent with the Commission proposal for a Directive on preventing and combating trafficking in human beings and protecting victims.
The objectives are also consistent with the new EU Youth Strategy (Council Resolution 27 November 2009), which targets children and young people within the age range 13-20, and anchors European youth policy cooperation firmly in the international system of human rights. The EU Youth Strategy highlights that the life and future prospects of young people are significantly determined by the opportunities, support and protection received during childhood and calls upon stakeholders at local level to detect an help young people at risk and to signpost them to other services where needed and facilitate young people's access to health facilities.
This proposal was subject to in-depth scrutiny to ensure that its provisions were fully compatible with fundamental rights and notably human dignity, the prohibition of torture and inhuman or degrading treatment or punishment, the rights of the child, the right to liberty and security, freedom of expression and information, protection of personal data, the right to an effective remedy and to a fair trial and the principles of legality and proportionality of criminal offences and penalties.
Particular attention was paid to Article 24 of the Charter of Fundamental Rights of the European Union, which lays down a positive obligation to act with the aim of ensuring the necessary protection of children. It states that children have the right to such protection and care as is necessary for their wellbeing. In addition, it requires that in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration, which is also enshrined in the UN Convention on the Rights of the Child.
The provisions on criminalising new forms of abuse using the Internet, recognising special investigative techniques, prohibition from certain activities and the exchange of information to ensure implementation throughout the EU were specially scrutinised with regard to the right to respect for private and family life and the protection of personal data (Article 8 ECHR, Articles 7 and 8 of the Charter of Fundamental Rights of the European Union). Provisions to increase law enforcement against publishing and disseminating child abuse material, advertising child pornography or encouraging child sexual abuse, and on mechanisms to block access to internet pages containing child pornography were checked in particular with regard to freedom of expression (Article 10 ECHR, Article 11 of the Charter of Fundamental Rights of the European Union).
Where necessary, appropriate use may be made of funding possibilities available at the level of the European Union to support Member States' efforts to comply with the requirements of this directive.
- Consultation of interested parties
Consultation methods, main sectors targeted and general profile of respondents
A broad range of experts in the field were consulted in three different meetings dealing both with child sexual abuse, sexual exploitation, and trafficking in human beings. This included, in particular, Representatives of Member States’ Governments, Members of the Commission’s Group of Experts on Trafficking in Human Beings, international organisations, notably the Council of Europe and UNICEF, NGOs, academia and research centres, and other public institutions. A number of experts and organisations have subsequently sent in submissions and provided information.
Discussions in the Council on the Commission proposal for a Framework Decision on this subject have provided information on Member States' legislation and current practice. This has to a large extent confirmed the need for a new EU framework approximating national legislation.
Key messages resulting from the consultation are:
- the need to incorporate improvements of the COE Convention;
- the need to criminalise forms of abuse not included in the current FD, in particular new forms of offences using IT;
- the need to eliminate obstacles to investigation and prosecution in cross-border cases;
- the need to ensure comprehensive protection of victims, in particular in investigation and criminal proceedings;
- the need to prevent offences through intervention programmes and treatment;
- the need to ensure that convictions and security measures that are imposed on dangerous offenders in one country are effective in all Member States.
The input received during the consultation has been taken into account in the Impact Assessment. Some of the suggestions made by different stakeholders in the consultation process have not been included in the proposal, for different reasons explained in the Impact Assessment.
- Collection and use of expertise
There was no need for external expertise.
- Impact assessment SEC(2009) 355 and Impact assessment summary SEC(2009) 356
Various policy options have been examined in the context of the previous proposal for a Framework Decision as a means to achieve the objective.
- Policy option i: No new EU action
The EU would take no new action (legislation, non-policy instruments, financial support) to combat child sexual abuse and exploitation, while Member States could continue the process of signature and ratification of the COE Convention.
- Policy option i: Complement existing legislation with non-legislative measures
Existing EU legislation, in particular 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.
- Policy option i: 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.
- Policy option i: New comprehensive legislation to enhance prosecution of offenders, protection of victims and prevention of offences (as in option 3) plus non-legislative measures (as in option 2)
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.
The Commission carried out an impact assessment to accompany the previous proposal for a Framework Decision of 25 March 2009 on combating the sexual abuse, sexual exploitation of children and child pornography, which is valid mutatis mutandis for the present proposal for a Directive. The report on the impact assessment is accessible at:
ec.europa.eu/governance/impact/ia_carried_out
Contents
- Summary of the proposed action
The Directive will both repeal and incorporate Framework Decision 2004/68/JHA to include the following new elements:
- On substantive criminal law in general
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.
- On 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.
- On criminal investigation and initiation of criminal proceedings
A number of provisions would be introduced to assist with investigating offences and bringing charges.
- On 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.
- On protection of victims
New provisions dealing with protection of victims (in a broad sense) 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.
- On 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.
As a result, the proposal would also provide added value to the standard of protection set by the COE Convention in a number of ways. From the point of view of substance the proposal includes elements not contained in the COE Convention, such as ensuring implementation across the EU of prohibitions from activities with children imposed on offenders, blocking access to child pornography on the internet, criminalising coercing a child into sexual relations with a third party, child sexual abuse through pornographic performances online, and 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. From a formal point of view, 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.
- Legal basis
Articles 82 i and 83 i of the Treaty on the Functioning of the European Union
- Subsidiarity principle
The subsidiarity principle applies to the actions of the European Union.
The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reasons.
Child sexual exploitation and sexual abuse has a considerable cross-border dimension, which is most evident in child pornography and child sex tourism, but also appears in the need to ensure that children in all Member States should be protected from offenders from all Member States, who can travel easily. This requires EU action, notably to follow up on Council Framework Decision 2004/68/JHA and Council Decision 2000/375/JHA,[1] as the objective of effectively protecting children cannot be sufficiently achieved by Member States, either at central level or at regional or local level.
Action by the European Union can better achieve the objectives of the proposal for the following reasons.
The proposal will further approximate the substantive criminal law of Member States and rules on procedure, which will have positive impact on the fight against these crimes. Firstly, it is a way of avoiding a criminal preference for committing acts in Member States which have less severe rules; secondly, shared definitions make it possible to promote the exchange of useful common data and experience and to promote comparability of data; and thirdly, international cooperation is made easier. The proposal would also improve the protection of child victims. This is a humanitarian imperative and also a condition for victims to provide evidence necessary to prosecute offences. The effectiveness of prevention measures across the EU will be enhanced as well.
The proposal therefore complies with the subsidiarity principle.
- Proportionality principle
The proposal complies with the proportionality principle for the following reason(s).
This Directive confines itself to the minimum required in order to achieve those objectives at European level and does not go beyond what is necessary for that purpose, taking into account the need for accuracy of criminal legislation.
- Choice of instruments
Proposed instruments: Directive.
In the fight against sexual exploitation of children the approximation of the criminal laws and regulations of the Member States is necessary to improve cooperation in criminal matters. To this end the TFEU specifically envisages the adoption of directives only.
The proposal has no implication for the EU budget.
- Repeal of existing legislation
The adoption of the proposal will lead to the repeal of existing legislation.
- 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.