Johanna Westeson - The ICHRP

some regions have exempted from penalization material with a sexual content made by
adolescents by and for their own private use, as will be shown below.
The European region shows strong commitment to the fight against sexual exploitation of
children, both on regional and domestic levels. This chapter will address regional and
domestic criminal provisions on sexual violence against children and regulation of child
pornography. It overlaps in part with Chapter 2C: Age of consent, Chapter 5F: Sexual
exploitation and trafficking, as it has relevance for persons under the age of 18, and
Chapter 7B: Sexual expression.
2. Council of Europe
Jurisprudence of the European Court of Human Rights
Sexual violence towards children/positive obligations of states:
In X. and Y. v. the Netherlands, 573 the applicants were a 16-year old mentally disabled
young woman and her father. The girl had been sexually assaulted in the family home
where she lived, and the father reported the incident to the police. Because of her mental
condition, the young woman was unable to sign the complaint herself, and so her father
signed it on her behalf. For the legal provision that would be most appropriate for the
crime – ‘indecent assault by the abuse of dominant position’ – Dutch criminal law required
that action be taken by the victim personally. Thus, the father’s signature was not accepted.
Other provisions were found not to be applicable for other reasons, and regulations related
to age of consent could not be used since the young woman was over 16. Hence, the case
exposed a gap in the law, and the complaint was not proceeded with. The applicants
complained that the failure of the state to provide a criminal law remedy against the
perpetrator violated their right to respect for private and family life under Article 8.
The Court acknowledged that there are many ways for states to ensure right to respect for
private life in accordance with the Convention, and that criminal law may not be the only
appropriate path. Still, the Court found that in the present case, the Dutch law offered no
effective protection of a person in the applicant’s position. Given the seriousness of the
crime, it was not sufficient to provide for civil law provisions, under which the applicants
could have brought a claim for damages:
The Court finds that the protection afforded by the civil law in the case of wrongdoing of the
kind inflicted on Miss Y is insufficient. This is a case where fundamental values and essential
aspects of private life are at stake. Effective deterrence is indispensable in this area and it can
be achieved only by criminal-law provisions; indeed, it is by such provisions that the matter
is normally regulated. (para 27)
The Court found that, “taking account of the nature of the wrongdoing in question,” the
applicant had been the victim of a violation of Article 8.
It is worth noting that the Court found a violation under the right to respect for family and
private life, in a case of sexual violence, rather than under Article 3 (prohibition of
inhuman and degrading treatment). This finding is surprising, and innovative, while also
573 Application no. 8978/80, decided on 26 March 1985.
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