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

188
<strong>Child</strong> PornograPhy First report oF the Dutch NatioNal rapporteur
Community Service Order
In the Public Prosecution Service Implementation Provisions concerning community service orders,
suspects of child pornography are in any case excluded from a basic community service order. 422 The
reference points of the <strong>National</strong> Consultative Committee for the Chairmen of Criminal Law Sectors
are based on a community service order, but this is in addition to a suspended custodial sentence of
six months, only in those cases which involve the acquisition or possession of, or the gaining of access
to child abuse material. It does occur that basic community service orders are imposed for offences as
referred to in Article 240 of the Dutch Criminal Code (see §3.5.4.2).
Since 2009, there has been discussion surrounding a legislative proposal to limit the possibilities to
impose a community service order for serious sexual abuse offences and violent offences and in the
event of re-offending. 423 The legislative proposal begins by proposing to make it no longer possible to
impose a community service order in sentences on the basis of, including others, Article 240b of the
Dutch Criminal Code, unless in combination with suspended or non-suspended sentences or orders
that involve deprivation of freedom. The choice of, amongst other offences, child pornography was
inspired by the desire to highlight the severity of this offence and to emphasise the importance of the
protection that this stipulation intends to provide to minors. In sentences for Article 240b of the Dutch
Criminal Code, basic community service orders cannot be imposed, according to the explanation, 424
regardless as to whether or not the offence resulted in a serious infringement of the victim’s physical
integrity.
In November 2010, the Minister for Security and Justice submitted a government amendment, which
amended two parts of the legislative proposal. First of all, the court would no longer be able to impose a
community service order in combination with a (suspended or non-suspended) sentence or orders that
involve deprivation of freedom. Secondly, the discretionary capacity of the Public Prosecution Service in
the case of the enforcement of a (partly) failed community service order would disappear, so that in the
future the Public Prosecution Service would be required to order the enforcement of alternative detention
for those cases. As stated, this government amendment proposes abolishing the possibility of imposing
a community service order in combination with a suspended or non-suspended sentence or orders that
involve deprivation of freedom for serious sexual abuse offences and violent offences and in the event of
422 Implementation Provisions concerning community service orders 2008A025, Dutch Government
Gazette 2008, no.235. In the event of suspects of serious violent offences or sexual abuse offences,
a custodial sentence is expressly considered, possibly an entirely or partially suspended sentence,
but not a basic community service order, “In any case, suspects of serious violent offences or sexual
abuse offences – in which a custodial sentence of six or more years has been imposed and which
involve a serious infringement of physical integrity – are excluded from a basic community service
order. In these cases, the suspect should always be summoned.” In addition to these violent offences
or sexual abuse offences, those suspected of having committed offences contrary to Article
240b of the Dutch Criminal Code, amongst others, which carry a sentence of less than six years,
should also be excluded from a basic community service order. “Those suspects should also be
summoned.”
423 Parliamentary Papers II 2009/10, 32 169, no.2.
424 Parliamentary Papers II 2009/10, 32 169, no.3, p.10.