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<strong>Child</strong> PornograPhy First report oF the Dutch NatioNal rapporteur
habit’, which carries an increased penalty, exist? Can it simply involve the mere possession of 100,000
images, for example, or does it have to involve downloading images repeatedly over a certain period of
time? Case law indicates that three aspects play a role here: the systematic character of the possession,
the intensity (the quantity of images) and the duration of possession.
In 2007, the Court of The Hague ruled that it can be described as a habit if ‘one is used to doing
something repeatedly over a long period of time’ 407 The Court provides a linguistic explanation for
this. It is not a requirement that this activity was undertaken for a commercial purpose. 408 In 2008,
the Court of Dordrecht ruled that habitual cases involve a systematic character. 409 The suspect had
already been downloading child abuse material for three years and had regular contacts with whom
he shared material. In a case handled by the Court of Zutphen, the suspect was occupied with child
abuse material almost every day, and this was sufficient reason for the court to assume it was
habitual. 410 It can also be the case that the suspect has held a subscription for a website relating to
child pornography for a longer period of time. This can also prove the systematic character of the
behaviour. 411 It is also possible that an individual is sentenced for possessing a small number of images.
In establishing a habit, the intensity and duration of the possession of images are also taken
into consideration. 412 This also comes to the fore in the case of the Supreme Court from December
2010. In this, the Supreme Court considers, amongst other things, that:
‘From the evidence put forward, the Court has manifestly and not incomprehensibly reasoned
that over the proven period of almost three years, the suspect repeatedly downloaded, saved and
stored images and films in many folders, on two hard drives and on hundreds of DVDs and that he
expanded and added to his collection of those images and data storage media over the course of
this period, resulting in a collection that comprised approximately 41,213 multimedia files concern-
407 The Court of The Hague, 17 April 2007, <strong>National</strong> Case Law Number: BA3188. Cf. Court of Leeuwarden,
26 March 2009, <strong>National</strong> Case Law Number: BH9199. In this case, the court rules that the circumstance
of paragraph 2 which carries an increased penalty does not apply. Over a period of (under) a year, the
suspect also imported images of child abuse, after which he saved them onto the hard drive and other
data storage media. At the time that the computer concerned was seized, the extent of the collection
became clear. The court was of the opinion that the evidence available was insufficient to demonstrate
that the duration, frequency and intensity with which the images were used constituted a habit.
408 See also Court of Appeal of Amsterdam, 12 October 2005, <strong>National</strong> Case Law Number: AU4229.
409 Court of Dordrecht, 14 October 2008, <strong>National</strong> Case Law Number: BF8894.
410 Court of Zutphen, 18 April 2007, <strong>National</strong> Case Law Number: BA3253.
411 Court of Leeuwarden, 30 May 2006, <strong>National</strong> Case Law Number: AY5820.
412 See Van Koppen, 2009, pp.95-96. See Court of Rotterdam, 22 October 2009, <strong>National</strong> Case Law Number:
BK1007 (the court rules that, taking into consideration the statement from the suspect that he visited
child pornography websites increasingly often and for increasingly long periods of time, as well as taking
into consideration the quantity of images and the structured way in which the suspect had saved
these in different folders, it is an established fact that the suspect made a habit of the possession of
images). See also Court of Middelburg, 18 February 2010, <strong>National</strong> Case Law Number: BL4440. Cf. Court
of Groningen, 10 March 2011, <strong>National</strong> Case Law Number: BP7372 (the court rules that the ‘possession
of images of child pornography for a lengthy period of time and a limited degree of distribution’ alone
were insufficient to enable one to regard this as a habit).