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3.5.6 Conclusion
Implementation
<strong>National</strong> Public Prosecutor’s Office
At present, the prosecution of child pornography offences in first instance is carried out exclusively
at district court public prosecutor’s offices. Considering the scope and complexity of some cases, it is
necessary to consider whether this type of case should not also be made part of the remit of the <strong>National</strong>
Public Prosecutor’s Office, so that the <strong>National</strong> Public Prosecutor’s Office can play a guiding role in
extensive, complex and cross-border cases and can also be involved in the development of innovative
detection methods.
Diversity of conduct which constitutes a criminal offence
Article 240b of the Dutch Criminal Code covers various forms of conduct, ranging from gaining access to
and possession of child abuse material to the production and distribution thereof. The formulation of
the section of the law does not, from the statistical material, lay out how prosecution and trial relate to
the various forms of conduct. A formulation consisting of various categories should be taken into consideration.
It is possible that the new forthcoming EU Guideline provides occasion for re-examination
of the formulation of the current provision of penalties.
Determination of the punishment
The above distinction is also relevant for the process of imposing sentences. In practice, the court usually
imposes a suspended custodial sentence in combination with a community service order. From the
figures, there appears to be a clear tendency towards imposing more severe sentences: the proportion
of non-suspended or partially suspended custodial sentences increased in the period between 2006 and
2010 and in 2010, a community service order was imposed less often as the main sentence. At present,
it is still unclear if, and to what extent, the possibilities for imposing community service orders will be
limited in the future for cases involving a breach of Article 240b of the Dutch Criminal Code. Limiting
the possibilities to impose a community service order, particularly if this would no longer be possible
in combination with suspended sentences, would in any case provide courts with fewer opportunities
to tailor the sentence to the individual case. In this context, possibilities for influencing behaviour by
means of supervision on the basis of conditions imposed for a suspended prosecution, for example,
must also be taken into consideration.
Alternative means of settlement
In June 2011, the government stated in a letter to the Lower House that other methods of settling cases
must be sought. This mainly concerns the possession of child abuse material. The distinction between
the different forms of conduct is also relevant here. However, the rationale behind abolishing or limiting
the possibility to impose a community service order (‘stricter sentencing’) does not seem to correspond
with the alternative means of settlement which the Public Prosecution Service and (also) the government
are seeking, namely for those offences contrary to Article 240b of the Dutch Criminal Code which are
relatively mild cases, such as the possession of a small quantity of material where the suspect has not
had any previous involvement with judiciary in this field.
Victims in criminal proceedings
The handling of criminal cases with regard to identified victims of child pornography raises a number
of – relatively – new questions. In addition, the issue involves victims who are, by definition, particularly
vulnerable, as they are always children. There is currently no statutory or other provision to
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