Τρίτη 3 Οκτωβρίου 2017


The possession of child pornography in Europe

The possession of child pornography
The possession of child pornography
The European Framework Decision

In an attempt to harmonize the issue of child exploitation within Europe, the Council of the European Union adopted Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography. Following the Council Joint Action 97/154/JHA of 24 February 1997 concerning action to combat trafficking in human beings and sexual exploitation of children as well as Council Decision 2000/375/JHA of 29 May 2000 to combat child pornography on the internet in which a call for legislative action against sexual exploitation of children and child pornography, including common definitions, charges and penalties, are included, this Framework Decision 2004/68/JHA (hereafter: the Framework Decision) addresses the divergence of legal approaches in the Member States thereby contributing to the development of efficient judicial and law enforcement cooperation against sexual exploitation of children and child pornography. The purpose of the Framework Decision is to address the issue by a comprehensive approach in which the constituent elements of criminal law common to all Member States, including effective, proportionate and dissuasive sanctions, form an integral part together with the widest possible judicial cooperation.

 

In order to achieve those objectives at European level, the Framework Decision confines itself to the minimum required in accordance with the principles of subsidiarity and proportionality. It thereto does not go beyond what is necessary for that purpose. Thus, penalties must be introduced against the perpetrators of such offences which are sufficiently stringent to bring sexual exploitation of children and child pornography within the scope of instruments already adopted for the purpose of combating organized crime. The specific characteristics of the combat against the sexual exploitation of children must lead Member States to lay down effective, proportionate and dissuasive sanctions in national law.

 

It is thus allowed for member States to make their laws stricter than the Framework Decision, but these may not be in any circumstances less strict than the provisions there in. That does not mean however, that the punishments for example may be disproportionately high and that these punishments go beyond what is necessary for the purpose of the Framework Decision.

 

According to article 12 of the Framework Decision, the provisions there of had to be implemented by the Member States by 20 January 2006 at the latest. This contribution attempts to examine in how far the harmonization of combating child pornography has been successful. The most interesting issues referred to in the Framework Decision will be discussed and a comparing study will be provided for in order to draw a conclusion as to the result of the Greek implementation of the Framework Decision.

 

Possession of Child Pornography

 

The first interesting feature of the Framework Decision is that it includes the harmonisation of possession through means of computer systems and/or internet of child pornography as an offence concerning child pornography under Article 3 (d) of the Framework Decision. The article states that ‘each Member State shall take the necessary measures to ensure that the following intentional conduct whether undertaken by means of a computer system or not, when committed without right is punishable; (a) production of child pornography, (b) distribution, dissemination or transmission of child pornography; (c) supplying or making available child pornography and (d) acquisition or possession of child pornography. The last inclusion of possession is quit interesting since this, in some cases, was a new feature for certain Member States. Even more so, when one takes the definition of ‘child pornography’ as enshrined in Article 1 (b), specifically under (iii) into account as discussed below.  

 

‘Realistic images of a non-existing child’

 

Another, in connection with the previous, interesting aspect of the Framework Decision can be found in Article 1(b). This Article which harmonizes the definitions for the purpose of the Framework Decision, defines ‘child pornography’ as pornographic material that visually depicts or represents (i) a real child involved or engaged in sexually explicit conduct, including lascivious exhibition of the genitals or the pubic area of a child; or, (ii) a real person appearing to be a child involved or engaged in the conduct mentioned in (i). It continues by also including ‘realistic images of a non-existent child’ involved or engaged in the conduct mentioned in (i) in the term of child pornography under point (iii) of Article 1(b).

 

One may question whether this last definition should be included as a pornographic material under this specific Framework Decision since the purpose of the Framework Decision is to combat sexual exploitation of children and child pornography. It clearly aims to protect children from being involved in such activities. When the material solely visually depicts or represents a ‘realistic image’ of a ‘non-existing’ child, one may argue that in such case no child has actually been harmed or victimized and that therefore no real person needs to be protected from these activities. Following this line of reasoning, this definition would go beyond the sphere of the Framework Decision concerned.

 

On the other hand however, it can be and has been argued that a person who enjoys the visually depicts of a ‘real image of a non-existing child’ might be triggered to commit more serious acts, such as acts related to ‘real’ child pornography or even to sexual abuse of a child. It has also been pointed out that child abusers use such depicts to convince the child to perform conducts as shown by these depicts by giving the child the wrong impression that this kind of behavior or acts are completely normal (so-called ‘grooming’). When reading the provision in this way, it can be argued that it is the future existing victims that are the ones actually protected by this provision and the criminalization of the act concerned thus entails a preventive measure.

 

That the purpose of including the real image of a non-existing child in the definition of child pornography constitutes a preventive measure becomes even more probable when one takes Article 5 (Penalties and aggravating circumstances) into account. Section 4 of this Article reads that ‘each Member State may provide for other sanctions, including non-criminal sanctions or measures, concerning conduct relating to child pornography referred to in Article 1(b)(iii). The ‘other non-criminal sanctions’ may as well include preventive measures in order to avoid graver crimes. This, however, does not convince a lot of critics, as has been examined in the doctrine concerned, that an act is a crime solely on the idea that this particular act could possibly harm children in the future and not because the act itself actually has harmed anyone. Society on the other hand, seems to fully agree with this provision.

 

Possible exceptions

 

The Framework Decision obviously acknowledge the less seriousness of the act in Article 3 (2) (c). This Article establishes the possibility for Member States to exclude from criminal liability conduct relating to child pornography referred to in Article 1(b)(iii) ‘where it is established that the pornographic material is produced and possessed by the producer solely for his or her own private use, as far as no pornographic material as referred to in Article 1(b) (i) and (ii) has been used for the purpose of its production, and provided that the act involves no risk for the dissemination of the material’. For the production and possession of pornographic material in which real children are involved, the inclusion of exceptions are only allowed when; a real person appearing to be a child turned out to be in fact, 18 years old or more at the time of depiction (Art. 3 (2) (a)) or if the children concerned have reached the age of sexual consent, are produced and possessed with their consent and solely used for their own private use (Art.3 (2) (b). The exception as laid down in Article 3 (2) (c) however, is only then allowed when it concerns realistic images of a non-existing child. Thus, the exceptions allowed clearly show that the acts concerning this last category are obviously considered less severe than in case real children are involved.    

 

Ultimately, criminalizing the act seems to be the result of weighting the pro’s and the con’s against each other in which the protection of a child that could possibly be harmed in the future obviously out weighted the disadvantage of the person (or monster in the eyes of most people) enjoying such depicts.  However, whether the act can be excluded from criminal liability by a provision as laid down in Article 3 (2) (c) or whether the penalty concerned constitutes solely a non-criminal sanction or measure depends on the Member States and how they implement the provisions of the Framework Decision into their national legal orders.

 

Penalties and aggravating circumstances          

 

In Article 5, an attempt to harmonize even the penalties for the offences has been made by stating (under section 1) that; ‘subject to paragraph 4 (as discussed above), each Member State shall take the necessary measures to ensure that the offences referred to in Article 2, 3 and 4 are punishable by criminal penalties of a maximum of at least between one and three years of imprisonment’. The possession of child pornography falls within the scope of this Article. There are however no aggravating circumstances included in this paragraph that are considered reasons for a higher penalty for possession of child pornography since Article 5(2) declares that the Member States are obliged, and regarding the acts concerning child pornography may, take necessary measures to ensure that the acts as listed in the following subparagraphs thereof are punishable with criminal penalties of a maximum between five and ten years of imprisonment. The act of possession of a real or realistic pornography is however not listed in these subparagraphs from which it might be concluded that there are no aggravating circumstances allowed for this particular act.

 

There are however aggravating circumstances included in Article 5 regarding the other acts concerning child pornography as listed in Article 3 (1) (a), (b) and (c). These aggravating circumstances consist of the events in which 1) the offender has deliberately or by recklessness endangered the life of the child, 2) the offence involve serious violence or caused serious harm to the child, and 3) the offences are committed within the framework of a criminal organization within the meaning of Joint Action 98/733/JHA (irrespective of the level of the penalty referred to in that Joint Action). According to Article 1 of the relevant Joint Action ‘a criminal organization shall mean a structured association, established over a period of time, of more than two persons, acting in a concert with a view to committing offences which are punishable…’.  No other aggravating circumstances are included regarding child pornography and, as mentioned, these measures may, but do not have to be taken by the Member States.

 

In order to determine whether the Framework Decision has actually harmonised the subject matter, the laws on child pornography in three Member States (Greece, Germany and the Netherlands) will be examined and compared with the laws of the other two countries and with the provisions of the Framework Decision. In this research, the specific elements of the ‘inclusion of possession’, the definition of ‘child pornography’ and the ‘aggravating circumstances’ as included or not and the terminology thereof will be examined in detail. As to the implementation of the provisions as laid down in the Framework Decision, special attention to the implementation in Greece will be given by comparing the old and the new relevant Greek provisions as amended after the Framework Decision came into force.  

 

The ‘old’ Greek law

 

The relevant Greek provision is Article 348a of the Greek Criminal Code (GrCC). This provision which was amended later (by law 3625/2007) and was in force until the 24th of December 2007 stated in section 1 thereof that; ‘whoever, with the intention to gain benefit, prepares, possesses, obtains, purchases, transfers, traffics, supplies, sells or makes available by any other means, the circulation of child pornographic material, will be punished with imprisonment between minimum 1 and maximum 5 years and with a fine between fifty thousand and one hundred thousand euros. According to section 2 of the Article concerned, ‘child pornographic material’ includes ‘every description of a real or fictitious impression, in every kind of medium, of the body of a minor with the intention of sexual arousal, as well as the recording or imprinting, in any kind of medium, of a real or simulation of, or fictitious indecent act that is carried out for the same purpose, by or with a minor. In this provision, no separation of categories of the acts is included. Nor are there any exceptions permitted by the provision. In section 3 of the Greek law, some aggravating circumstances are determined which mainly touch upon (the abuse of) the innocence of the child concerned and the possible (physical) harm inflicted on the child (my translation).

 

This old Greek provision was already more or less in accordance with the Framework Decision as to the punishable acts concerned, including possession of child pornography. The definition of ‘child pornography’ was partly in line with the Framework Decision since it included the ‘fictitious impression’ and ‘the simulation of’ under which the ‘realistic image of a non-existing child’ could fall in the scope there of. On the other hand, it speaks of ‘the intention of sexual arousal’, something that is not formed as a condition in the Framework Decision for the obvious reason that such an intention is very hard to prove.

 

The aggravating circumstances of Article 5 of the Framework Decision are also more or less, the same as in section 3 of the Greek provision since it does include the aggravating circumstances of the events in which the act committed was combined with violence, physical injury or harm of the child. No special provision was included, however, regarding the aggravating circumstance in which the punishable acts under the first paragraph are committed within the framework of a criminal organization.  

 

Finally, there is one more important inconsistency between Article 248a (1) GCC and the Framework Decision. This inconsistency lies in the fact that the acts as listed in section 1 according to the old Greek provision is only punishable when the act is committed with the intention of gaining profit. Such a condition is not mentioned in the Framework Decision. The reason that this condition constitutes an important inconsistency is that according to the old Greek law, a person who committed one of the acts as listed in Section 1 of Article 248a for personal reasons was not punishable and was thus free to commit all of the acts concerned as long as he/she did not gain any profit from committing these acts. This condition obviously goes against the purpose of the Framework Decision, namely the protection of the child.

 

The ‘new’ Greek law

 

This inconsistency has therefore been eliminated by the new Article 248a GrCC as amended by law 3625/2007 which entered in to force at the 24th of December 2007. This Article has been altered in a way that is much more in conformity with the Framework Decision and has become more specific. In this new Article the phrase ‘with the intention to gain profit’ has been replaced by ‘intentionally’ which is in line with Article 3 of the Framework Decision since it speaks of ‘intentional conduct’. Furthermore, some more acts were incorporated in section 1 of the Greek provision, such as ‘produces’ instead of ‘prepares’, ‘distributes’, ‘publishes’, ‘exposes’, ‘imports in or exports from Greece’, ‘offers’ and ‘delivers or transmits information concerning the execution of the crimes as mentioned in this Article’. The acts of ‘trafficking’ and ‘making available’ were eliminated. However, all the acts remain to fall within one and the same category. The sentence as to the length of possible imprisonment has not been changed; the fine however was fixed to ten thousand euros instead of an amount between fifty thousand and a hundred thousand euros. Still, no exceptions are provided for under this new Article.

 

As to the definition of child pornography, the term of ‘intention of sexual arousal’ has been replaced by the phrase ‘that obviously triggers sexual arousal’. This phrase is more suitable. The wordings are closer to the terms in Article 1 of the Framework decision that speaks of ‘involved or engaged in sexually explicit conduct’ and more importantly the condition of ‘intention’ of sexual arousal has been eliminated. Furthermore, the phrases ‘or part of a minors body’ and ‘by ways of electronic or other kind of medium’ have been included in conformity with the Framework Decision. Which part of the body is referred to, has however not been specified as it has in the Framework Decision that speaks of ‘the genitals or pubic area of a child’. Nevertheless, this does not entail an inconsistency with the Framework Decision since the phrase ‘or part of the minors body’ entails a broader term than the Framework Decisions phrase since any part of the body, according to this phrase, can entail a ‘lascivious exhibition’.

 

A third modification can be found in the last section of the Article in which the aggravating circumstances are determined. First of all, in case the act resulted in the death of the child, a life imprisonment has been included into this section. This aggravating circumstance has however not been incorporated in Article 5 of the Framework Decision. Secondly, it seems that the Greek provision has used the possibility provided for by the Framework Decision, to include the aggravating circumstances thereof. However, since the to child pornography related acts have not been categorized, the same aggravating circumstances apply to the sole possession of child pornography. The final, and most interesting, added aggravating circumstance in section 3 of the Greek provision entails that the person who makes a profession or a habit of committing one of the acts prescribed in the first two sections is punishable with a maximum imprisonment of ten years and a fine between fifty thousand and one hundred thousand euros. Due to the fact that possession of child pornography has been included in these first two sections and since possession of a certain amount of child pornographic material could be seen as a committed act as a habit, the person who commits this act could be sentenced for ten years of imprisonment. As explained before, Article 5 of the Framework Decision established a distinction between the ‘other acts’ as mentioned in Article 3 of the Framework Decision and the act of possession. According to the Framework Decision, an aggravation of the penalty when a person possesses child pornography as a profession or a habit does not occur since the action of possession has been excluded from aggravating circumstance in the meaning of Article 5. Whether the terms ‘as a profession or as a habit’ fall within the meaning of ‘criminal organization’ as defined in the Joint Action, as referred to in the Framework Decision is discussable. It goes beyond the scope of this article to examine this subject-matter in detail. In short however, it can be arguable noted, that the phrase ‘as a profession’ is not the same as ‘committed within the framework of a criminal organization’. Obviously, this applies even more so to the phrase ‘as a habit’.  

 

Finally, an unusual aggravation has been included in section 2 of the Greek provision. In the event where the acts as listed in Article 248A (1) of the Greek Criminal Code have been committed through an electric computer device or the internet, the punishment can include an imprisonment from two till five years and a fine of the amount between fifty thousand and three hundred thousand euros. Quite an aggravation from the one till five years imprisonment and a fine with the amount of ten thousand euros as is the punishment fixed for the same acts in which no computer and/or internet has been used. The reason for this aggravation might lie in the fact that distributing, circulating and obtaining child pornographic materials is made much easier, more effective and faster by the use of computers and internet  than an ordinary picture or video for example. This does not, however, explain the aggravation of possession by means of computers or internet. In case of possession, the use of an electronic computer and/or internet does not provide for a bigger advantage for the person possessing materials by, for example, having pictures saved in his/her computer or a greater disadvantage for the children victimized by that act for that matter. Besides, the Framework Decision does not include such an aggravation in its Article 5. It merely states, in Article 3 thereof, that; ‘each Member State shall take the necessary measures to ensure that the following intentional conduct, whether undertaken by means of a computer system or not, when committed without right is punishable…’ Thus, the Member States are obliged to ensure that the acts committed through the use of a computer or internet also fall within the scope of the crime. From nowhere throughout the Framework Decision, however can it be concluded that this should be understood as an aggravating circumstance.

 

The question of ‘disproportioned measures’

 

As pointed out earlier in this article, the provisions of the Framework Decision provide for minimum obligations. This means that the Member States are allowed to provide for stricter, but in any case not less strict, rules than the ones provided for in the Framework Decision. Thus, the Greek provisions are, at first sight, in conformity with the Framework Decision since it merely provides for stricter laws. This minimum approach of the Framework Decision however, does not mean that all stricter laws are acceptable. According to point 10 of the Preamble of the Framework Decision, the specific characteristics of the combat against the sexual exploitation of children must lead Member States to lay down effective, proportionate and dissuasive sanctions in their national laws. So how can we determine whether the inclusion of aggravation circumstances like ‘the making a profession or habit of committing an act concerned’ and ‘the use of an electronic computer and/or internet’ are disproportionate measures?

 

According to the established case-law of the European Court of Justice (ECJ) this is the case when the measures are not necessary for the accomplishment of the aim pursued and in case there are other means in which these aims can be reached which do not go as far as the measures used. One may argue that the aggravating circumstances that Greece has incorporated in its national child pornography law go beyond what is necessary in order to accomplish the purposes this law seeks to reach. In order to establish whether this is indeed the case, one might take a look at how the specific provisions have been implemented in other Member Sates since this can provide for clearance. When comparing the Greek provisions with other national provisions concerning the subject-matter, it can easier be determined whether the Greek law in question is disproportional or not. If other Member States have included the same kind of aggravating circumstances, for example, this could be a sign that these kind of aggravating circumstances are usual and the chance is generally smaller for such measures to be considered as disproportional when other Member States have included the same measure in their national laws implementing the same Framework Decision.   

 

The Dutch law

 

The relevant Dutch provision is based on certain international instruments (such as Framework Decision 2004/68/JHA) and therefore shows great similarities with the relevant German Article 184b of the German Criminal Code (GCC) (Strafgesetzbuch). The Framework Decision concerned specifically obliges the Member States to ensure that the acts there in are punishable under the national laws. This also includes that child pornographic materials can be ‘virtual child pornography’ which has been included by as well the Dutch as the German Criminal Code.

 

The relevant Dutch law is Article 240b of the Dutch Criminal Code (DCC), (Wetboek van Strafrecht). This Article includes the offences of; ‘distribution’, ‘making publicly available’, ‘obtaining’, ‘importing’, ‘transporting’, ‘exporting’, or ‘possessing’ a visual depict or a medium which contains such a visual depict, of a sexual behavior in which a person who has apparently not reached the age of 18 years old is involved or apparently involved. These offences are punishable with a maximum imprisonment of four years or a financial fine of the fifth category. Like in the Greek provision, all acts fall within the same category. Possession has thus been included with the more severe acts. Furthermore, this Dutch provision does not provide for any kind of exception. The law concerned has been altered on several occasions as a result of rulings of the Supreme Court and  international instruments.

 

The act of possession was included in to the law after the Dutch Supreme Court (Hoge Raad) had decided that a single picture that represents a sexual behavior in which a person who has apparently not reached the age of 16 (now 18) years old should fall within the meaning of the then punishable act ‘stocking’. After this decision, in 2002, the legislator included the term ‘possession’ in to Article 240b DCC. In that same year the age of the child concerned increased from 16 to 18 years old and also ‘virtual child pornography was explicitly declared punishable by adding the phrase of  ‘or apparently involved’ from which can be understood that the ‘realistic images of a non-existing child’ falls within the scope of Article 240b DCC.

 

The definition of ‘child pornography can, at first sight, not be found in the Dutch provision. There are however, clarifications of the definition given in the explanatory note of that provision and by the rulings of the Dutch Supreme Court (Hoge Raad (HR)). Accordingly, the visual depicts in the provision concerned should be understood as depicts of someone who has apparently not reached the age of 18 years old in such a conduct that apparently intents to trigger sexual arousal. It is thereby not necessary that there is more than one person included in the depicts and the way in which and how the genitals of a minor have been depicted can be understood as a sexual conduct (HR 4 December 1990, NJ 1991, 312, HR 20 January 1998, NJ 1998, 336 and HR 22 March 2005, NbSr 2005, 209. The position that the child takes depicted in the concerned depict can also be seen as a conduct that apparently intents to trigger sexual arousal according to a decision of 6 March 1990 taken by the Supreme Court. The main determining factor lies in the appreciation of whether the atmosphere represented by the depict or the publication thereof can be determined as ‘harmful’ for the child depicted therein. (HR 26 September 2000, NJ 2001, 61 and HR 10 June 2003, NbSr 2003, 287). As mentioned earlier, virtual child pornography has been included in the definition thereof by adding the phrase ‘or apparently involved’. These rulings indicate that the phrase of the Framework Decision ‘exhibition of the genitals or the pubic area’ is included in the definition. It goes even further since the mere position of the child can establish that a certain depict constitutes child pornographic material. One of the lower courts of the Netherlands has recently declared that the person depicted in such virtual child pornographic depict must look like a real child. Thus, an act related to virtual child pornography is only then punishable, when it looks like a true-to-life-event. One may argue that this is not the same as ‘a realistic image of a non-existing child’ since realistic does not mean the same as true-to-life. ‘Realistic image’ might be more easily established than ‘true to life’. In that case, the provision as interpreted by the Supreme Court is not in conformity with the Framework Decision since it does not reach the minimum standards called for there in.

 

The Dutch law does not include the aggravating circumstances regarding the death of, or harm inflicted on the child. The fact that the penalty consists of a maximum imprisonment of 4 years might indicate that when determining the penalty imposed on the offender, these kinds of circumstances are taken into account by the prosecutor and the court. The Dutch provision, on the other hand, does include the aggravating circumstance of the event in which the person concerned makes a profession or a habit of committing one of the crimes as listed in the first section as laid down in section 2 of Article 240b. In this case, the person will be punished with imprisonment of maximum eight years or a financial fine of the fifth category. The last amendment to the Dutch law concerning child pornography has been made in 2009. The maximum punishment for committing one of the acts as listed in first section Article 240b DCC as a profession or a habit became with this last amendment eight years instead of the previously six years. The purpose of this amendment was to provide the police with more competences regarding investigation measures. This means that also possession is, like in the case of Greece but not as determined in the Framework Decision, subject to this aggravating circumstance. The issue on whether the phrase ‘as a profession or habit’ falls under the scope of the term ‘criminal organization, has already been discussed under the section ‘The new Greek law’.

 

Finally, unlike in Greece, there is no Dutch provision that increases the punishment when an electronic computer or internet has been made used of for committing the act. There is however, at the moment, discussion on the proposal of a new law which prohibits the act to obtain oneself access to child pornography. This law entails the act in which the person concerned clicked a hyperlink on the internet of which he/she knows or could have known that it accesses a site on which child pornography is displayed. The proposed law, however, has already been subject to a great deal of criticism.

 

The German law
The relevant German provisions can be found in Article 184b and c of the German Criminal Code (GCC), (Strafgesetzbuch). This Article states in section 1 that ‘whoever 1. ‘disseminates’, 2. ‘publicly displays’, ‘presents’, or ‘otherwise makes accessible’; or 3. ‘produces’, ‘obtains’, ‘supplies’, ‘stocks’, ‘offers’, ‘announces’, ‘commends’, or ‘undertakes to import or export’ in order to use them or copies made from them within the meaning of Nos 1 or 2 above or facilitates such use by another pornographic written materials (section 11 (3)) related to sexual activities performed by, on or in the presence of children (section 176 (1)) (child pornography) shall be liable to imprisonment from three months to five years’. Paragraph 2 of the same Article states that the same penalty incurs to whoever undertakes to obtain possession for another of child pornography reproducing an actual or realistic activity. When the person concerned, however, undertakes to obtain possession (for oneself) of child pornography reproducing an actual or realistic activity or possesses the written materials thereof shall be liable to imprisonment of maximum two years or a fine according to paragraph 4 of Article 184b GCC.
Thereby, the German provision is the only provision, out of the three examined, which explicitly categorises the acts and specifically places possession (for oneself) under a different category than the other acts of Article 3 of the Framework Decision. It goes further than the Framework Decision however in the sense that it also criminalises the act of solely ‘undertaking to obtain’ possession. Furthermore, it constitutes a smaller maximum amount of years of imprisonment as penalty for committing that crime. This, even though not specifically called for in the Framework Decision, does not constitute for an inconsistency therewith, since Article 5 of the Decision states that all the acts as listed in Article 3 there of should be punishable with a criminal penalty of a maximum of at least between one and three years. Now that the German penalty for the act of possession is still punishable with a criminal penalty of an imprisonment of maximum 2 years or a fine, this obligation has been fulfilled. If the penalty consisted out of a non-criminal sanction or measure, however, this would still be the case according to the elsewhere discussed Article 5(4) of the Framework Decision when the act concerned virtual pornography.
The German provision also differs from the Dutch and Greek one regarding exceptions incorporated in the provision concerned since the German law does provide for some exceptions. According to Article 184b (5), the sections regarding the acts of undertaking to obtain possession for another (2) or for himself (4) shall not apply to acts that exclusively serve the fulfilment of lawful official or professional duties. Even though this exception is not provided for in Article 3 of the Framework Decision, it is nevertheless allowed on the ground that the act of undertaking to obtain possession is not included in the forbidden acts of the same Article 3. Therefore, the German provisions goes further than the Framework Decision by including this act as punishable acts and may provide for any exceptions it chooses to. According to Article 184c (juvenile pornography) (5), the same exception applies when the same act concerns juvenile pornography (the distinction between child and juvenile pornography will be discussed more elaborated below). Finally, section 4 of Article 184c (4), a person that undertakes to obtain possession of juvenile pornography reproducing an actual or realistic activity shall not be liable to imprisonment when the acts of persons produced by them while under eighteen years old of age and with the consent of the persons therein depicted. Here the same applies as to the fact that this act has not been included in the listed acts of Article 3 Framework Decision.
The German law on child/juvenile pornography has also been amended several times in order for it to be in conformity with the relevant international instruments. In April 2004, the acts concerning child/juvenile pornography became a crime instead of an offence. Where the punishment for the acts, as listed in paragraph 1 (before amendment) before this date was fixed at a maximum of 1 year of imprisonment became after this date an imprisonment of a maximum of 5 years. At 5 November 2008 the law was amended again in order to transpose Framework Decision 2004/68/JHA, thereby also taking account of the legislative requirements resulting from the optional protocol of the Convention on the Rights of the Child concerning the sale of children, child prosecution and child pornography. The, for transposing the Framework Decision, relevant changes that had been made were the following; rewording Article 184b (1) GCC in order to cover the ‘provocative exhibition of children’s sexual organs’ and the introduction of the criminal offences of Article 184c GCC (juvenile pornography).  
As to the definition of child pornographic materials, the German provision specifically distinguishes juvenile pornography (which involves children between the ages of 14 till 18 years old) from child pornography (which involves children under the age of fourteen). The first category is regulated by a separate provision, namely Article 184c. The same acts are punishable as in Article 184b, but the penalties concerned are distinctively lower than when the acts involve children under the age of fourteen. As previously mentioned, an exception has been incorporated concerning the undertaking of obtaining possession of juvenile pornography while such an exception has not been incorporated regarding child pornography. Obviously, the reason therefore lies in the idea that a child can not give its ‘real’ consent for such activities. Arguably, the same can be true for a fourteen year old, although we can not possibly deny that there is a difference between the sexual consent of a child and the one of a teenager. Even though the maximum criminal penalties inflatable upon the committers of acts relating to juvenile pornography are still in line with ‘the maximum imprisonment of between 1 and 3 years’ punishments that the Framework Decision calls for of all acts of pornography involving children below the age of 18, it nevertheless can not be in conformity with the (purpose of) the Framework Decision to define child pornography as pornography only including children below the age of 14. The term ‘child pornography’ has been specifically defined by the Framework Decision itself and it does not seem practical, and probably will be proven not to be practical in the future, that the German provision has defined the same ‘harmonised’ term differently.  
As to the other elements of the definition, namely the exhibition of the body of the child, the sexual conduct and the virtual child pornography, leaving aside the aforementioned distinction between child and juvenile, the following can be observed; sexual conduct according to the German law involves the sexual activities performed by, or in the presence of children. Article 184g declares that sexual activity shall only be those which are of some relevance in relation to the protected legal interest in question. As already mentioned, the German law has been amended in order for the term child pornography to include the ‘provocative exhibition of children’s sexual organs’. The pubic area can also be read to be covered by the German law, since it can be argued that this is of relevance in relation to the protected legal interest in question, which is the protection of the child.  Finally, the ‘real image of a non-existing child’ can be read in sentence ‘reproducing an actual or realistic activity’ that has been included in both Article 184 a and b of the German Criminal Code.
The terminology in general seems to be more or less in line with the Framework Decision. Arguably, it even goes further since no actual sexual conduct of the child itself is necessary. The conduct performed in presence of the child suffices. Article 184g GCC does however state that in this case the child has to actually observe the sexual conduct. Furthermore, it is therefore assumable, since this is not specifically defined in the German law as such, that the definition of sexual conduct includes the position taken by the child as is the case, in for example, the Dutch law. This can be assumed since generally the German law has a broad definition of child pornography which includes images of all real or fictional people who either are under the age of 18 or who appear to be below 18 to an ‘average viewer’. Generally, the German Criminal Code does not define pornography in general. This lies in the fact that the German legislator has decided that the concept is subject to prevailing moral attitudes. Pornography can however also include sound and text. On the other hand, a definition to the phrase ‘written material, has been provided for in Section 11 (3) of the Criminal Code, according to which ‘audiovisual media, data storage media, illustrations and other depictions shall be equivalent to written material in the provisions which refer to this subsection’.
As to the aggravating circumstances of Article 5 of the Framework Decision, the aggravating circumstances listed therein concerning the acts regarding child pornography when the offender deliberately or by recklessness endangered the life of the child and the offences involve serious violence or caused serious harm to the child, are not included in to the German law. Such aggravating circumstances occur only in the event of child abuse under Article 176a (Aggravated child abuse). These aggravating circumstances are not included under the Article(s) on child/juvenile pornography. As already pointed out, this however does not create an inconsistency with the Framework decision since Article 5 (2) (c) solely states that these aggravating circumstances may apply to the acts regarding child pornography.
The German provision does contain, however, an aggravation of the punishments when the acts committed as listen in paragraphs 1 and 2 of both sections b and c of Article 184 are committed on a commercial basis or as a member of a gang whose purpose is the continued commission of such offences and the pornography reproduces an actual or realistic activity. When it concerns child pornography the penalty shall be imprisonment of six months till ten years and in the case of juvenile pornography this will be three months till five year. The first part of the sentence can be understood as ‘committed as a profession’ and the second part as ‘committed as a habit’. Consequently the same question (like with the other two national provisions discussed in this paper) arises as to whether the terms ‘as a profession or as a habit’ fall within the meaning of ‘criminal organization’ as defined in the Joint Action and as referred to in the Framework Decision’. On the other hand, the German law has made this aggravating circumstance only then applicable when the act committed is one of the acts listed in paragraphs 1 and 2 of Article 184b and c. Thus, this aggravating circumstance can not occur when it concerns the act of possession (for oneself). leaving the terminology used aside, this is in conformity with Article 5 of the Framework Decision when
Finally, no aggravating circumstance in the case electronic computers or internet has been used for committing the acts concerned can be found in the German law on child/juvenile pornography. It merely, like the Dutch law, forbids the same punishable acts when theses are committed through the use of computers and/or internet. Nevertheless, Germany has gone quit far in its legislation on child/juvenile pornography and the internet since it recently adopted an act on blocking access to child pornography content in communications network. A measure that has been greatly criticized since opponents believe that this measure entails a violation of freedoms, like the freedom of expression, as enshrined in the European Convention of Human Rights.
Evaluation
There are three main elements of the Framework Decision regarding the possession of child pornography that have been discussed as to how they have been implemented in the Greek, Dutch and German law. These are; (1) the punishable act of possession of child pornography and the maximum punishment fixed therefore, (2) the definition of child pornography and specifically which parts of the body are referred to and whether that definition includes the realistic images of a non-existing child and (3) the aggravating circumstances included in the national laws and the definitions that occur there in. In the following, these elements as included (or not) in the national laws will be compared to each other and to the elements as prescribed in the Framework Decision. Secondly, any particularities that may have occurred from the research of the national laws concerned will be discussed and specifically whether it does or does not entail an inconsistency with the Framework Decision and whether or not this inconsistency can be justified. Ultimately, through this investigation it will be made clear whether harmonization on the subject-matter has been reached regarding the three countries of which their national provisions regarding child pornography have been examined.
Possession of child pornography
According to Article 5 (1) in conjunction with Article 3 (1)(d) of Framework Decision 2004/68/JHA, Member States are obliged to ensure that acquisition and possession of child pornography are punishable by criminal penalties of a maximum of at least between one and three years of imprisonment. In Greece, the act of possessing child pornography is punishable with imprisonment between minimum 1 year and maximum 5 years and a fine of 10.000 euros. The Dutch provision declares the same act punishable with maximum 4 years of imprisonment or a fine of the highest (fifth) category.
Germany has established generally, much more specified provisions comparing to the other two countries and has made much more distinctions. First of all, Germany has placed the acts under different categories. Secondly, the German provision does not only include the sole possession as a criminal offence but also the ‘undertaking of obtaining possession’ for an other and a different category in which the act is committed in order to obtain possession of child/juvenile pornography for oneself. Ultimately, there has also been made a difference between child and juvenile pornography. All and all the acts regarding the possession and obtaining possession of child and juvenile pornography are punishable with a maximum imprisonment between 1 year and 5 years (the latter being the punishment for obtaining possession for another which sees to the act of trading etc.).
This element of the act of possession as established in each national provision seems to be in conformity with the Framework Decision since according to all of the national laws the possession of child pornography are punishable with a maximum between 1 year and 5 years of imprisonment. This is in conformity with the maximum criminal penalties the Framework Decision obliges for, namely of at least a maximum between one and three years. Since the provision concerned entails a minimum standard as can also be read from the words ‘at least’, the maximum penalties of 4 and 5 years are also allowed since this does not seem to constitute a disproportional punishment compared to the other national laws and the maximum of the Framework Decision.

 

The definition of ‘child pornography
As has been become clear from the aforementioned, child pornography according to Article 1 of the Framework Decision includes not only depicts that visually represent a real child, or a real person appearing to be a child, involved or engaged in sexually explicit conduct, including lascivious exhibition of the genitals or the pubic area of a child, but also depicts visually representing the realistic images of a non-existing child involved in such conduct.
Child pornographic material, according to the Greek provision, includes every depicts of the body, or a part of the body, of the minor that obviously triggers sexual arousal and of a real or simulation of, or fictitious indecent act carried out for the same purpose, by or with a minor. The conduct as prescribed in this provision is in conformity with the definition of the Framework decision since it covers the basic elements thereof. It obviously, goes a bit further than Article 1 FD, but as already pointed out, the Framework decision entails minimum standards in which measures are allowed to be stricter than the ones provided for in the Framework decision.  By including the phrases ‘real or fictitious impression’ and ‘the simulation of’’ the law also seems to have included virtual child pornography. Especially the phrase ‘the simulation of’ indicates that this is indeed the case. In so far, although not specifically using the words of the Framework Decision, it seems that the realistic images of a non-existing child do fall within the scope of the Greek definition of child pornography and is thus, at first sight, in conformity with the European definition of child pornography.
The Dutch provisions regarding child pornographic material should be understood as the visual depicts of someone who has apparently not reached the age of 18 years old in such a conduct that apparently intents to trigger sexual arousal. This prescription is more or less the same as the Greek one. According to the established case-law of the Supreme Court of the Netherlands the sexual conduct can involve the atmosphere in which the genitals of the child are exposed and even the particular pose a child takes in the depict concerned. By adding the phrase ‘or apparently involved’, the Dutch provision also included virtual child pornography as a criminal offence. This provision thus can be, at first sight understood as in consistency with the European definition. In both the cases of the Greek and the Dutch national provisions, the definitions are in conformity with the European one, solely at first sight because the exact meaning of these definitions will probably become clear by the interpretation that the national courts will give to these terms in the near future.
As to Germany, the case is a bit more complicated. No specific definition to child pornographic materials have been provided for in written law due to the fact that the German legislator has decided that the concept is subject to prevailing moral attitudes. Nevertheless, it can be concluded that sexual conduct according to the German law involves the sexual activities performed by, or in the presence of children. This sexual activity must be of some relevance in relation to the protection of children. Furthermore, the term child pornography includes the ‘provocative exhibition of children’s sexual organs’. The pubic area can also be read to be covered by the German law, since this is of relevance in relation to the protection of the child. All though the term ‘actual or realistic activity’ seems to include the realistic images of a non-existing child’, this is not certain since it specifically speaks of an activity. This could, but is not very probable, mean that realistic image of the solely naked child of a non-existing child might not fall within the scope of ‘activity’. Finally, the German provision distinguishes child juvenile pornography from child pornography. This could be seen as an inconsistency  with  the Framework Decision since the Framework Decision explicitly includes all persons, thus also juveniles, under the age of eighteen years old as children. Germany, has however still fulfilled the obligation as established by the Framework Decisions by also declaring the same acts, as in the case of child pornography, relating to juvenile pornography punishable with maximum imprisonments as called for in the Framework Decisions. Thus, Germany has without implementing the European definition of child pornography, fulfilled the obligations deriving from the Framework Decision and in particular, Article 3 in conjunction with Article 5 thereof.   
Inconsistencies can occur, however, when the term can become of importance regarding new European provisions coming into force. It is, for example, imaginable that the Framework Decision will be amended in a way that it will place the undertaking of obtaining possession as a punishable act. Or perhaps the ECJ will decide this in its case law, now that (and if) the Lisbon treaty will enter into force, the ECJ will also have the competence to rule on Framework Decisions since the pillar system as maintained so far will disappear. All and all, it does not seem practically that the German provisions distinguish juveniles from children since it jeopardizes the unified application of the term child pornography in Europe and stands in the way of harmonization of the definition as specifically called for in the Framework Decision.  

 

The aggravating circumstances
The three possible aggravating circumstances regarding child pornography (except for possession) that Member States were allowed to implement in their national legal orders according to Article 5 of the Framework Decision consist of, a) in case the act endangered the life of the child, b) in case the act involved serious violence to, or harm of the child and c) the act was committed in the framework of a criminal organization.
Greece has implemented the first aggravating circumstance with the minor difference that the death of the child actually resulted from the act. The aggravating circumstances which involves the violence and/or harm of the child was already included in the ‘old’ Greek provision which was not amended after the Framework Decision entered into force. The last of the aggravating circumstances which involves the ‘criminal organization’ was on the other hand included in the ‘new’ Greek provision which speaks of ‘the act committed as a profession or a habit’. There was also a fourth aggravating circumstance included which was however not included in Article 5 of the Framework Decision. The new section 2 of the Greek provision establishes a higher penalty in the event that the acts committed as listed in the first section, were committed through the use of a computer system. This feature is quit interesting for two reasons; first, the Framework Decision merely obliges to criminalize the act in the same way as when the acts were committed by other means and secondly, the Greek law is the only law of the three national laws examined that actually includes such an aggravating circumstance.
The Dutch provision does not include any of the aggravating circumstances established by Article 5 of the Framework Decision, except for the last one. It interestingly thereby uses the same phrase as the Greek law, namely ‘the act committed as a profession or habit’. This is not entirely in line with the definition the Framework decision refers to, namely ‘the act committed in the framework of a criminal organization’ which is defined in Joint Action 98/733/JHA in a different way.
The German provision also only implemented this aggravating circumstance with a complete different definition, namely when the acts are committed on a commercial basis or as a member of a gang whose purpose is the continued commission of such offences. Arguably, this phrase shows more similarities with the definition given to ‘criminal organization’ in the Joint Action, but it basically entails the same as ‘as a profession or a habit’.
It is quit interesting that all three Member States have incorporated the aggravation circumstance provided for by Article 5 (2) (c) into their national provisions but all using a different definition of ‘criminal organization’ than the Framework decision refers to. This is even more striking, since two out of the three Member States used the same different definition and the third a definition quit similar to that one of the other two. This can not be the result of mere coincidence. All though this topic is not the main issue of this Article and extends the scope of this research, it might be noteworthy that the reason for this ‘coincidental result’ lies in the other international instruments ratified by the same Member States. It is most probable that the use of this phrase ‘as a profession or as a habit’ derives from the definitions and obligations incorporated in (one of) these instruments relating to the same subject-matter. The Member States incorporated this definition since they probable believed it more suitable and favorable and since the Framework Decisions solely obliges a minimum standard which the member States, with the use of this phrase, still reach and thus fulfilled their obligations deriving from both the Framework Decision and the other international instrument(s).
On the other hand, however, it might be considered as an disproportionate measure now that at least two of the Member States discussed (namely Greece and the Netherlands) have not placed the acts of possession and the more severe acts concerning child pornography in separate categories. The result is, that both in Greece and in the Netherlands, the aggravating circumstances are even applicable to the act of possession even though this act has been excluded from such aggravating circumstances (or from any for that matter) by Article 5 of the Framework Decisions. This provision clearly states that Member States may implement such aggravating circumstance for the acts as listed in a), b) and c) of Article 3 (1). The act of possession however is listed in d) and no aggravating circumstances have been provided for by the Framework Decision for the acts listed under d). Ultimately, the act of possession committed as a habit (or as a profession, but this seems less probable to occur) is punishable in both the Netherlands and Greece, with a maximum imprisonment of 10 and 8 years. This might constitute a disproportional measure considering the foregoing. This might also not be the case due to the fact that the Framework Decision only provides for minimum standards. Thus, whether this aggravating circumstance as incorporated in the Greek and Dutch national law constitutes a disproportionate measure or not is can be argued from either way.

 

Other interesting features
Interestingly, non of the three Member States referred to in this Article made use of the possibility provided to them by Article 3 (2) a to c of the Framework Decision. They have, in order words, not established any exceptions that justify committing one of the acts as listed in Article 1 of the Framework Decision. Germany has included one exception that is more or less the same as the one provided for by Article 3 (2) (c) FD, but this entails an exception for the act of undertaking of obtaining possession of juvenile pornography, an act that has not been listed as one of the punishable acts of the Framework Decision. Germany has also included another exception which was not mentioned in the Framework Decision, but this exception applies only to an act which was not listed as a criminal offence in the Framework Decision, namely the undertaking of obtaining obsession and thus does not constitute an inconsistency with the Framework Decision.

 

Conclusion
The harmonisation of the combat against child pornography does not seem to have been very successful so far. All though the national provisions of the three Member States examined in this contribution do include the punishable act of possession of real or realistic child pornography and the maximum criminal penalty thereof in accordance with the Framework Decision, the problems occur in the particularities these States have included in their national provisions that are not or differently determined in the Framework Decision. It is thus not a problem that the acts are not punishable with the exact same maximum imprisonment or that, for example, Greece has included the aggravating circumstance of the use of computers or internet. No, the problem lies in the fact that different terms are used for the definition of child pornography regarding scope of the sexual conduct, the body parts that are included therein and the age of the victims. Furthermore, different terminologies have been used is all of the national relevant provisions examined for the phrase ‘realistic images of a non-existing child’. Consequently, the act of possession of child pornography can not be said to be harmonized since there is no universal definition for the term ‘child pornography’. What falls under the term in one Member State might not fall within the term in another member State. This means that successful judicial cooperation and enforcement within Europe at this point is quit unimaginable. As long as the definition of child pornography has not been harmonised, the crimes related to this issue can not be harmonized. Outcome could be given by the interpretation of the ECJ which can establish a European definition of child pornography directly applicable in all Member States. At this point, this is not possible however since Article 35 TEU excludes the interpretations of, amongst others, Framework decisions adopted under the third pillar from the competences of the ECJ. This will change if, and after the Lisbon Treaty has entered into force [. Only then can the ECJ give a definite definition of child pornography which will be directly applicable in the national court of the Member States. And perhaps, then it will be possible to harmonize the subject-matter.   

Stefani Tsonos 

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