COMMISSION
OF THE EUROPEAN COMMUNITIES
Brussels,
21.12.2000
COM(2000)
854 final
COMMUNICATION
FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT
Combating
trafficking in human beings and combating the sexual exploitation of
children
and child pornography
Proposal
for a
COUNCIL
FRAMEWORK DECISION on combating trafficking in human beings
Proposal
for a
COUNCIL
FRAMEWORK DECISION on combating the sexual exploitation of children and child
pornography
(presented
by the Commission)
COMMUNICATION
FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT
Combating
trafficking in human beings and combating the sexual exploitation of
children
and child pornography;
two
proposals for framework decisions
1.
INTRODUCTION
Trafficking
in human beings and the sexual exploitation of children, including child
pornography are abhorrent and increasingly worrying phenomena. Trafficking in
human beings is not only an episodic phenomenon, affecting a few individuals,
but of structural nature with extensive implications on the social, economic
and organisational fabric of our societies. The phenomenon is facilitated by
globalisation and by modern technologies.
Globally,
tens of thousands of human beings, especially women and children, are
trafficked for exploitative purposes each year. Numerous cases of sexual
exploitation of children and child pornography are reported. The Member States
of the European Union and the candidate countries are much affected by these
scourges to society.
A
variety of measures, including emphatic legal protection to all individuals,
and preventive measures, as well as measures to ensure adequate protection of
and assistance to the victims, are required. Measures should address the whole
trafficking chain of recruiters, transporters, exploiters and clients. The
underlying root causes of trafficking in human beings, such as poverty,
including feminisation of poverty, discrimination against women, unemployment
and lack of education and access to resources must be addressed in order to
establish and maintain a comprehensive policy. In particular, women and
children are vulnerable to become victims of trafficking due to inter alia lack
of education and professional opportunities. A comprehensive policy therefore
needs to include a clear gender perspective.
Against
this background, the European Union has been actively engaged since 1996 in
developing a comprehensive and multidisciplinary approach towards the
prevention of and the fight against trafficking in human beings and the sexual
exploitation of children. It should for instance be recalled that the Council,
with the active involvement of the Commission and the European Parliament, has
set up the STOP 1 incentive and exchange programme and the DAPHNE
Programme 2 to combat violence against women and children.
The
STOP Programme has in particular developed a multidisciplinary approach in
which all relevant actors are involved; in addition to the emphasis on law
enforcement co-operation, special importance is attached to non-governmental
organisations and their crucial role in a comprehensive and successful approach
against trafficking and the sexual exploitation of children. The importance of
non-governmental organisations is also underlined by the DAPHNE Programme which
is specifically designed to support an approach focusing on the
non-governmental organisations and their work to protect and assist women and
children who are the victims of violence.
1 OJ L 322, 12.12.1996
2 Decision N° 293/2000/EC of the European Parliament and of the
Council of 24.1.2000; OJ L34/1,
9.2.2000
Furthermore,
in February 1997, the Council adopted a Joint Action 3 concerning action to combat trafficking in
human beings and the sexual exploitation of children in which Member States
agreed to review their relevant criminal law so as to ensure the
criminalisation of certain behaviours and to encourage judicial co-operation.
The European Union´s initiatives have also contributed substantially to
the raising awareness of these phenomena and to action at world wide level as
illustrated by the recent, successful, conclusion of the United
Nations-protocol on trafficking in human beings supplementing the Convention on
Transnational Organised Crime.
At
European level further impetus was given by Article 29 of the Amsterdam Treaty,
which contains an explicit reference to trafficking in human beings and
offences against children.
The
“Vienna Action Plan”4 on the
implementation of the Treaty´s provisions on an area of freedom, security
and justice, consequently also addresses these matters. Furthermore, concrete
initiatives in these fields were requested in the conclusions of the Tampere
European Council on 15-16 October 1999 (points 23 and 48). The European Council
expressed, in particular, its determination on two aspects. First by combating
those who engage in trafficking in human beings and economic exploitation of
migrants.
The
Council was invited to adopt by the end of 2000 legislation foreseeing severe
sanctions against these serious crimes. Secondly by considering that efforts to
agree on common definitions, incriminations and sanctions should, in the first
instance, be focused on, inter alia, trafficking in human beings, sexual
exploitation of children and high tech crime. Hereafter, the Santa Maria da
Feira European Council on 19-20 June 2000 called on the incoming French
Presidency and the Commission to take forward urgently the Tampere conclusions
in this area.
The
Commission, for its part, indicated in the Scoreboard 5 to review progress on the creation of an area
of freedom, security and justice in the European Union, its intention to table
proposals by the end of 2000, with a view to the adoption of measures
establishing, in particular, common rules relating to the constituent elements
of criminal law linked with trafficking in human beings and the sexual
exploitation of children, with particular reference to child pornography on the
Internet. Such action was also called for by the European Parliament in several
resolutions 6 .
Apart
from legislative initiatives, the Commission intends to continue a range of
actions in the fight against trafficking in human beings and the sexual
exploitation of children. The STOP and DAPHNE programmes are central to this
policy and, the Commission has recently put forward a proposal for a Council
Decision to extend the STOP Programme for a period of two years. This would
allow for focused effort involving the candidate countries as well as
co-operation with third countries and international organisations to prevent
and combat trafficking in human beings and the sexual exploitation of children.
In line with previous policy papers 7 ,
budget lines targeting the candidate countries and third countries will also be
used to support actions such as information campaigns to prevent trafficking in
human beings and to address the underlying root causes of trafficking. One
concrete example of this is the European initiative for Democracy and Human
Rights which provides support to non-3
OJ L 063, 4.3.1997
4 OJ C 19, 23.1.1999
5 COM (2000) 167 final, 24.3.2000
6 E.g. Resolution of 19 May 2000 on the Communication « For
further actions in the fight against
trafficking in women » (A5-0127/2000) and
Legislative Resolution of 11 April 2000 on the initiative of
the Republic of Austria with a view to the adoption of
a Council Decision to combat child pornography
on the Internet (A5-0090/2000)
7 COM (96) 567 final of 20.11.1996 and COM (98) 726 final of
9.12.1998
governmental
and international organisations working to promote the human rights of women,
children and other vulnerable groups in third countries. In the field of child
pornography the Action Plan against illegal and harmful content on the Internet
8 will be applied.
In
accordance with the Council Recommendation 98/560/EC of 24 September 1998 9 on the development of the competitiveness of
the European audio-visual and information services industry by promoting
national frameworks aimed at achieving a comparable and effective level of
protection of minors and human dignity, the Commission also examines the
measures taken by the Member States, in particular in the area of self
regulation to promote the establishment of an environment of confidence in the
fight against the distribution of illegal contents as regards human dignity in
audio-visual and on-line services.
2.
THE PROPOSALS BY THE COMMISSION
Since
the issues of trafficking in human beings and the sexual exploitation of
children have been high on the political agenda of the European union, progress
has been noted in Member States´ policies and legislation. However,
despite these positive developments the existing discrepancies and divergences
make it difficult, in practice, to develop an efficient judicial and law
enforcement co-operation in these areas. In preparing the present proposals,
the Commission has considered that the main reason why the implementation of
the Joint Action of February 1997 failed to achieve its objectives is to be
found in the absence of commonly
adopted
definitions, incriminations and sanctions in the Member States´ penal
legislation.
The
aim of the Commission´s present proposals on combating trafficking in
human beings and the sexual exploitation of children is to remedy this
unsatisfactory situation.
As
far as the proposal for a Framework Decision on combating trafficking in human
beings is concerned, the Commission wishes to underline that the objective is
to cover not only offences concerning trafficking in human beings for the
purpose of sexual exploitation, but also offences concerning trafficking in
human beings for the purpose of labour exploitation.
Since
it is crucial to address different forms of criminal movements of people that
are operated by international criminal organisations, it should also be
underlined that the Commission´s proposal on trafficking in human beings
for exploitative purposes is to be seen as to complement the important
initiatives presented by the French Presidency 10 on
facilitation of illegal entry, stay and residence.
As
regards the Commission´s present proposal for a Framework Decision on
combating sexual exploitation of children and child pornography, the objective
is, in particular, to improve the provisions of the Joint Action of February
1997 by ensuring that there are no safe havens for child sex offenders
suspected of having committed an offence in a country other than their own.
Furthermore,
the proposal is intended to address, as a matter of urgency, the worrying issue
of child pornography on the Internet so as to illustrate the European
Union´s determination to implement common penal provisions in this field
and contribute to provide Internet-users with a safe and crimeless environment.
Finally,
the Commission wishes to highlight the fact that, where appropriate, its
proposals have taken onboard the work reflected at international level by the
United Nations-protocol
8 OJ L 33 6.2.1999
9 OJ L 270, 7.10.1998
10 OJ C 253, 4.9.2000, proposals not yet adopted
on
trafficking in human beings and by the future Cyber Crime Convention developed
within the Council of Europe. The Commission considers that it is important
that the European Union should, through swift adoption of the present proposals
by the Council, demonstrate clearly its will to take on the fight against these
unacceptable violations of human rights and human dignity by providing a common
approach on criminal law and a further developed law enforcement and judicial
co-operation.
Attached
to this Communication are:
·
one proposal for a Framework
Decision on combating trafficking in human beings,
·
one proposal for a Framework
Decision on combating sexual exploitation of children and child pornography.
Proposal
for a
COUNCIL
FRAMEWORK DECISION
on
combating trafficking in human beings
EXPLANATORY
MEMORANDUM
1.
INTRODUCTION
On
24 February 1997 the Council adopted a Joint Action concerning action to combat
trafficking in human beings and the sexual exploitation of children 1 . The Joint Action covers a wide range of
topics such as definitions (without prejudice to more specific definitions in
the Member States´ legislation), jurisdiction, criminal procedure,
assistance to victims and police and judicial co-operation. Through the Joint
Action, the Member States undertook to review their existing laws with a view
to providing that trafficking in human beings and the sexual exploitation of
children were criminal offences.
Since
the adoption of the Joint Action in 1997, actions and initiatives against
trafficking in human beings have developed considerably in number and in substance
at the level of the European Union as well as at local, regional and
international level in a wider context.
That
said, the continuing divergence of legal approaches in the Member States
clearly demonstrates the need for further action against the menace of
trafficking.
Furthermore,
Article 29 of the Amsterdam Treaty provides an explicit reference to
trafficking in human beings. The Vienna Action Plan 2 and the Tampere European Council made a clear
call for further legislative action against trafficking. Legislative action is
also indicated in the Commission´s Scoreboard 3 . At the wider international level, one of the
most significant developments has been the United Nations Convention on
Transnational Organised Crime with its two supplementing protocols targeting
smuggling of migrants and trafficking in
persons.
The Commission has participated actively in the elaboration of these
instruments and important elements of the protocol on trafficking are reflected
in this proposal, albeit taken further.
The
specific character of an area of freedom, security and justice to be created
within the European Union should enable the Member States to develop a
Framework Decision in which certain aspects of criminal law and judicial
co-operation are taken further than has been possible through instruments
available before the entry into force of the Amsterdam Treaty and instruments
developed at a wider international level. A Framework Decision should, for
instance, address more precisely, issues such as criminalisation, penalties and
other sanctions, aggravating circumstances, jurisdiction and extradition.
In
conclusion, the Commission believes that a further response to the issue of
trafficking is required at the level of the European Union. Use of a Framework
Decision, an instrument introduced by the Amsterdam Treaty, will reinforce a
common approach of the European Union in this area and fill gaps in existing
legislation. The need for a clear common approach on trafficking should also be
viewed against the background of the future enlargement of the European Union.
The Commission has therefore, as announced in the Scoreboard, decided to put
forward a proposal for a Framework Decision on the approximation of the
criminal laws of the Member States, including penalties, concerning trafficking
in human beings.
1 OJ L 063, 4.3.1997
2 OJ C 19, 23.1.1999
3 COM (2000) 167 final, 24.3.2000
The
proposal also includes provisions on horizontal judicial issues such as
jurisdiction and co-operation between Member States. The proposal covers
trafficking in human beings for the purposes of labour and sexual exploitation,
not including sexual exploitation of children and child pornography which will
be covered by a separate proposal. The separation into two Framework Decisions
will allow the Council to focus on trafficking in human beings for the purposes
of labour as well as sexual exploitation.
2.
TRAFFICKING AND SMUGGLING
The
Commission is of the view that the division into one United Nations-protocol on
trafficking in human beings and one United Nations-protocol on smuggling of
migrants highlights the complexity of different forms of criminal movements of
people that are operated by international criminal organisations. While
smuggling of migrants could be said to constitute a crime against the state and
often involves a mutual interest between the smuggler and the smuggled,
trafficking in human beings constitute a crime against a person and involves an
exploitative purpose.
The
Commission is therefore of the view that the French initiatives 4 on facilitation of unauthorised entry, movement
and residence are related to smuggling of migrants. This proposal, on the other
hand, relates to trafficking in persons with its characteristics. The
Commission´s conclusion is that the French initiative on facilitation and
this proposal on trafficking complement each other and that they both
contribute to a European-wide fight against severe types of criminal activities
by international criminal organisations.
3.
LEGAL BASIS
This
proposal for a Framework Decision concerns approximation of the laws and
regulations of the Member States in the area of police and judicial
co-operation in criminal matters. It also to a substantial part concerns
“minimum rules relating to the constituent elements of criminal acts and
to penalties in the field of organised crime”. The legal basis indicated
in the preamble of the proposal is therefore Articles 29 with an explicit
reference to trafficking in human beings, 31(e) and 34(2)(b) of the Treaty on
European Union. The proposal will not entail financial implications for the
budget of the European Communities.
4.
THE FRAMEWORK DECISION: ARTICLES
Article
1 (Trafficking in human beings for the purpose of labour exploitation)
Article
1 puts on the Member States an obligation to ensure that trafficking in human
beings for the purpose of labour exploitation is punishable.
Trafficking
is defined in the Article to include the recruitment, transportation, or
transfer of a person, including harbouring and subsequent reception of and the
exchange of control over him or her for the purpose of exploiting him or her in
the production of goods or provision of services. This definition reflects the
key elements of one of the parts constituting the definition of trafficking in
the United Nations-protocol on trafficking in human beings.
4 OJ C 253, 4.9.2000, proposals not yet adopted
Labour
exploitation is defined in the Article to be an infringement of labour
standards governing working conditions, salaries and health and safety. The
reference to labour market regulations is in no way intended to affect the
labour market regulations of the Member States. It is intended to establish a
benchmark on the basis of existing regulations for what is an acceptable
standard on the labour market. It should be underlined that this definition
must be viewed upon in conjunction with the definition of trafficking and
qualifying elements such as coercion. In addition the offence includes a
requirement that the fundamental rights of the person have been and continue to
be suppressed, for instance the rights of the Charter of Fundamental Rights
proclaimed by the Nice European Council. This requirement includes also the
perspective of the victim´s fundamental rights and not only the conduct
of the perpetrator as in the qualifying elements mentioned below. It also
expresses a requirement for a continuing suppression of the fundamental rights
of a person.
As
regards the elements qualifying trafficking a person for the purpose of labour
exploitation as a criminal offence, points (a) and (b) corresponds to the
UN-protocol on trafficking. Points (c) and (d), which partly corresponds to the
United Nations-protocol, cover forms of taking advantage or exercising pressure
when a person is trafficked.
The
objective is to ensure a comprehensive coverage of criminal conduct. This
includes practices such as debt bondage in which a person has no choice but to
submit to the pressure. It also includes the abuse of the vulnerability of
persons, for instance of persons being mentally or physically disabled or of
persons illegally remaining on the territory of a Member State who are often in
a situation in which they have no choice or perceive to have no choice, but to
submit to the exploitation.
These
latter elements ensures also that the offence take the specific situation of
the victim into account and not only the conduct performed by the trafficker.
The
criminal offence described does not include an explicit requirement for the
victim to cross a border. The reasoning here is following the Europol
Convention and the United Nations-protocol on trafficking, i.e. the context of
trafficking in human beings refers generally to international organised crime,
but it is not necessary for the victim itself to cross a border. Moreover, the
key elements of the offence of trafficking should focus on the exploitative
purpose, rather than on the “movement” across a border. If the
requirement of a cross-border element would be maintained, there would be a
paradox in that a European citizen forced into prostitution and trafficked
within its own country, would be less protected than citizens from third
countries would. The approach not to include a cross-border
requirement
also means that the proposal cover “re-trafficking” within the
country of destination, which in many cases form an integral part of the
trafficking chain/operation.
Article
2 (Trafficking in human beings for the purpose of sexual exploitation)
Article
2 puts on the Member States an obligation to ensure that trafficking in human
beings for the purpose of sexual exploitation is punishable. The Article
corresponds to the structure and content of Article 1.
Sexual
exploitation includes the purposes to exploit a person in prostitution, in
pornographic performances or in the production of pornographic material.
Article
3 (Instigation, aiding, abetting and attempt)
Article
3 puts an obligation on Member States to ensure that instigation of, aiding,
abetting and attempt to commit trafficking for the purpose of labour
exploitation and trafficking for the purpose of sexual exploitation is
punishable.
10
Article
4 (Penalties and aggravating circumstances)
Article
4 concerns penalties and aggravated circumstances. Paragraph 1 indicates that
the offences referred to in Articles 1, 2, and 3 shall be punishable by
effective, proportionate and dissuasive penalties, including by terms of
imprisonment with a maximum penalty that is not less than six years. These
penalties are sufficient to include trafficking in human beings within the scope
of other instruments already adopted for the purposes of enhancing police and
judicial co-operation in the European Union against organised crime such as the
98/699/JHA Joint Action 5
on money laundering, the
identification, tracing, freezing, seizing and confiscation of the
instrumentalities and the proceeds from crime and the 98/733/JHA Joint Action 6 on making it a criminal offence to participate
in a criminal organisation.
As
trafficking in human beings involves very serious criminal conduct, paragraph 2
sets out that Member States shall ensure that when aggravating circumstances
apply the offences shall be punishable by terms of imprisonment with a maximum
penalty that is not less than ten years. The Commission´s proposal to
have ten years as a minimum maximum penalty when aggravating circumstances are
involved builds on the view that possible penalties for trafficking should
reflect the seriousness of the crime and have a strong deterrent effect.
Three
circumstances that typically should qualify the trafficking offence as
aggravated are listed. These circumstances represent a minimum list, but are
without prejudice to additional definitions in the legislation of the Member
States. A further explanation of what is meant by these circumstances for the purposes
of this Framework Decision is:
–
«generates substantial proceeds» could, where applicable, be
construed in analogy with aggravated «pimping» offences and should
at least include the enrichment of the perpetrator of the criminal activities;
–
«is committed within the framework of a criminal organisation»
should be construed in accordance with Article 1 of the 98/733/JHA Joint Action
on making it a criminal offence to participate in a criminal organisation in
the Member States of the European Union 7 ;
–
«involves particular ruthlessness» is aimed at targeting the level
of force or pressure exercised by the trafficker and the level of disregard of
the health and integrity of the victim, physical as well as mental; the more
serious force, pressure or disregard, the more severe the offence.
Article
5 (Liability of legal persons)
It
is necessary also to cover the situation in which legal persons are involved in
the trafficking. Article 5 therefore provides provisions for holding a legal
person liable for the offences envisaged by Articles 1, 2, and 3, committed for
their benefit by any person, acting either individually or as a part of the
organ of the legal person. The term liability should be construed so as to
include either criminal or civil liability (see also Article 6 on sanctions).
5 OJ L 333/1, 9.12.1998
6 OJ L 351/1, 29.12.1998
7 OJ L 351/1 29.12.1998
In
addition, paragraph 2 provides that a legal person can also be held liable when
the lack of supervision or control by a person in a position to exercise
control, has rendered possible the commission of the offence for its benefit.
Paragraph 3 indicates that legal proceedings against a legal person do not
preclude parallel legal proceedings against a natural person and paragraph 4
definesa legal person for the purpose of this Framework Decision.
Article
6 (Sanctions on legal persons)
Article
6 sets out a requirement for sanctions on legal persons. It requires effective,
proportionate and dissuasive sanctions, where the minimum obligation is to
impose criminal or non-criminal fines. Other sanctions that typically could
apply to legal persons are also indicated.
Article
7 (Jurisdiction and prosecution)
The
international nature of the trafficking offence implies that an efficient legal
response requires procedural provisions on jurisdiction and on extradition
which are as clear and as far reaching as national legal systems will allow in
order to guard against persons evading prosecution.
Paragraph
1 establishes a series of criteria conferring jurisdiction on national
enforcement and judicial authorities to prosecute and examine cases involving
the offences referred to in this Framework Decision. A Member State shall
establish its jurisdiction in three situations:
(a)
where the offence is committed in whole or in part on its territory,
irrespective of the status or the nationality of the person involved
(territoriality principle), or
(b)
where the offender is a national (active personality principle). The criterion
of the status as a national means that jurisdiction can be established
regardless of the lex locus delicti. It is up to Member States to prosecute for
offences committed abroad. This is particularly important for Member States
which do not extradite their own nationals, or (c) where the offence is
committed for the benefit of a legal person established in the territory of
that Member State.
However,
as not all Member States’ legal traditions recognise extraterritorial
jurisdiction for all types of criminal offences, Member States may, subject to
the obligation under paragraph 1, limit their jurisdiction to the first of
these three situations. In addition, if they do not do so, they can still make
provisions the applicability of paragraphs 1(b) and 1(c) to cases where the
offence has been committed outside the territory of that Member State.
Paragraph
3 takes account of the fact that some Member States do not extradite their
nationals and seeks to ensure that persons suspected of having committed
trafficking offences do not evade prosecution because extradition is refused in
principle on the grounds that they are nationals of that state. A Member State
which does not extradite its own nationals must, in accordance with paragraph
3, take the necessary measures to establish its jurisdiction over and to
prosecute, where appropriate, the offences concerned when committed by its own
nationals
outside
its territory.
Paragraph
4 says that Member States shall inform the General Secretariat and the
Commission where they decide to apply paragraph 2.
Article
8 (Victims)
In
the European Union´s approach against trafficking in human beings,
special importance has been attached to assistance to the victims. In many
cases, victims of trafficking have been severely abused by the trafficker. The
Commission is therefore of the view that an Article on victims should be
included in this Framework Decision. Social assistance for children in order to
help them overcome the consequences of such events and enable them to
reintegrate, inter
alia,
into the labour market, forms part of the overall policy.
Article
9 (Co-operation between Member States)
The
purpose of Article 9 is to take advantage of instruments on international
judicial co-operation to which Member States are parties and which should apply
to the matters covered in this Framework Decision. For instance, arrangements
on mutual legal assistance and extradition are contained in a number of
bilateral and multilateral agreements as well as conventions of the European
Union. An additional purpose with this Article is to facilitate the exchange of
information.
Paragraph
1 requires Member States to afford each other mutual assistance to the widest
extent possible in judicial proceedings on trafficking in human beings. For the
situation where a positive conflict of jurisdiction occurs, paragraph 2
establishes that Member States shall consult one another with a view to
co-ordinating their action to prosecute effectively. The paragraph also
indicates that appropriate use shall be made of existing co-operation mechanisms
such as the liaison magistrates 8 and the European
Judicial Network 9
.
Paragraph
3 stresses the importance of having appointed points of contact for the purpose
of exchanging information. It explicitly indicates that Europol shall be
properly involved.
Paragraph
4 provides for the circulation of information on which points of contacts have
been appointed for the purpose of exchanging information pertaining to
trafficking in human beings.
Article
10 (Implementation)
Article
10 concerns the implementation and follow-up of this Framework Decision. It
establishes that the Member States shall take the necessary measures to comply
with this Framework Decision not later than 31 December 2002. It also
establishes that the Member States shall, by the same date, transmit to the
General Secretariat of the Council and to the Commission the provisions
transposing into their national legislation the obligations imposed on them
under this Framework Decision. On the basis of a report established on the
basis of this information and on a written report from the Commission, the
Council will by 30 June 2004 assess the extent to which Member States have
taken the necessary measures to comply with this Framework Decision.
Article
11 (Repeal of the Joint Action of February 1997)
Article
11 repeals the Joint Action of February 1997. The Joint Action was to be
implemented by 31 December 1999 and on this date the Member States were also to
report to Secretariat General of the Council on the proposals they have made
with a view for their adoption to fulfil their obligations under the Joint
Action. This Framework Decision together with the Framework Decision on sexual
exploitation of children and child pornography cover to a large extent the same
issues. Although it might follow from general principles of law that the Joint
Action is obsolete and no longer have any legal consequences, the Commission is
of the view that it is important to clarify that this Framework Decision
repeals the Joint Action.
8 OJ L 105, 27.4.1996
9 OJ L 191/4, 7.7.1998
Article
12 (Entry into force)
Article
12 indicates that this Framework Decision will enter into force on the day of
its publication in the Official Journal of the European Communities.
Proposal
for a
COUNCIL
FRAMEWORK DECISION
on
combating trafficking in human beings
THE
COUNCIL OF THE EUROPEAN UNION,
Having
regard to the Treaty on European Union, and in particular Articles 29, 31(e)
and 34(2)(b) thereof;
Having
regard to the proposal of the Commission;
Having
regard to the opinion of the European Parliament;
Whereas:
(1)
The Action Plan of the Council and the Commission on how to best implement the
provisions of the Treaty of Amsterdam on an area of freedom, security and
justice 1 , the Tampere European Council on 15-16 October
1999, the Santa Maria da Feira European Council on 19-20 June 2000, the
Commission in the Scoreboard 2 and the European
Parliament in its Resolution of 19 May 2000 3 indicate
or call for legislative action against trafficking in human beings, including
common definitions, incriminations and sanctions;
(2)
The Joint Action of 24 February 1997 concerning action to combat trafficking in
human beings and the sexual exploitation of children 4 needs to be followed by further legislative
action addressing the divergence of legal approaches in the Member States and
contributing to the development of an efficient judicial and law enforcement
co-operation against trafficking in human beings;
(3)
Trafficking in human beings constitute serious violations of fundamental human
rights and human dignity and involves ruthless practices such as the abuse and
deception of vulnerable persons, as well as the use of violence, threats, debt
bondage and coercion;
(4)
The important work performed by international organisations, in particular the
UN, must be complemented by that of the European Union;
(5)
It is necessary that the serious criminal offence trafficking in human beings
be
addressed
by a comprehensive approach in which constituent elements of criminal law
common to all Member States, including effective, proportionate and dissuasive
sanctions, form an integral part together with the widest possible judicial
co-operation;
1 OJ C 19, 23.1.1999
2 COM (2000) 167 final, p. 2.4 Management of migration flows and p.
4.3 Fight against certain forms of
crime
3 A5-0127/2000
4 OJ L 063, 4.3.1997
in
accordance with the principles of subsidiarity and proportionality this
Framework Decision 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;
(6)
It is necessary to introduce sanctions on perpetrators sufficiently severe to
allow for trafficking in human beings to be included within the scope of
instruments already adopted for the purpose of combating organised crime such
as the 98/699/JHA Joint Action 5 on money
laundering, the identification, tracing, freezing, seizing and confiscation of
the instrumentalities and the proceeds from crime and the 98/733/JHA Joint
Action 6 on making it a criminal offence to participate
in a criminal organisation;
(7)
This Framework Decision should contribute to the fight against and prevention
of trafficking in human beings by complementing the instruments adopted by the
Council such as the 96/700/JHA Joint Action 7 establishing
an incentive and exchange programme for combating trade in human beings and
sexual exploitation of children (STOP), the 96/748/JHA Joint Action 8 extending the mandate given to the Europol
Drugs Unit, the Decision of the Council and the European Parliament 293/2000/EC
9 on the Daphne programme on preventive measures
to fight violence against children, young persons and women, the Joint Action
98/428/JHA 10 on the creation of a European Judicial Network,
the Joint Action 96/277/JHA 11 , concerning a
framework for the exchange of liaison magistrates to improve judicial
co-operation between the Member States of the European Union and the Joint
Action 98/427/JHA 12
on good practice in mutual legal
assistance in criminal matters;
HAS
ADOPTED THIS FRAMEWORK DECISION:
Article
1
Offences
concerning trafficking in human beings for the purpose of labour exploitation
Each
Member State shall take the necessary measures to ensure that the recruitment,
transportation or transfer of a person, including harbouring and subsequent
reception and the exchange of control over him or her is punishable, where the
fundamental rights of that person have been and continue to be suppressed for
the purpose of exploiting him or her in the production of goods or provision of
services in infringement of labour standards governing working conditions,
salaries and health and safety, and:
(a)
use is made of coercion, force or threats, including abduction, or
(b)use
is made of deceit or fraud, or
(c)
there is a misuse of authority, influence or pressure, or
(d)there
is another form of abuse.
5 OJ L 333/1, 9.12.1998
6 OJ L 351/1, 29.12.1998
7 OJ L 322, 12.12.1996
8 OJ L 342 31.12.1996
9 OJ L 34 9.2 2000
10 OJ L 191/4 7.7.1998
11 OJ L 105, 27.4.1996
12 OJ L 191, 7.7.1998
Article
2
Offences
concerning trafficking in human beings for the purpose of sexual exploitation
Each
Member State shall take the necessary measures to ensure that the recruitment,
transportation or transfer of a person, including harbouring and subsequent
reception and the exchange of control over him or her is punishable, where the
purpose is to exploit him or her in prostitution or in pornographic
performances or in production of pornographic material, and:
(a)
use is made of coercion, force or threats, including abduction, or
(b)use
is made of deceit or fraud, or
(c)
there is a misuse of authority, influence or pressure, or
(d)there
is another form of abuse.
Article
3
Instigation,
aiding, abetting, and attempt
Each
Member State shall take the necessary measures to ensure that the instigation
of, aiding, abetting or attempt to commit an offence referred to in Articles 1
and 2 is punishable.
Article
4
Penalties
and aggravating circumstances
1.
Each Member State shall take the necessary measures to ensure that an offence
referred to in Articles 1, 2, and 3 is punishable by effective, proportionate
and dissuasive penalties, including by terms of imprisonment with a maximum
penalty that is not less than six years.
2.
Without prejudice to additional definitions in national legislation, each
Member State shall take the necessary measures to ensure that an offence
referred to in Articles 1, 2, and 3 is punishable by terms of imprisonment with
a maximum penalty that is not less than ten years when:
-
it involves particular ruthlessness, or
-
it generates substantial proceeds, or
-
it is committed within the framework of a criminal organisation.
Article
5
Liability
of legal persons
1.
Each Member State shall take the necessary measures to ensure that legal
persons can be
held
liable for an offence referred to in article 1, 2 and 3, committed for their
benefit by
any
person, acting either individually or as part of an organ of the legal person,
who has a
leading
position within the legal person, based on:
(a)
a power of representation of the legal person, or
(b)
an authority to take decisions on behalf of the legal person, or
(c)
an authority to exercise control within the legal person.
2.
Apart from the cases already provided for in paragraph 1, each Member State
shall take the necessary measures to ensure that legal persons can be held
liable where the lack of supervision or control by a person referred to in
paragraph 1 have rendered possible the commission of an offence referred to in
Articles 1, 2, and 3 for the benefit of that legal person by a person under its
authority.
3.
Liability of legal persons under paragraphs 1 and 2 shall not exclude criminal
proceedings against natural persons who are perpetrators, instigators or
accessories in an offence referred to in Articles 1, 2, and 3.
4.
For the purpose of this Framework Decision legal person shall mean any entity
having such status under the applicable law, except for States or other public
bodies in the exercise of State authority and for public international
organisations.
Article
6
Sanctions
on legal persons
Each
Member State shall take the necessary measures to ensure that a legal person
held liable pursuant to Article 5 is punishable by effective, proportionate and
dissuasive sanctions, which shall include criminal or non-criminal fines and
may include other sanctions, such as:
(a)
exclusion from entitlement to public benefits or aid, or
(b)
temporary or permanent disqualification from the practice of commercial
activities, or
(c)
placing under judicial supervision, or
(d)
a judicial winding-up order, or
(e)
temporary or permanent closure of establishments which have been used for
committing the offence.
Article
7
Jurisdiction
and prosecution
1.
Each Member State shall take the necessary measures to establish its
jurisdiction over an offence referred to in Articles 1, 2, and 3 where:
(a)
the offence is committed in whole or in part within its territory, or
(b)
the offender is one of its nationals, or
(c)
the offence is committed for the benefit of a legal person established in the
territory of that Member State.
2.
A Member State may decide that it will not apply or that it will apply only in
specific cases or circumstances, the jurisdiction rules set out in paragraphs 1
(b) and 1 (c) as far as the offence is committed outside its territory.
3.
A Member State which, under its laws, does not extradite its own nationals
shall take the necessary measures to establish its jurisdiction over and to
prosecute, where appropriate, an offence referred to in Articles 1, 2, and 3
when it is committed by its own nationals outside its territory.
4.
Member States shall inform the General Secretariat of the Council and the
Commission accordingly where they decide to apply paragraph 2, where appropriate
with an indication of the specific cases or circumstances in which the decision
applies.
Article
8
Victims
Each
Member State shall ensure that a victim of an offence provided for in this
Framework Decision is given adequate legal protection and standing in judicial
proceedings. In particular Member States´ shall ensure that criminal
investigations and judicial proceedings do not cause any additional damage for
a victim.
Article
9
Co-operation
between Member States
1.
In accordance with the applicable conventions, multilateral or bilateral
agreements or arrangements, Member States shall afford each other mutual
assistance to the widest extent possible in respect of judicial proceedings
relating to the offences provided for in this Framework Decision.
2.
Where several Member States have jurisdiction over the offences envisaged by
this Framework Decision, those States shall consult one another with a view to
co-ordinating their action in order to prosecute effectively. Appropriate use
shall be made of existing co-operation mechanisms, such as the liaison
magistrates and the European Judicial Network.
3.
For the purpose of exchange of information relating to the offences referred to
in Articles 1, 2, and 3, Member States shall establish operational points of
contact or make use of existing co-operation mechanisms. In particular, Member
States shall ensure that Europol, within the limits of its mandate, is fully
involved.
4.
Each Member State shall inform the General Secretariat of the Council and the
Commission
of its appointed point of contact for the purpose of exchanging information
pertaining to trafficking in human beings. The General Secretariat shall inform
all other Member States about the appointed points of contact.
Article
10
Implementation
1.
Member States shall take the necessary measures to comply with this Framework
Decision on 31 December 2002 at the latest.
2.
By the same date, the Member States shall transmit to the General Secretariat
of the Council and to the Commission the text of the provisions transposing
into their national law the obligations imposed on them under this Framework
Decision. The Council will, by 30 June 2004 at the latest, on the basis of a
report established on the basis of this information and a written report transmitted
by the Commission, assess the extent to which Member States have taken the
necessary measures in order to comply with this Framework Decision.
Article
11
Repeal
of the 97/154/JHA Joint Action
The
Joint Action of 24 February adopted by the Council on the basis of Article K.3
of the Treaty on European Union concerning action to combat trafficking in
human beings and sexual exploitation of children 1997 is repealed by this
Framework Decision.
Article
12
Entry
into force
This
Framework Decision shall enter into force on the day of its publication in the Official Journal of the European
Communities.
Done
at Brussels,
For
the Council
The
President
Proposal
for a
COUNCIL
FRAMEWORK DECISION
on
combating the sexual exploitation of children and child pornography
EXPLANATORY
MEMORANDUM
1.
INTRODUCTION
On
24 February 1997 the Council adopted a Joint Action concerning action to combat
trafficking in human beings and the sexual exploitation of children 1 . The Joint Action covers a wide range of
topics such as definitions (without prejudice to more specific definitions in
the Member States´ legislation), jurisdiction, criminal procedure,
assistance to victims and police and judicial co-operation. Through the Joint
Action, the Member States undertook to review their existing laws with a view
to providing that trafficking in human beings and the sexual exploitation of
children were criminal offences.
Since
the adoption of the Joint Action in 1997, actions and initiatives against
sexual exploitation of children and child pornography have developed
considerably in number and in substance at the level of the European Union as
well as at local, regional level and international level in a wider context.
Sexual exploitation of children and child pornography has given rise to
increased concern and the need to address diverging legal approaches in the
Member States by further action is clearly demonstrated.
Furthermore,
Article 29 of the Amsterdam Treaty provides an explicit reference to offences
against children. The Vienna Action Plan 2 and the
Tampere European Council made a clear call for further legislative action
against sexual exploitation of children. Legislative action is also indicated
in the Commission´s Scoreboard 3 . On 29
May 2000, the Council adopted a decision 4 to
combat child pornography on the Internet.
Two
examples of the development at the wider international level are the United
Nations Optional Protocol to the Convention of the Rights of the Child on the
sale of children, child prostitution and child pornography and the future Cyber
Crime Convention developed within the Council of Europe addressing, inter alia,
child pornography in the context of computer systems. The Commission has
participated actively in the elaboration of the latter instrument and important
elements of the future Convention on child pornography in computer systems are
reflected in this proposal, albeit this proposal also covers forms of child
pornography other than those in connection with computer systems.
Furthermore,
the specific character of an area of freedom, security and justice to be
created within the European Union should enable the Member States to develop a
Framework Decision in which certain aspects of criminal law and judicial co-operation
are taken further than has been possible through instruments available before
the entry into force of the Amsterdam Treaty and instruments developed at a
wider international level. A Framework Decision should, for instance, address
more precisely issues such as criminalisation, penalties and other sanctions,
aggravating circumstances, jurisdiction, including provisions on
extraterritorial
jurisdiction, and extradition.
In
conclusion, the Commission believes that a further response to the issue of
sexual exploitation of children and child pornography is required at the level
of the European Union.
1 OJ L 063, 4.3.1997
2 OJ C 19, 23.1.1999
3 COM (2000) 167 final, 24.3.2000
4 OJ L 138/1, 9.6.2000
Use
of a Framework Decision, an instrument introduced by the Amsterdam Treaty, will
reinforce a common approach of the European Union in these areas and fill gaps
in existing legislation. The need for a clear common approach on sexual
exploitation of children and child pornography should also be viewed against
the background of the future enlargement of the European Union.
The
Commission has therefore, as announced in the Scoreboard, decided to put
forward a proposal for a Framework Decision on the approximation of the
criminal laws of the Member States, including penalties, concerning sexual
exploitation of children and child pornography.
The
proposal also includes provisions on horizontal judicial issues such as
jurisdiction and co-operation between Member States. The proposal covers sexual
exploitation of children and child pornography. It does not include trafficking
in human beings for exploitative purposes that will be covered by a separate
proposal. The separation into two Framework Decisions will allow the Council to
focus on sexual exploitation of children and child pornography.
2.
LEGAL BASIS
This
proposal for a Framework Decision concerns approximation of the laws and
regulations of the Member States in the area of police and judicial
co-operation in criminal matters. It also concerns “minimum rules
relating to the constituent elements of criminal acts and to penalties in the
field of organised crime”. The legal basis indicated in the preamble of
the proposal is therefore Articles 29 with an explicit reference to offences
against children, 31(e) and 34(2)(b) of the Treaty on European Union. The
proposal will not entail financial implications for the budget of the European
Communities.
3.
THE FRAMEWORK DECISION: ARTICLES
Article
1 (Definitions)
Article
1 contains definitions of terms used in the Framework Decision. Points (a),
(b), and (c) contain core definitions for the purposes of the Framework
Decision. Point (a) defines «child
», point (b) defines «child pornography » and point (c) « computer system ».
The
definition of « child » regards any person below the age of
eighteen years as being a child for the purposes of this Framework Decision. As
far as this age is concerned with child pornography, the Commission is of the
view that depictions of persons under the age of eighteen involved in sexually
explicit conduct constitute sexual exploitation of children. Even though
children under the age of eighteen have reached the maturity to take an
informed decision about involving themselves in sexual activities, this should
therefore not include depictions of such activities. The age of eighteen is
also in conformity with the Convention of
the
Rights of the Child.
Point
(b) covers pornographic material depicting a child engaged in sexually explicit
conduct. The term visual depiction should be construed so as to include
undeveloped film and videotape, and data stored on computer disk or by
electronic means that are capable of conversion into a visual image. As
specifically regards sexually explicit conduct involving a child, it should be
understood to include at least:
a)
sexual intercourse, including genital-genital, oral-genital, anal-genital or
oral-anal intercourse;
b)
bestiality;
c)
masturbation;
d)
sadistic or masochistic abuse; or
e)
lascivious exhibition of the genitals or the pubic area.
Point
(d) defines « legal
person ». The definition
of legal person is taken from the second Protocol to the Convention on the
protection of the European Communities' financial interests 5 .
Article
2 (Offences concerning sexual exploitation of children)
Article
2 puts an obligation on the Member States to ensure that sexual exploitation of
children is punishable. Point (a) indicates that various forms of exploiting a
child in prostitution are punishable. Point (b) indicates that the engagement
of a child in sexual conduct is punishable when qualified by the circumstances
indicated in points (i) to (iii).
Sexual
conduct shall for the purposes of this Framework decision be construed to
include the conduct referred to under Article 1 on sexually explicit conduct as
regards child pornography.
Article
3 (Offences concerning child pornography)
Article
3 puts an obligation on the Member States to ensure that various forms of
intentional acts concerned with child pornography is punishable. Paragraph 1(a)
covers the production of child pornography, paragraph 1(b) the distribution,
dissemination and transmission of child pornography, paragraph 1(c) the
offering or otherwise the making available of child pornography, and paragraph
1(d), finally, acquisition or possession of child pornography.
The
« action verbs » in points (a) to (d) correspond not only to the
future Cyber Crime Convention, but also to elements found in the criminal laws
of the Member States. The Commission´s intention has been, as fully as
possible, to cover the behaviours typically constituting the criminal offence
child pornography.
Paragraph
1 of the Article includes that Member States shall ensure that the offences
listed shall be punishable also when the conduct, in part or in whole, includes
the use of a computer system.
Paragraph
2 covers two specific types of child pornographic material that visually
represents a child involved in sexually explicit conduct. First, where a person
appears to be a child, and, secondly, images that include depictions that are altered
or even generated entirely by for instance a computer, i.e. simulated or
fabricated. Paragraph 2 thus covers pornographic material where there is no
« actual » sexual exploitation behind the depiction. The interest
to protect is therefore different from the child pornography referred to in
paragraph 1; while paragraph 1 seeks to protect children from sexual abuse,
paragraph 2 seeks to protect children from being used as sexual objects and to
prevent pseudo child pornographic depictions to become more widespread with a
potential to underpin sexual exploitation of children.
5 OJ C 221, 19.7.1997
Paragraph
2 requires Member States to take the measures necessary to ensure that acts
concerned with pornographic material that visually represents a child involved
in sexually explicit conduct is punishable.
These
measures shall be without prejudice to the definitions otherwise provided for
in this Framework Decision. However, as specifically regards the situation
where the representation involves a person appearing to be a child, i.e. not a
fabricated
depiction, but a depiction of a real person, Member States shall exempt from
the scope of criminalisation the cases where it can be established that the
image is in fact of a person aged 18 or over. This ensures that, as a minimum
in all Member States, where a court is convinced that an image appears to be of
a child, but the actual age is unknown, this remains criminalised.
Article
4 (Instigation, aiding, abetting and attempt)
Article
4 (1) put an obligation on Member States to ensure that instigation of, aiding
or abetting the sexual exploitation of children and child pornography are
punishable.
Paragraph
2 of Article 4 specifically concerns attempt. It puts an obligation on Member
States to ensure that attempt to commit sexual exploitation of children,
production, distribution, dissemination, transmission, offering or otherwise
making available child pornography are punishable. Paragraph 2 does not include
attempt to commit intentional acquisition and possession of child pornographic
material.
Article
5 (Penalties and aggravating circumstances)
Article
5 concern penalties and aggravating circumstances. Paragraph 1 indicates that
the offences referred to in Articles 2, 3, and 4 shall be punishable by
effective, proportionate and dissuasive penalties including by terms of
imprisonment that is not less than four years. As regards intentional
acquisition and possession it is specifically indicated that the maximum
penalty shall not be less than one year. These penalties are sufficient to
include sexual exploitation of children and child pornography within the scope
of other instruments already adopted for the purposes of enhancing police and
judicial co-operation in the European Union such as the 98/699/JHA Joint Action
6 on money laundering, the identification,
tracing, freezing, seizing and confiscation of the instrumentalities and the
proceeds from crime and the 98/733/JHA Joint Action 7 on making it a criminal offence to participate
in a criminal organisation.
As
sexual exploitation of children and child pornography are very serious criminal
offences, paragraph 2 to 4 sets out that Member States shall ensure that when
aggravating circumstances apply, the offences shall be punishable by terms of
imprisonment with a maximum penalty of not less than eight years.
The
Commission´s proposal to have eight years as a minimum maximum penalty
builds on the view that possible penalties for sexual exploitation of children
and child pornography should reflect the seriousness of the crime and have a
strong deterrent effect.
Aggravating
circumstances that typically should qualify child prostitution, sexual
exploitation of children and child pornography as aggravated offences are
listed. These circumstances represent a minimum list, but are without prejudice
to additional definition in the legislation of the Member States. A further
explanation of what is meant by these circumstances for the purpose of this
Framework Decision is:
6 OJ L 333/1, 9.12.1998
7 OJ L 351/1, 29.12.1998
-
“involves a child below the age of ten years” or in the case of
child pornography
“…depictions
of a child below the age of ten years” should provide emphatic legal
protection for very young children and emphasise the seriousness of sexual
exploitation
of very young children in terms of possible penalties;
-
“involves particular ruthlessness” is aimed at targeting the level
of force or pressure exercised and the level of disregard of the health and
integrity of the victim, physical as well as mental; the more serious force,
pressure or disregard, the more severe the offence;
-
“generates substantial proceeds” could, where applicable, be
construed in analogy with aggravated “pimping” offences and should
at least include the enrichment of the perpetrator of the criminal activities;
-
“is committed in the framework of a criminal organisation should be
construed in accordance with Article 1 of the 98/733/JHA Joint Action om making
it a criminal offence to participate in a criminal organisation in the Member
States of the European Union 8 .
-
“involves depictions of a child being exposed to violence or force”
is aimed at
targeting
depictions involving elements of violence or force that indicates that the
child
is being hurt or expressing a strong anxiety; the more serious violence or
force, the more serious the offence.
Paragraph
5 of Article 5 requires Member States to consider prohibiting natural persons
from exercising, temporarily or permanently, activities involving supervision
of children when they have been convicted for one of the criminal offences
provided for in this Framework Decision.
Article
6 (Liability of legal persons)
It
is necessary also to cover the situation in which legal persons are involved in
sexual exploitation of children and child pornography. Article 6 therefore
provides provisions for holding a legal person liable for the offences
envisaged by Articles 2, 3, and 4, committed for their benefit by any person,
acting either individually or as a part of the organ of the legal person. The
term liability should be construed so as to include either criminal or civil
liability (see also Article 7 on sanctions).
In
addition, paragraph 2 provides that a legal person can also be held liable when
the lack of supervision or control by a person in a position to exercise
control, has rendered possible the commission of the offences for its benefit.
Paragraph 3 indicates that legal proceedings against a legal person do not
preclude parallel legal proceedings against a natural person. As specifically
regards the criminal offence child pornography by means of a computer system,
Article 6 is important in connection with liability of information society
service providers. Article 6 does not affect the provisions of Directive
2000/31/EC on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market (Directive on electronic
commerce)9 , which deal with the liability of intermediary
service providers. Articles 12 to 14 of this Directive define the conditions
under which intermediary service providers are not be held liable for
8 OJ L 351/1 29.12.1998
activities
and Article 15 specifies that Member States shall not impose on such
intermediary service providers a general obligation to monitor the information
which they transmit or store, nor a general obligation actively to seek facts
or circumstances indicating illegal activity.
The
purpose of this Framework Decision is to ensure that service providers are
liable when they commit child pornography offences for the benefit of the
service provider. Similarly, liability applies where lack of supervision has
rendered possible the commission of child pornography offences by a person
under the authority of the service provider and where the offence was committed
for the benefit of the service provider.
Article
7 (Sanctions on legal persons)
Article
7 sets out a requirement for sanctions on legal persons. It requires effective,
proportionate and dissuasive sanctions, where the minimum obligation is to
impose criminal or non-criminal fines. Other sanctions that typically could
apply to legal persons are also indicated.
Article
8 (Jurisdiction and prosecution)
The
international nature of the criminal offences sexual exploitation of children
and child pornography implies that an efficient legal response requires
procedural provisions on jurisdiction and on extradition which are as clear and
as far reaching as national legal systems will allow in order to guard against
persons evading prosecution. Paragraph 1 establishes a series of criteria
conferring jurisdiction on national enforcement and judicial authorities to
prosecute and examine cases involving the offences referred to in this
Framework Decision. A Member State shall establish its jurisdiction in three
situations:
(a)
where the offence is committed in whole or in part on its territory,
irrespective of the status or the nationality of the person involved
(territoriality principle), or
(b)
where the offender is a national (active personality principle). The criteria
of the status as a national means that jurisdiction can be established
regardless of the lex locus
delicti.It is up to Member
States to prosecute for offences committed abroad. This is particularly
important for Member States which do not extradite their own nationals, or
(c)
where the offence is committed for the benefit of a legal person established in
the territory of that Member State.
However,
as not all Member States’ legal traditions recognise extraterritorial
jurisdiction for all types of criminal offences, Member States may, subject to
the obligation under paragraph 1, limit their jurisdiction to the first of
these three situations. In addition, if they do not do so, they can still make
provisions to limit the applicability of paragraphs 1(b) and 1 (c) to cases
where the offence has been committed outside the territory of that Member
State.
Paragraph
3 takes account of the fact that some Member States do not extradite their
nationals
and
seeks to ensure that persons suspected of having committed sexual
exploitation
of children or child pornography offences do not evade prosecution because
extradition isrefused in principle on the grounds that they are nationals of
that state.
9 OJ L 178, 17.7.2000, p. 1
A
Member State which does not extradite its own nationals must, in accordance
with paragraph 3, take the necessary measures to establish its jurisdiction
over and to prosecute, where appropriate, the offences concerned when committed
by its own nationals outside its territory. Paragraph 4 says that Member States
shall inform the General Secretariat and the Commission where they decide to
apply paragraph 2.
Article
8(5) is intended to ensure that Member States have jurisdiction over offences
committed by accessing a computer system in a third country from their own
Member State, e.g. storing or making available child pornography on/from a
server in a third country.
Article
9 (Victims)
In
the European Union´s approach against sexual exploitation of children and
child pornography, special importance has been attached to the protection of
and the assistance to the victims. The Commission is therefore of the view that
an Article on victims should be included in the proposal for this Framework
Decision. Social assistance for victims in order to help them overcome the
consequences of such events and enable them to reintegrate into their normal
course of life, forms part of the overall policy.
Article
10 (Co-operation between Member States)
The
purpose of Article 10 is to take advantage of instruments on international
judicial co-operation to which Member States are parties and which should apply
to this Framework Decision. For instance, arrangements on mutual legal
assistance and extradition are contained in a number of bilateral and
multilateral agreements as well as conventions of the European Union. An
additional purpose with this Article is to facilitate the exchange of
information.
Paragraph
1 requires Member States to afford each other mutual assistance to the widest
extent possible in judicial proceedings on sexual exploitation of children and
child pornography. For the situation where a positive conflict of jurisdiction
occurs, paragraph 2 establishes that Member States shall consult one another
with a view to co-ordinate their action to prosecute effectively. The paragraph
also indicates that appropriate use shall be made of existing co-operation
mechanisms such as the liaison magistrates 10 and
the European Judicial Network 11 . Paragraph 3
stresses the importance of having appointed points of contact for the purpose
of exchanging information. It explicitly indicates that Europol and the
communicated
points of contact under the Council Decision to combat child pornography 12 should be properly involved.
Paragraph
4 provides for the circulation of information on which points of contacts have
been appointed for the purpose of exchanging information pertaining to sexual
exploitation of children and child pornography.
10 OJ L 105, 27.4.1996
11 OJ L 191/4, 7.7.1998
12 OJ L 138/1, 9.6.2000
Article
11 (Implementation)
Article
11 concerns the implementation and follow-up of this Framework Decision. It
establishes that the Member States shall take the necessary measures to comply
with this Framework Decision not later than 31 December 2002. It also
establishes that the Member States shall, by the same date, transmit to the
Secretariat General of the Council and to the Commission the provisions
transposing into their national law the obligations imposed on them under this
Framework Decision. On the basis of a report established on the basis of this
information and a written report from the Commission, the Council will by 30
June 2004 assess the extent to which the Member States have taken the necessary
measures to comply with this Framework Decision.
Article
12 (Entry into force)
Article
12 indicates that this Framework Decision will enter into force on the day of
its publication in the Official Journal of the European Communities.
Proposal
for a
COUNCIL
FRAMEWORK DECISION
on
combating the sexual exploitation of children and child pornography
THE
COUNCIL OF THE EUROPEAN UNION,
Having
regard to the Treaty on European Union, and in particular Articles 29, 31(e)
and 34(2)(b) thereof;
Having
regard to the proposal of the Commission;
Having
regard to the opinion of the European Parliament;
Whereas:
(1)
The Action Plan of the Council and the Commission on how to best implement the
provisions of the Treaty of Amsterdam on an area of freedom, security and
justice 1 , the conclusions from the Tampere European
Council, the Commission in the Scoreboard 2 , the
European Parliament in its Legislative Resolution of 11 April 2000 3 , include or call for legislative action
against sexual exploitation of children and child pornography, including common
definitions, incriminations and sanctions;
(2)
The Joint Action of 24 February 1997 concerning action to combat trafficking in
human beings and the sexual exploitation of children 4 and the Council Decision to combat child
pornography on the Internet 5 need to be followed
by further legislative action addressing the divergence of legal approaches in
the Member States and contributing to a further development of an efficient
judicial and law enforcement co-operation against sexual exploitation of children
and child pornography;
(3)
The European Parliament in its resolution of 30 March 2000 6 on the Commission Communication on the
implementation of measures to combat child sex tourism 7 reiterates that child sex tourism is a criminal
act closely linked to those of sexual exploitation of children and of child
pornography, requiring the Commission to submit to the Council a proposal for a
framework decision establishing minimum rules relating to the constituent
elements of these criminal acts;
(4)
Sexual exploitation of children and child pornography constitute serious
violations of human rights and of the fundamental right of a child to a
harmonious upbringing and development;
(5)
Child pornography, a particularly serious form of sexual exploitation of children,
is increasing and spreading through the use of new technologies and the
Internet;
(6)
The important work performed by international organisations must be
complementedby that of the European Union;
1 OJ C 19, 23.1.1999
2 COM (2000) 167 final, p. 4.3 Fight against certain forms of crime
3 A5-0090/2000
4 OJ L 063, 4.3.1997
5 OJ L 138/1, 9.6.2000
6 A5-0052/2000
7 COM (99) 262
(7) It is necessary that the serious
criminal offences sexual exploitation of children and child pornography be
addressed by a comprehensive approach in which constituent elements of criminal
law, common to all Member States, including effective, proportionate and
dissuasive sanctions, form an integral part together with the widest possible
judicial co-operation; in accordance with the principles of subsidiarity and
proportionality this Framework Decision 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;
(8)
It is necessary to introduce sanctions on perpetrators sufficiently severe to
allow for sexual exploitation of children and child pornography to be included
within the scope of instruments already adopted for the purpose of combating
organised crime such as the 98/699/JHA Joint Action 8 on money laundering, the identification,
tracing, freezing, seizing and confiscation of the instrumentalities and the
proceeds from crime and the 98/733/JHA Joint Action 9 on making it a criminal offence to participate
in a criminal organisation;
(9)
This Framework Decision is without prejudice to the powers of the European
Community;
(10)
This Framework Decision should contribute to the fight against sexual
exploitation of children and child pornography by complementing the instruments
adopted by the Council, such as the 96/700/JHA Joint Action 10 establishing an incentive and exchange
programme for combating trade in human beings and sexual exploitation of
children (STOP), the 96/748/JHA Joint Action 11 extending
the mandate given to the Europol Drugs Unit, the Decision of the Council and
the European Parliament 293/2000/EC 12 on the
Daphne programme on preventive measures to fight violence against children,
young persons and women, the Joint Action 98/428/JHA 13 on the creation of a European Judicial Network,
the Action Plan against illegal and harmful content on the Internet 14 ; the Joint Action 96/277/JHA 15 , concerning a framework for
the
exchange of liaison magistrates to improve judicial co-operation between the
Member
States of the European Union and the Joint Action 98/427/JHA 16 on good practice in mutual legal assistance in
criminal matters;
8 OJ L 333/1, 9.12.1998
9 OJ L 351/1, 29.12.1998
10 OJ L 322, 12.12.1996
11 OJ L 342, 31.12.1996
12 OJ L 34, 9.2.2000
13 OJ L 191/4, 7.7.1998
14 OJ L 33, 6.2.1999
15 OJ L 105, 27.4.1996
HAS
ADOPTED THIS FRAMEWORK DECISION:
Article
1
Definitions
For
the purposes of this Framework Decision:
(a)
"Child" shall mean any person below the age of
eighteen years;
(b)
"Child pornography" shall mean pornographic material that
visually depicts a child engaged in sexually explicit conduct;
(c)
“Computer system” shall mean any device or group of
inter-connected or related devices, one or more of which, pursuant to a
program, performs automatic processing of data;
(d)
“Legal person” shall mean any entity having such status under
the applicable law, except for States or other public bodies in the exercise of
State authority and for public international organisations;
Article
2
Offences
concerning sexual exploitation of children
Each
Member State shall take the necessary measures to ensure that the following
conduct is punishable:
(a)
coercing, exploiting, inducing, profiting from or otherwise facilitating the
prostitution of a child;
(b)
engaging a child in sexual conduct, where:
(i)
use is made of inducement or coercion, violence or threats, or
(ii)
money, other items of economic value or other forms of remuneration, is given
to a child in exchange for sexual services, or
(iii)
use is made of authority or influence over the child´s vulnerability.
Article
3
Offences
concerning child pornography
1.
Each Member State shall take the necessary measures to ensure that the
following intentional conduct, whether undertaken by means of a computer system
or not, is punishable:
(a)
production of child pornography, or
(b)
distribution, dissemination, or transmission of child pornography, or
(c)
offering or otherwise making child pornography available, or
(d)
acquisition and possession of child pornography.
2.
Each Member State shall also take the necessary measures to ensure, without
prejudice to definitions otherwise provided for in this Framework Decision,
that the conduct referred to in paragraph 1 is punishable when involving
pornographic material that visually represents a child engaged in sexually
explicit conduct, unless it is established that the person representing a child
was over the age of eighteen years at the time of the depiction.
16 OJ L 191, 7.7.1998
Article
4
Instigation,
aiding, abetting and attempt
1.
Each Member State shall take the necessary measures to ensure that the
instigation of, aiding or abetting an offence referred to in Articles 2 and 3
is punishable.
2.
Each Member State shall take the necessary measures to ensure that attempt to
commit the conduct referred to in Articles 2 and 3(1)(a) to (c) are punishable.
Article
5
Penalties
and aggravating circumstances
1.
Each Member State shall take the necessary measures to ensure that an offence
referred to in Articles 2, 3(1)(a) to (c) and Article 4 is punishable by
effective, proportionate and dissuasive penalties, including by terms of
imprisonment with a maximum penalty that is not less than four years and, as
regards an offence referred to in Article 3(1)(d) not less than one year.
2.
Without prejudice to additional definitions in the Member States´
legislation, each Member State shall take the necessary measures to ensure that
an offence referred to in Articles 2(a) and 4 in that respect is punishable by
terms of imprisonment with a maximum penalty that is not less than eight years
when:
-
it involves a child below the age of ten years, or
-
it involves particular ruthlessness, or
-
it generates substantial proceeds, or
-
it is committed within the framework of a criminal organisation.
3.
Without prejudice to additional definitions in the Member States´
legislation, each Member State shall take the necessary measures to ensure that
an offence referred to in Articles 2(b) and 4 in that respect is punishable by
terms of imprisonment with a maximum penalty that is not less than eight years
when:
-
it involves a child below the age of ten years, or
-
it involves particular ruthlessness.
4.
Without prejudice to additional definitions in the Member States´
legislation, each Member State shall take the necessary measures to ensure that
an offence referred to in Articles 3(1)(a) to (c) and 4 in that respect is
punishable by terms of imprisonment with a maximum penalty that is not less
than eight years when:
-
it involves depictions of a child below the age of ten years, or
-
it involves depictions of a child being exposed to violence or force, or
-
it generates substantial proceeds, or
-
it is committed within the framework of a criminal organisation.
5.
Each Member State shall also consider prohibiting natural persons from
exercising, temporarily or permanently, activities related to the supervision
of children where they have been convicted of an offence referred to in
Articles 2, 3, or 4.
Article
6
Liability
of legal persons
1.
Each Member State shall take the necessary measures to ensure that legal
persons can be held liable for an offences referred to in Articles 2, 3, and 4
committed for their benefit by any person, acting either individually or as
part of an organ of the legal person, who has a leading position within the
legal person, based on:
(a)
a power of representation of the legal person, or
(b)
an authority to take decisions on behalf of the legal person, or
(c)
an authority to exercise control within the legal person.
2.
Apart from the cases already provided for in paragraph 1, each Member State
shall take the necessary measures to ensure that legal persons can be held
liable where the lack of supervision or control by a person referred to in
paragraph 1 have rendered possible the commission of an offence referred to in
Articles 2, 3, and 4 for the benefit of that legal person by a person under its
authority.
3.
Liability of legal persons under paragraphs 1 and 2 shall not exclude criminal
proceedings against natural persons who are perpetrators, instigators or
accessories in offences referred to in Articles 2, 3, and 4.
Article
7
Sanctions
on legal persons
Each
Member State shall take the necessary measures to ensure that a legal person
held liable pursuant to Article 6 is punishable by effective, proportionate and
dissuasive sanctions, which shall include criminal or non-criminal fines and
may include other sanctions such as:
(a)
exclusion from entitlement to public benefits or aid, or
(b)
temporary or permanent disqualification from the practice of commercial
activities, or
(c)
placing under judicial supervision, or
(d)
a judicial winding-up order, or
(e)
temporary or permanent closure of establishments which have been used for
committing the offence.
Article
8
Jurisdiction
and prosecution
1.
Each Member State shall take the necessary measures to establish its
jurisdiction over the offences referred to in Articles 2, 3, and 4 where:
(a)
the offence is committed in whole or in part within its territory; or
(b)
the offender is one of its nationals; or
(c)
the offence is committed for the benefit of a legal person established in the
territory of that Member State.
2.
A Member State may decide that it will not apply or that it will apply only in
specific cases or circumstances, the jurisdiction rules set out in paragraphs 1
(b) and 1 (c) as far as the offence is committed outside its territory.
3.
A Member State which, under its laws, does not extradite its own nationals
shall take the necessary measures to establish its jurisdiction over and to
prosecute, where appropriate, an offence referred to in Articles 2, 3, and 4
when it is committed by its own nationals outside its territory.
4.
Member States shall inform the General Secretariat of the Council and the
Commission accordingly where they decide to apply paragraph 2, where
appropriate with an indication of the specific cases or circumstances in which
the decision applies.
5.
For the purpose of establishing jurisdiction over an offence referred to in
Article 3, the offence shall be considered to be committed in whole or in part
within its territory where the offence is committed by means of a computer
system accessed from its territory, whether or not the computer system itself
is on its territory.
Article
9
Victims
Each
Member State shall ensure that a victim of an offence provided for in this
Framework Decision is given the adequate legal protection and the standing in
judicial proceedings. In particular Member States´ shall ensure that
criminal investigations and judicial proceedings do not cause any additional
damage for a victim.
Article
10
Co-operation
between Member States
1.
In accordance with the applicable conventions, multilateral or bilateral
agreements or arrangements, Member States shall afford each other mutual
assistance to the widest extent possible in respect of judicial proceedings
relating to the offences provided for in this Framework Decision.
2.
Where several Member States have jurisdiction over of the offences envisaged by
this Framework Decision, those States shall consult one another with a view to
co-ordinating their action in order to prosecute effectively. Appropriate use
shall be made of existing co-operation mechanisms, such as the liaison
magistrates and the European Judicial Network.
3.
For the purpose of exchange of information relating to the offences referred to
in Articles 2, 3, and 4, and in accordance with data protection rules, Member
States shall establish operational points of contact or make use of existing
co-operation mechanisms. In particular, Member States shall ensure that
Europol, within the limits of its mandate, and the communicated points of
contact under the Council Decision to combat child pornography are fully
involved.
4.
Each Member State shall inform the General Secretariat of the Council and the
Commission
of its appointed point of contact for the purpose of exchanging information
relating sexual exploitation of children and child pornography. The General
Secretariat shall inform all other Member States about the appointed points of
contact.
Article
11
Implementation
1.
Member States shall take the necessary measures to comply with this Framework
Decision on 31 December 2002 at the latest.
2.
By the same date, the Member States shall transmit to the General Secretariat
of the Council and to the Commission the text of the provisions transposing
into their national legislation, the obligations imposed on them under this
Framework Decision. The Council will, by 30 June 2004 at the latest, on the
basis of a report established on the basis of this information and a written
report transmitted by the Commission, assess the extent to which Member States
have taken the necessary measures in order to comply with this Framework
Decision.
Article
12
Entry
into force
This
Framework Decision shall enter into force on the day of its publication in the Official
Journal
of the European Communities.
Done
at Brussels,
For
the Council
The
President