3. LEGISLATION (Click here to view code summaries for member states)
Legal action in the field of commercial sexual exploitation of children is to be divided in two: changes in the laws themselves and the enforcement of the laws. The Expert Group has found that some of the Member States are lacking legislation that is coherent and has a full coverage of the issue. There are legal loopholes in the legislation which make it hard to prosecute some perpetrators. Even though legislation on commercial sexual exploitation exists in some Member States, there are problems with enforcement. In other Member States the problems are of another character. The legislation is not up to date and does not conform with the UN Convention on the Rights of the Child.
The following is a compilation of the information
submitted by the Member States.
3.1 Age limits
Country:Age of consent to sexual intercourse. Other age limits in relation to protection against sexual exploitation or sexual abuse
Denmark15:12, 21
Estonia14:16
Finland16:14
Germany14:16,18, 21
Iceland14:16
Latvia16
Lithuania18:14,16
Norway16:14, 10
Poland15
Russia18:16, 14
Sweden15:18
Some of the different age limits listed in the second column are related to cases where the child is in a position of dependence, for example a pupil and a teacher. Other age limits are seen as aggravating circumstances. For more details see annex B.
3.2 Existence of special provisions regarding commercial sexual exploitation of children
Denmark
There are no special provisions against child prostitution in the Danish Criminal Code.
The child is however protected by other provisions. The perpetrator can be sentenced to 6
years' imprisonment or if the child is under 12 years of age or if the perpetrator has
enforced sexual intercourse by coercion or by persuasion the sentence may be up to 10
years' imprisonment. A person can be sentenced up to 4 years' imprisonment for pandering.
There are no special provisions in the Criminal Code regarding the treatment of
perpetrators but perpetrators can under certain circumstances be sentenced to treatment as
a condition for a suspended sentence.
It is illegal to produce, distribute and possess child pornography in Denmark.
Estonia
There are special provisions against commercial sexual exploitation of children in the
Criminal Code. It is illegal to persuade or mediate a minor into prostitution, to purchase
or sell children and to exchange or steal a child for the purpose of revenge or personal
profit or some other personal motive. The sanction for these crimes is imprisonment. There
is no special rehabilitation programme for offenders of sexual crimes within the penal
system.
It is illegal to possess, distribute, deliver or to put in public display issues depicting a minor in an erotic or pornographic situation. It is also illegal to deliver or to put into public display or to make accessible to underage persons issues depicting a minor in an erotic or pornographic situation. Production of child pornography is illegal as well.
Finland
There are no special provisions against prostitution or commercial sexual exploitation of
children in the Penal Code. Pandering or encouraging or taking advantage of the life that
a prostitute leads for personal gain is punished by imprisonment. The sanction against the
perpetrator is imprisonment. There are no provisions about the treatment of the
perpetrator in the Penal Code.
The chapter of the Penal Code on sexual offences is undergoing a reform and the bill is currently under discussion in the Finnish Parliament. One of the main objectives of the new provisions on sexual offences is to improve the protection of children by criminal law. The bill includes a penal provision on sexual intercourse and other sexual relationship with a child under the age of 15. The bill also includes a completely new provision, the purchase of sexual services from a child under 18 years. These offences are subject to public prosecution. A new provision penalising the possession of child pornography is also foreseen in the bill. Possession is proposed to be criminalized even in situations without intent to distribute the material. Production and distribution of child pornography are already criminalized.
Germany
There are special provisions in the Criminal Code concerning sexual offences against
children, promotion of minors' sexual acts and child prostitution.
Production, distribution and possession of child pornography are illegal. In Germany , the terms "child prostitution" and "child pornography" only relate to persons under the age of 14.
A perpetrator is punished by imprisonment. Pandering and pimping are also punished by imprisonment. In cases where the execution of a sentence is suspended and the offender is placed on probation or a prisoner is released on parole, the court may issue an instruction to the offender for the term of probation, including instruction to submit himself to therapy. According to an amendment to the Criminal Code that will come into force mid-January, the offender's consent will no longer be a prerequisite to such an instruction, provided the therapy does not include the infliction of bodily harm.
Sex offenders can also undergo therapy while serving a prison sentence, either in a regular prison or in a special institution for social therapy. The amendment mentioned above will also facilitate the confinement of a sex offender to an institution for social therapy.
According to an amendment to the Criminal Code that has come into force in January 1998, the offender's consent is no longer a prerequisite to such an instruction, provided the therapy does not include the infliction of bodily harm.
Sex offenders can also undergo therapy while serving a prison sentence, either in a regular prison or in a special institution for social therapy. The amendment mentioned above has also facilitated the confinement of a sex offender to an institution for social therapy.
Iceland
There are special provisions against prostitution in the Icelandic Penal Code.
Prostitution is subject to a maximum prison term of two years. It is illegal to earn one's living through promiscuity of others and to induce or coerce youths under the age of 18 to support themselves through promiscuity. It is also illegal to assist other persons in travelling to or from Iceland for the purpose of subsistence by promiscuity.
Pornography is a punishable offence under the Penal Code and producing, importing for distribution, selling, circulating or propagating pornographic publications or pictures or other such materials or putting such on public display and holding public lectures or games which are similarly indecent is punishable by fine, detention or up to six months' imprisonment. It is specified that the same penalties apply to passing pornographic publications, pornographic pictures or other similar material on to youths under the age of 18. Possession of photographs, films or similar material depicting children in a sexual or pornographic manner and possessing photographs, films or similar material depicting children performing sexual acts with animals or using objects in a pornographic manner is an offence punishable by fines.
The sanction against perpetrators is up to 14 years' imprisonment. The sanction for pandering or for being a pimp is up to 4 years' imprisonment. There is no treatment for the perpetrator within the penal system.
Latvia
There are special provisions in the Latvian Criminal Code against commercial sexual
exploitation of children.
These are provisions against the involvement of children in prostitution and child pornography. The child is also protected by other provisions in the Criminal Code.
Production, distribution and possession of child pornography is illegal.
The sanction for a perpetrator is imprisonment. The Criminal Code provides for treatment of the perpetrator only if the perpetrator has been diagnosed as mentally ill. The sanction for pimping and pandering is imprisonment.
Lithuania
There are both special administrative provisions and special penal provisions against the
involvement of minors in prostitution. There is a very wide range of sanctions for a
perpetrator. A perpetrator can be sentenced to up to 15 years' imprisonment. There is no
treatment of the perpetrators within the penal system. The sanction for pandering is
imprisonment.
The production and distribution of child pornography is illegal. The possession of child pornography is not legal if its aimed at selling or multiplying.
Norway
The Norwegian legislation does not contain any provisions concerning commercial sexual
exploitation of children in particular. Children are protected in this respect by other
provisions of the Penal Code. There are also provisions in the Broadcasting Act which
prohibits transmission of pornographic material which violates Norwegian law, child
pornography included.
The sanction for a perpetrator is imprisonment. The Penal Code does not provide for treatment of the perpetrator. Some prisons have established connections with treatment programs for people convicted of sexual child abuse. The same programs are also used in some units of services for prison inmates released on probation.
The sanctions for pandering or gaining financially from other people's prostitution are described in the Penal Code. Depending on the circumstances, the maximum sentence is five or two years' imprisonment.
It is a criminal offence to possess or import pictures, films, videocassettes or the like in which a person is, must be considered to be or is presented as being under the age of 16 and is shown in an indecent or pornographic manner. Publishing, offering for sale, hiring or in any other way attempting to disseminate pornographic material is punishable. Production of child pornography within national borders will at least imply a violation of section 196 of the Penal Code.
Poland
There are special provisions against prostitution in the Criminal Code. Prostitution by
adults or minors is not considered a crime or an offence. However, any other activity
related to prostitution i.e. pandering and procurement are punishable irrespective of the
age of the prostitute. Enticement or abduction of women and children for the purpose of
prostitution is also punishable even when there is consent from the abducted person. There
are other provisions in the Penal Code which aim at protecting children from sexual
exploitation. The sanction for a perpetrator is imprisonment. The Penal Code does not
provide for any treatment of the perpetrator but there is treatment for the perpetrators
within the framework of the general rehabilitation system.
There are no special provisions concerning child pornography in the Polish Criminal Code.
The general provisions concerning pornography state that production and distribution are
illegal but possession is legal.
Russia
Prostitution and all activity connected to prostitution are subject to administrative
measures. In 1997 it became illegal to trade in children. In July 1997 a Criminal
Proceeding Code based on priority of human values came into effect with special provisions
against discrimination of children and rape of minors. The punishment for pandering varies
from fines to imprisonment.
Distribution and advertising of child pornographic material is illegal. It is also illegal to produce and sell child pornography in the form of printed matter, film and videocassettes. Possession of child pornography is not covered by existing legislation. Sweden
Most penal provisions concerning sexual offences refer to offences committed against both children and adults. Child abuse, however, is generally viewed in a stricter light than the same crime committed against an adult person. The penal provisions are also intended to protect children from involvement in prostitution. It is for example illegal to purchase sexual services from a person under the age of 18.
The sanction against a perpetrator is imprisonment. Pandering and pimping are illegal.
Sexual offenders are being placed at prisons with special facilities for treatment. All condemned sexual offenders have to participate in a introduction course in order to motivate them to undergo therapeutic treatment. Such treatment is offered all offenders.
Today the production or manufacture of child pornography with the intention of spreading the material, and the spreading of child pornography are punishable offences.
In December 1997 the government introduced a bill on a constitutional amendment concerning child pornography. All handling with pictures of child pornographic characters are to be punishable. Possession, mediation, import and export of these kinds of pictures are therefor to be punishable. All child pornographic pictures - both pictures that show real child abuse and pictures made through computer technology are embraced by the prohibition. Drawings, paintings and other craftsmanlike produced pictures are not covered by the prohibition if the possessor has made them himself. A child is to be defined as a person who is aged under 18 or whose pubescence has not been completed. Today an image is deemed to be child pornography if the person pictured is not fully past the stage of puberty.
3.3 The child and court proceedings - procedural questions
Denmark
In principle the hearing of a witness shall take place directly in court during the court
proceedings. However when hearing a child under the age of twelve in cases concerning
sexual abuse, the courts have accepted that video recordings of the interrogation of the
child during the police investigation in the presence of the defence counsellor are being
shown instead of a regular hearing of the child.
Estonia
The Penal Code establishes that a minor witness, younger than 15 years of age, is to be
interrogated by the judge with the participation of a teacher and/or a psychologist, in
cases of need also with the participation of parents or other legal representatives. The
judge decides whether or not the child has to appear before the court. It is accepted to
show an hearing recorded on a video-cassette instead of bringing the child to the court
room. Whether the video material has to be prepared on the basis of an hearing led by a
specially trained police officer or a social worker who also mediates the question to
other authorities is, however, not clearly stated.
Finland
In court proceedings the child is represented by the person responsible for his care and
custody, his guardian, or if the guardian is a suspect another legal representative. The
court can assign a legal counsel to the child for the pre-trial investigation and for the
court proceedings. The court will decide whether a child under the age of 15 will be heard
as a witness or not. In cases of sexual abuse the child is not called to witness, but the
presentation of evidence is based on medical and other statements and hearing of experts.
The statement of the child may be recorded on audio tape or on video cassette.
Germany
On 13 March 1997 the Federal Government entered a bill for the protection of witnesses in
criminal proceedings (Protection of Witnesses Act). It provides that witnesses may be
questioned with the use of audio-visual media if they cannot be cross-examined during the
main proceedings. It applies most of all to witnesses who require protection, especially
child victims of crime, in order to minimise the stress.
Iceland
A regulation on interrogation procedures sets out detailed provisions on the legal rights
of arrested persons and police interrogation. Among other things, the regulation
stipulates that during the interrogation of witnesses under the age of 18, the parents or
another person enjoying the trust of the witness should be allowed to be present. A member
of the child welfare committee should also be given an opportunity to be present. As
regards the procedure of the interrogation, the regulation states that great consideration
should be shown when interrogating children under the age of 18 and that children should
be interrogated on their home turf if possible.
It is also specified that testimony shall be video-recorded or audio-recorded if possible
if the witness is the victim of a sexual crime. It is specified furthermore, that repeated
interrogation of children is to be avoided to the extent possible in such circumstances.
Trials in cases concerning sexual abuse are always held behind closed doors. The judge may
also decide that the defendant be removed from the courtroom during the testimony of the
victim or other witness. Children's testimony on video-films is admissible in court.
Latvia
A minor who is accused is, if it is necessary, cross-examined in the presence of a
pedagogue or legal representatives. If the child is a witness in a criminal case, he then
gives his evidence in the presence of his parents and a children rights protection
inspector. If the minor has not yet attained 16 years of age, the presence of a legal
representative, a pedagogue or a psychologist is compulsory.
Lithuania
The child has to appear before the court. There are no age limits. The child should have a
representative during the court hearing. The court hearings of sex crimes are often held
behind closed doors.
Norway
As a principal rule, children under the age of 14 shall not have to appear in court in
cases of sexual offences. Testimony from children in such cases shall be given outside the
main hearing. During the judicial examination, the judge may appoint a specially qualified
person to assist with the examination. This examination is videotaped or audio taped and
written down to be used as evidence during the trial. Witnesses or for example the lawyer
of the accused person may watch the hearing through a one-way mirror, but are not allowed
to ask questions directly to the child.
Poland
If it is necessary for a minor to be heard, the hearing should be held in conditions
resembling a normal situation for the child, if possible, in the minor's place of
residence. Repeated interrogation concerning the same facts or facts stated by other
reliable evidence should be avoided. A psychologist with the relevant professional
background should be present at the hearing. The child's parents' presence is also
allowed. A written record of the hearing is drawn up, which, however, does not constitute
sufficient evidence in court. Any person, including minors, summoned to give witness in
court is obligated to appear and give evidence, and to answer any question asked by either
party, unless overruled by the court.
There is only one possibility to protect the child's interest in court provided for by the Polish legal system. It is the right to request that the court gives its consent for the child to be heard in the absence of the defendant in the court room. The Polish legal system does not provide for any special treatment to be accorded to minors victims of sexual offences, or, ipso facto, for any special procedures intended to protect under-age victims of such offences.
The use of a videocassette with an interrogation of a child as evidence in court will become permitted under the new Code of Court Procedure to come into force on January, 1 1998.
Russia
There are special provisions regarding the hearing of a child during investigations. The
child has the right to participate during judicial or administrative investigations. It is
compulsory to take notice of and to listen to the statement of a child who have reached
the age of ten.
There are special provisions regarding the summoning of a witness under the age of 16 and
how to interrogate a witness under 16. It is compulsory that a legal counsellor
participates during the interrogation.
Sweden
In principle the hearing of a witness shall take place directly in court during the court
proceedings. The interrogation during the preliminary investigation is made by a specially
trained police-officer who is chosen for his or her special abilities and most often
he/she is alone with the child. The interrogation of a child under the age of 15 is
documented on a videotape. The interrogation can be watched simultaneously in a connected
room by the prosecutor, defence lawyer, social worker, the lawyer of the victim or a
psychologist. The prosecutor and the defence lawyer have the possibility to ask the
police-officer to put supplementary questions to the child.
In court the judge decides whether the video documented
interrogation should be shown or if the child has to be present for supplementary
questions. The suspected perpetrator must in the latter case sit in another room and
listen to the interrogation via a loudspeaker.
3.4 Dual criminality-extraterritorial jurisdiction
Denmark
Only acts that are punishable under Danish law can be prosecuted at a Danish court. Acts
that are committed within an area acknowledged by international law, have to be punishable
also under the country's legislation where the act was committed in order to be prosecuted
in Denmark.
Estonia
There is no requisite of dual criminality to Estonian law.
Finland
On 19 September 1997 the Government presented a bill to Parliament amending the Penal Code
by abolishing the requirement of the so-called double-criminality in sexual crimes against
children. According to the bill a Finnish citizen or a person residing permanently in
Finland can be sentenced for sexual crimes against children even though the act is not
punishable in the criminal code of the state where the act was committed.
Germany
German Criminal Law is applicable to crimes of sexual abuse of children committed by
German citizens residing in Germany, even if the act is not punishable in the country
where it is committed. This provision will be amended by the 6th Law of Penal Reform
coming into effect later this year. In the future all crimes of sexual abuse of children
committed by Germans will be punishable under German Law, regardless of their residence
and the laws in effect where the perpetrator acted.
These rules don't apply to foreigners residing in Germany. Crimes of sexual abuse committed by foreigners in a foreign country can only be prosecuted in Germany, if the act was punishable in the country where it was committed. The perpetrator is not extradited.
Iceland
In Iceland there exists a dual criminality requirement.
Latvia
There is no requirement of dual criminality according to Latvian law.
Lithuania
A citizen or a person residing permanently in Lithuania can be prosecuted in Lithuania for
a sexual crime against a child committed in a country where the act is not punishable. For
other persons the rule of dual criminality is valid.
Poland
In Poland the requirement of dual criminality exists.
Norway
As regards sex crimes, the crimes in sections 192-195 and 206-109 of the Penal Code are
punishable by Norwegian law when committed by a Norwegian citizen or a person domiciled in
Norway in a country where the act is not punishable. Other sex crimes committed in another
country are punishable in Norway according to the principle of dual criminality.
Sweden
Swedish courts today have great possibilities of convicting a person who has committed a
crime abroad, provided the crime is also punishable in the country where it was committed
(the dual criminality requirement). Sweden can convict, not only its own nationals but
also aliens domiciled in this country. Aliens not domiciled in Sweden but nevertheless
residing in Sweden can also be convicted of such crimes. These rules are generally
applicable and thus apply both to sexual offences against children and to other crimes.
Where certain crimes are concerned, conviction by a Swedish court is possible even if the offence is not punishable in the country where it was committed. This applies to certain typically international crimes and to all aggravated crimes, i.e. crimes, such as aggravated rape, for which the minimum penalty is not less than four years' imprisonment.
It is not possible, on the other hand, for Swedish citizens to be extradited to another country for criminal proceedings or serving of sentences there. This principle is waived for extradition to the other Nordic countries and to certain international war crimes tribunals. A convention on extradition to other Member States has been worked out within the European Union. In connection with Sweden's accession to that convention, it will be considered whether Sweden should also open the door to extradition of its own nationals within the EU.