—	Dutch Criminal Code

Description
Generally, the penal law of the Netherlands applies to acts committed abroad by Dutch nationals.

Double criminality applies to these crimes (article 5, paragraph 1(2) of the Dutch Criminal Code). In its report before the International Tribunal for Children's Rights at the Paris Hearings in 1997, the Government of the Netherlands stated:

"It has been urged that the applicability of Dutch criminal law should be extended. The reason given is that the legislation on sexual offences is still deficient in a number of countries and that the condition of double criminality as contained in article 5, paragraph 1(2), Criminal Code, can be an obstacle to the prosecution in the Netherlands of Dutch nationals who have committed sex offences in these countries. For the time being, the government sees no occasion to extend the scope of application of the criminal law to include sex offences committed by Dutch nationals abroad which do not constitute criminal offences in the countries where they are committed. The main reason for preserving the requirement of double criminality is that the possibility of bringing a prosecution in the Netherlands is partly dependant on the co-operation of the relevant authorities in the country concerned. Their assistance is of great importance in the collection of evidence. Prosecution are already difficult and would undoubtedly become even more difficult if the act in question was not a criminal offence locally."

ECPAT Europe Law Enforcement Group's 1999 Report on extraterritorial legislation indicates that the protection against double jeopardy applies in extraterritorial cases (article 68, sub. 2 of the Criminal Code). The Report further indicates that the protection is applicable to those acquitted of the charge or discharged from further prosecution, as well as to those convicted of the offence (if a penalty was imposed, followed by its full realisation/execution, mercy or prescription.

According to Dutch law, the age of consent is 16 years, with special crimes concerning children under 12 or between 12-16 years. To prosecute acts extraterritorially, if the child victim is aged 16 years or over, he or she must file a formal complaint. The same is true for acts committed against children aged between 12-16 years, unless there is abuse of authority or trust.

However, according to ECPAT Europe Law Enforcement Group's 1999 Report, there is no need for a formal request to be made by the foreign authority where the offence took place (page 16).

With regard to the role of police and the importance of police training, the Netherlands government noted in its Paris Report:

"The duties of the police in relation to children and young people and sexual offences have for some time received considerable coverage in police training, both at the basic level and in the specialised courses. These course are of a high calibre and take account of current developments and the latest ideas and how to deal with these issues. The specialist courses are now being overhauled to ensure that they are even more in keeping with the need for specialist expertise in the police forces."

Register for paedophiles
With regard to the follow-up and tracking of child sex offenders, the Netherlands' Paris Report noted that the Forensic Laboratory was making preparations for the establishment of a national databank of DNA profiles to enable the truth to be established in a particular criminal case. The report also noted that the National Criminal Intelligence Service (CRI), who is responsible for the co-ordination of information on child pornography and trafficking in women, is engaged in modifying and developing a system for the Netherlands which has been introduced in Canada, the United States and Austria under the name of VICLAS (Violent Crime Linkage Analysis System). The system, which covers offences such as rape (by strangers), sexual offences in relation to children (not within the family), sex-related murder and murders for psychotic motives, enables a link to be established between national and international crimes and possible offenders.

Offences and Penalties

• " Any act outraging public decency committed in a place accessible to persons under sixteen years of age is punishable by up to three months imprisonment or a second-category fine (article 239);
• " Offering, displaying or sending (other than at a person's request) a pictorial representation or object known to be offensive to public decency is punishable by up to two months imprisonment or a third-category fine (article 240);
• " Supplying, offering or showing to a person under the age of sixteen a pictorial representation or object which may be considered harmful to children under sixteen is punishable by up to two months imprisonment or a second-category fine (article 240a);
• " Manufacturing, importation, conveying in transit, exportation, stocking, distribution or public exhibition of child pornography involving a child manifestly under the age of sixteen, or an information carrier containing such material (unless used for scientific, educational or therapeutic aim) is punishable by up to four years imprisonment or a fifth-category fine, or up to six years imprisonment or a fifth-category fine if the perpetrator has made a habit or profession of committing such offences (article 240b);
• " Rape is punishable by up to twelve years imprisonment or a fifth-category fine (article 242);
• " Sexual assault (including penetration) on a person known to be unconscious, powerless or otherwise unable to express consent or to offer resistance is punishable by up to eight years imprisonment or a fifth-category fine (article 243);
• " Sexual assault (including penetration) on a child under the age of twelve is punishable by up to twelve years imprisonment or a fifth-category fine (article 244);
• " Sexual assault (including extramarital penetration) on a child between the age of twelve and sixteen is punishable by up to eight years imprisonment or a fifth-category fine (article 245);
• " Indecent assault (compelling another person to commit or submit to an indecent act) is punishable by up to eight years imprisonment or a fifth-category fine (article 246);
• " Committing an indecent act with a person known to be unconscious, powerless or otherwise unable to express consent or to offer resistance, or committing an extramarital indecent act with a child under the age of sixteen (or inducing the latter to commit or submit to such an act with a third party) is punishable by up to six years imprisonment or a fifth-category fine (article 247);
• " Child prostitution (committing an indecent act with a minor of unimpeachable conduct by offering or promising a gift of money or property, or by misusing authority or influence, or by means of deception) is punishable by up to four years imprisonment or a fourth-category fine (article 248ter);
• " Committing an indecent act with his minor child, foster child, adopted child, his ward or a minor entrusted to him for care, education or supervision, or a servant or subordinate who is minor, is punishable by up to six years imprisonment or a fifth-category fine (article 249);
• " Committing of an indecent act by a public servant with a person under his authority or his charge is punishable by up to six years imprisonment or a fifth-category fine (article 249);
• " Committing of an indecent act by any manager, doctor, teacher, official, supervisor or servant in a prison, state labour institution for care and protection of children, orphanage, hospital or charitable institution with a person committed to the institution is punishable by up to six years imprisonment or a fifth-category fine (article 249);
• " Committing of an indecent act by any person employed in the health care sector or in social work with anyone committed to his care is punishable by up to six years imprisonment or a fifth-category fine (article 249);
• " Intentionally causing or encouraging a child to commit an indecent act with another person is punishable by up to three years imprisonment or a fourth-category fine; or by up to four years imprisonment or a fourth-category fine if the child is his minor offspring, foster child, adopted child, his ward or a minor entrusted to him for care, education or supervision, or a servant or subordinate who is minor. If the offender has made a habit of committing the indictable offence, the terms of imprisonment may be increased by one third (article 250);
• " Trafficking in human beings is punishable by up to six years imprisonment or a fifth-category fine; or by up to eight years imprisonment or a fifth-category fine if the trafficking is done by more than one person, if it involves a child under the age of sixteen or if it results in grievous bodily harm; or by up to ten years imprisonment or a fifth-category fine if the trafficking is done by more than one person and with regard to a child under sixteen or if it results in grievous bodily harm (article 250ter);

Note: with regard to sentencing, article 248 of the Dutch Criminal Code provides for more severe penalties in cases where any of the indictable offences defined in articles 243, 245 and 246 results in serious physical injury or death.

Other

Prosecutions
ECPAT Europe Law Enforcement Group's 1999 Report provides detailed information and useful analysis with respect to three cases:

• " "J. van der S., a 43 year old divorced computer programmer, went to the Philippines on several occasions. During his visits he arranged for girls to come over to a hotel room, where he sexually abused the underaged girls. He made pornographic pictures and videos and brought them back home. On 8 October 1996, the District Court in the Hague sentenced J. van der S. , to five years imprisonment, inter alia, for raping and having other forms of sexual contact in the Philippines with a girl under 16 years of age. On 26 February 1997, the High Court of Appeal made a decision which also resulted in a sentence of five years imprisonment. J. van der S. then appealed on a point of law to the Supreme Court of the Netherlands. On 21 April 1998, the Supreme Court sent the case back to the High Court of Appeal for technical reasons. On 26 November 1998, the Court of Appeal issued a final judgment confirming the sentence of five years imprisonment. […]
• " On January 1997, the District Court of the Hague convicted L. van E., a 24 year old heterosexual Dutch student who was the chairman of a paedophile club and openly approved of adults having sex with children, of infringing both articles 245 [sexual contact with penetration with a child aged between 12 and 16 years old] and 247 [sexual contact without penetration with a child under 16] with penetration old of the Dutch Criminal Code. He was sentenced to two years imprisonment, of which eight months were suspended on condition that he undergo intensive psychiatric treatment. The student was also abused in his own youth. L. van E. appealed this decision but on 17 December 1997, the Appeal Court upheld the District Court's decision. L. van E. filed a further, and final, appeal before the Dutch Supreme Court on purely formal grounds on 6 January 1998. On 8 December 1998 the Supreme Court turned down the appeal. […]
• " On 13 November 1997, the Utrecht District Court sentenced C.B., a 50 year old swimming teacher and travel agent, to five years imprisonment for, inter alia, having sexual contact with several boys under the age of 16, including five boys from Sri Lanka. The Public Prosecutor had requested a sentence of six years. C.B. appealed to the Court of Appeal in Amsterdam which upheld the District Court's decision. C.B. then filed a further appeal to the Supreme Court on 1 September 1998. It is not known when the Supreme Court will issue its decision. For the first time, a request made on behalf of the five boys for compensation was successful with the court ordering C.B. to pay NLG 1.500 (USD 750) to each victim. This amount was the maximum that could be awarded to a victim in a criminal case under the law as it was in 1991, when the offenses were committed. There is no maximum amount under the new legislation in force since April 1995 ('Wet Terwee')."

Source: International Bureau for Children's Rights - Global Report on the "International Dimensions of the Sexual Exploitation of Children"