Child Pornography - Home | National Rapporteur on Trafficking in ...

Implementation
ing child pornography. Based on this, the Court was able to determine that the suspect “made a
habit,” as referred to in Article 240b of the Dutch Criminal Code, of possessing those images and
data storage media, within the meaning of the second Paragraph of that stipulation.’ 413
In his conclusion, the Advocate-General Vellinga states, amongst other things, that possession is a
condition that does not lend itself to plurality, but that the habitual possession of an image or data
storage medium may already exist in the possession of multiple abusive images or multiple data
storage media with (a) child pornography image(s). The designation as a habit can also be revealed
through the duration of the possession or the way in which possession came about. It may be the case
that the suspect collected the images bit by bit and that he therefore came into possession of more and
more new images, thereby indicating that he made a habit out of collecting, and therefore possessing
abusive images; according to the Advocate-General loc. cit., the evidence employed concludes that the
suspect collected the multimedia files concerned in parts. 41,213 multimedia files were discovered in
this case, stored on a large number of different media. Storing that amount of data cannot happen at
once, neither taking into consideration the number of multimedia files nor taking into consideration
the fact that these were stored on various media. From the evidence put forward, it was therefore
decided that the suspect did not take possession of the files all at once, according to the Advocate-
General. The proven facts – making a habit – can therefore be deduced from the evidence employed
alone. Making a habit of possession of child abuse material can also be proven by the circumstance
that the suspect not only collected those images, but also organised them. By occupying himself with
his possession in such a way, the suspect expresses that he not only obtained and saved images from
the Internet, but that by organising his collection, he accentuated the continuation of the possession,
thereby keeping it alive, certainly when taking into consideration the extent of the collection and the
time that it must have taken to organise the collection, according to the Advocate-General.
A sentence for profession or habit can also be imposed if it concerns possession of, for example, 100,000
images alone or downloading images repeatedly over a certain period of time.
Public Prosecution Service Guidelines for Demands
The Criminal Procedure Guidelines in cases concerning child pornography (hereinafter: the Guidelines) 414
provide a framework for the Public Prosecution Service for the formulation of demands. As a starting point,
both the Guidelines as well as the Implementation Provisions concerning child pornography adopt the view
that it is necessary to protect both the child who is directly involved in the production of child abuse material,
as well as children in general. This applies to children in the Netherlands, but also to those abroad. A
large amount of material is produced in countries where this can take place with very little risk, and this is
subsequently distributed, certainly by means of the Internet, all over the world in a very short period of time.
In addition to the distinction that is made between possession, distribution and production of child abuse
material, which each carry their own sentence in the Guidelines, these Guidelines also take account of three
specific factors: the nature of the images, the age of the victims, and the period of time during which the
activities took place. When taking account of the nature of the images, the poses of the children are relevant,
as is the question as to whether the images show acts of sexual abuse, actual penetration or photos that are
413 Supreme Court, 7 December 2010, <strong>National</strong> Case Law Number: BN8215, legal ground 2.4.
414 <strong>Child</strong> pornography guidelines, Dutch Government Gazette, 24 April 2007, no.79, extended to 31 October
2011, Dutch Government Gazette, 23 March 2011, no.4983.
185