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

40
<strong>Child</strong> PornograPhy First report oF the Dutch NatioNal rapporteur
In addition, the criminalisation of simple possession of child abuse material was also taken a step
further; until that time, possession was not a criminal offence. To constitute a criminal offence,
it is now no longer a requirement for certain acts, including ‘having possession [with an intent to
distribute or display],’ to take place with a view to distributing or openly exhibiting child abuse
material; rather, the legislator now regards such acts as a punishable offence, even if there was
no additional intention involved. Furthermore, this also does away with the need to provide evidence
of such intent. 47 The production of child abuse material for personal use and possession
of such material in the private domain are now also subject to the provisions of Article 240b of
the Dutch Criminal Code.
Further legislative changes followed in 2002, 48 chiefly by reason of international developments.
The ratification by the Netherlands of the ILO Convention Concerning the Prohibition and Immediate
Action for the Elimination of the Worst Forms of <strong>Child</strong> Labour, in 1999 49 made it mandatory
to raise the age limit in Article 240b of the Dutch Criminal Code to 18 years. In addition, due to
the ratification of the Convention on Cybercrime created within the framework of the Council
of Europe, 50 virtual child abuse material also became a criminal offence. The words ‘schijnbaar
betrokken’ [apparently involved] were added to Article 240b of the Dutch Criminal Code, which
means that it is no longer a requisite that a real child was involved in the production of child
abuse material. The terminology ‘in voorraad hebben’ [having possession (with an intent to distribute
or display)] was replaced by the word ‘bezit’ [possession] following a ruling by the Supreme
Court. 51 The possession of a child abuse image also includes the possession of one or more images
for personal use, so the possession of one or more images for personal use also constitutes
a criminal offence. From that point onwards, and as is still the case now, the provisions making
child pornography a criminal offence concern three types of child abuse material: 1. an image of
a real child (any person below the age of 18 years); 2. an image of a real person who looks like a
child; 3. a realistic image of a non-existent child. 52 These amendments form part of the partial
amendment to the decency legislation and therefore also relate to criminal provisions other
47 Presentation of the Ministry of Justice, Department of Legislation, BNRM Expert Meeting on <strong>Child</strong>
<strong>Pornography</strong>, The Hague, 18 February 2010.
48 Dutch Bulletin of Acts and Decrees 2002, 388, entered into force on 1 October 2002 (Dutch Bulletin of
Acts and Decrees 2002, 470).
49 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms
of <strong>Child</strong> Labour (ILO Convention), Geneva, 17 June 1999, Treaty Series 2001, 69 and 2004, 35.
50 Convention concerning the tackling of criminal offences in relation to electronic networks (Convention
on Cybercrime), Budapest, 23 November 2001, Treaty Series 2002, 18 and 2004, 290)
51 Supreme Court, 21 April 1998, NJ [Dutch Law Report] 1998, 782, with note ’t Hart.
52 See also Article 9, paragraph 2, sub-sections a to c inclusive of the Convention on Cybercrime. Cf.
Article 1 of the EU Framework Decision, which also enables a number of exceptions to this in Article 3,
for example with regard to the criminalisation of the production and possession of virtual child abuse
material for private use. The Netherlands has not implemented possible provisos in this area.