Harmonisation of Substantive Criminal Law in the EU

HARMONISATION OF

SUBSTANTIVE

CRIMINAL LAW IN

THE EU

Treaty of Lisbon – legal basis of

harmonisation

•

Article 82

•

Judicial cooperation in criminal matters in the Union shall be based on the principle of

mutual recognition of judgments and judicial decisions and 

shall include the

approximation of the laws and regulations of the Member States 

in the areas

referred to in paragraph 2 

(criminal procedure rules) and 

in Article 83 

(substantive

criminal law).

Treaty of Lisbon – legal basis of

harmonisation

•

Article 83

•

1. The European Parliament and the Council may, by means of directives adopted

in accordance with the ordinary legislative procedure, establish minimum rules

concerning 

the definition of criminal offences

 and 

sanctions in the areas of

particularly serious crime with a cross-border dimension 

resulting from the

nature or impact of such offences or from a special need to combat them on a

common basis.

Treaty of Lisbon – legal basis of

harmonisation

Article 83

These areas of crime are the following:

•

terrorism,

•

trafficking in human beings and sexual exploitation

of women and children

,

•

illicit drug trafficking,

•

illicit arms trafficking,

•

money laundering,

•

corruption,

•

counterfeiting of means of payment,

•

computer crime,

•

organised crime.

Treaty of Lisbon – legal basis of

harmonisation

Article 83

2. If the approximation of criminal laws and regulations of the Member States

proves essential to ensure the effective implementation of a Union policy in an area

which has been subject to harmonisation measures, 

directives may establish

minimum rules with regard to the definition of criminal offences and sanctions in

the area concerned

. Such directives shall be adopted by the same ordinary or

special legislative procedure as was followed for the adoption of the harmonisation

measures in question

Positive and negative integration

•

Negative harmonisation – side effect of four freedoms

•

Positive harmonisation

•

Framework decisions

 – only one framework decision left in a substantive crminal law

area: 

Council Framework Decision 2008/913/JHA of 28 November 2008 on combating

certain forms and expressions of racism and xenophobia by means of criminal law

•

Directives

: relatively new instrument in the EU substantive criminal law area (after the

Lisbon Treaty)

Negative integration/harmonisation

Case C-55/94, Reinhard Gebhard v. Consiglio dell’Ordine degli Avvocati e Procuratori di

Milano,1995

•

37 It follows, however, from the Court' s case-law that national measures liable to hinder

or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty

must fulfil four conditions: 

they must be applied in a non-discriminatory manner;

they must be justified by imperative requirements in the general interest; they must

be suitable for securing the attainment of the objective which they pursue; and they

must not go beyond what is necessary in order to attain it

.

Why is there a need to harmonise

substantive crminal law?

1. 

Complimentary measure to mutual recognition of decisions in criminal matters

(harmonised criminal law makes it easier to accept foreign decisions in criminal cases and

execute them; enhances mutual trust, particular importance in cases where double

criminality principle is not applicable).

2. 

Protection of EU financial interests and effectiveness of EU policies 

(EU Directive on

the protection of the euro, PIF Directive – combating fraud).

3. 

Safeguarding citizens well-being in the area of freedom, security and justice and

basic values of the EU 

(e.g. fight against terrorism, human trafficking, sexual exploitation

of children).

4. 

Strenghtening the ability to effectively combat crime at national level in cases of

transnational criminality

.

Framework decision 2008/913

•

Council Framework Decision 2008/913/JHA of 28 November 2008 on

combating certain forms and expressions of racism and xenophobia by means

of criminal law

1.

Definitions of offences

2.

Liability of legal persons (article 5 – 6)

3.

Effective investigative measures (article 7-8)

Is racism/anti-Semitism/disrimination

still a problem in Europe?

•

What do you think?

•

Do you know any examples of racism/xenofobia/discrimination?

•

Is there any changes in the society?

•

What is a hate speach? Is it something similar to racism etc.?

•

Do the companies like Facebook [Meta], X or other have obligations to fight

against hate speech? What about posts on those platforms?

Framework decision 2008/913

Offences concerning racism and xenophobia

1.   Each Member State shall take the measures necessary to ensure that the following intentional

conduct is punishable:

(a)

publicly inciting to violence or hatred directed against a group of persons or a member of such a

group defined by reference to 

race, colour, religion, descent or national or ethnic origin

;

(b)

the commission of an act referred to in point (a) by 

public dissemination or distribution of tracts,

pictures or other material

;

(c)

publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity

and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court

,

directed against a group of persons or a member of such a group defined by reference to race, colour,

religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite

to violence or hatred against such a group or a member of such a group;

(d)

publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter

of the International Military Tribunal appended to the London Agreement of 8 August 1945,

directed against a group of persons or a member of such a group defined by reference to race,

colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner

likely to incite to violence or hatred against such a group or a member of such a group.

Framework decision 2008/913

•

Article 3

•

Criminal penalties

•

1.   Each Member State shall take the necessary measures to ensure that the

conduct referred to in Articles 1 and 2 is punishable by 

effective, proportionate

and dissuasive criminal penalties.

•

2.   Each Member State shall take the necessary measures to ensure that the

conduct referred to in Article 1 is punishable by criminal penalties of a maximum of

at least between 1 and 3 years of imprisonment.

New initiative

•

„

On 9 December 2021, the Commission adopted a Communication on '

A more

inclusive and protective Europe: extending the list of EU crimes to hate speech

and hate crime

' which aims to trigger a Council Decision extending to hate crime

and hate speech the current list of so-called ‘EU crimes’ as laid down in Art 83

TFEU. Such decision would enable the Commission, in a second stage, to

strengthen the legal framework on tackling hate speech and hate crime across the

EU.

”

•

https://commission.europa.eu/strategy-and-policy/policies/justice-and-

fundamental-rights/combatting-discrimination/racism-and-

xenophobia/extending-eu-crimes-hate-speech-and-hate-crime_en

New initiative

•

„

As a second step, the Commission may propose the adoption of 

directives

establishing minimum rules on the definitions and sanctions of hate speech

and hate crime to be adopted by the European Parliament and the Council 

in

line with the ordinary legislative procedure.

”

•

Rights of the minorities should be more protected.

•

There are several plans/programms:

•

EU Anti-racism Action Plan 2020-2025

•

Union of Equality: LGBTIQ Equality Strategy 2020-2025

•

EU

 strategy on Combating Antisemitism and Fostering

Jewish Life (2021-2030)

Hate speach against LGBTQ community

•

E.g.: Russia: 

https://www.reuters.com/article/us-russia-lgbt-crime-idUSKBN1DL2FM

•

Poland (vice Minister of Justice):

https://twitter.com/marcinwarchol/status/1609282119724834817?lang=en

•

https://edition.cnn.com/interactive/2020/10/world/lgbt-free-poland-intl-scli-cnnphotos/



LGBTQ+ „free zones” in Poland

•

https://www.france24.com/en/europe/20230516-homophobic-attacks-in-france-rose-

almost-30-percent-last-year-lgbtq-group-says

 <-- increasing numer of homophobic attack

Holocaust denial

•

https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698043/EPRS_BRI(20

21)698043_EN.pdf

•

See also: 

https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-72786%22]}

•

Witsch v. Germany

Antisemitism in Erope – CNN report

•

https://edition.cnn.com/interactive/2018/11/europe/antisemitism-poll-2018-intl/

•

A third of Europeans said that Jews use the Holocaust to advance their own

positions or goals.

•

12% of young Austrian haven’t heard about 

Holocaust

•

https://edition.cnn.com/interactive/2018/11/europe/antisemitism-poll-2018-intl/

Gender-based violence and EU

•

EU can 

can ratify the 

I

stanbul 

C

onvention

•

OPINION 1/19 OF THE COURT (Grand Chamber)

; 

6 October 2021

:

•

https://curia.europa.eu/juris/document/document.jsf?text=&docid=247081&pageIndex=

0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=11501

•

Council of Europe 

Convention on preventing and combating violence against

women and domestic violence

•

https://www.coe.int/en/web/istanbul-convention/home

?

Istambul convention – article 1

•

The purposes of this Convention are to:

•

protect women against all forms of violence

, and prevent, prosecute and eliminate violence

against women and domestic violence;

•

contribute to the elimination of 

all forms of discrimination against women 

and 

promote

substantive equality between women and men

, including by empowering women;

•

design a comprehensive framework, policies and measures for the protection of and

assistance to all victims of violence against women and domestic violence;

•

promote international co-operation with a view to eliminating violence against women

and domestic violence

;

•

provide support and assistance to organisations and law enforcement agencies to effectively

co-operate in order to adopt an integrated approach to eliminating violence against women

and domestic violence.

•

2 In order to ensure effective implementation of its provisions by the Parties, this

Convention establishes a specific monitoring mechanism

.

Definitions – article 3

•

“violence against women” is understood as a violation of human rights and a form

of discrimination against women and shall mean all 

acts of gender-based

violence that result in, or are likely to result in, physical, sexual, psychological

or economic harm or suffering to women,

 including threats of such acts,

coercion or arbitrary deprivation of liberty, whether occurring in public or in

private life;

•

“domestic violence” shall mean all acts of 

physical, sexual, psychological or

economic

violence that occur within the family or domestic unit or between

former or current

spouses or partners

, whether or not the perpetrator shares or

has shared the same

residence with the victim;

Substantive criminal law provisions

•

Article 32 – Civil consequences of forced marriages

•

Parties shall take the necessary legislative or other measures to ensure 

that marriages

concluded under force may be voidable, annulled or dissolved without undue financial or

administrative burden placed on the victim.

•

Article 33 – Psychological violence

•

Parties shall take the necessary legislative or other measures to ensure that the intentional

conduct of seriously impairing a person’s psychological integrity through coercion or threats

is criminalised.

•

Article 34 – Stalking

•

Parties shall take the necessary legislative or other measures to ensure that the 

intentional

conduct of repeatedly engaging in threatening conduct directed at another person,

causing her or him to fear for her or his safety, is criminalised.

•

Article 35 – Physical violence

•

Parties shall take the necessary legislative or other measures to ensure that the 

intentional

conduct of committing acts of physical violence against another person is criminalised.

Substantive criminal law provisions

•

Article 36 – Sexual violence, including rape

•

Parties shall take the necessary legislative or other measures to ensure that the

following intentional conducts are criminalised:

•

A

)

 engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the

body of another person with any bodily part or object;

•

B) 

engaging in other non-consensual acts of a sexual nature with a person;

•

C)

 causing another person to engage in non-consensual acts of a sexual nature with a

third person.

•

2 

Consent must be given voluntarily as the result of the person’s free will assessed in

the context of the surrounding circumstances

.

•

3 Parties shall take the necessary legislative or other measures to ensure that the

provisions of paragraph 1 also apply to acts committed against former or current

spouses or partners as recognised by internal law.

Substantive criminal law provisions

•

Article 37 – Forced marriage

•

1

. 

Parties shall take the necessary legislative or other measures to ensure that the intentional

conduct of forcing an adult or a child to enter into a marriage is criminalised.

•

2

.

 Parties shall take the necessary legislative or other measures to ensure that the intentional

conduct of luring an adult or a child to the territory of a Party or State other than the one she

or he resides in with the purpose of forcing this adult or child to enter into a marriage is

criminalised.

•

Article 38 – Female genital mutilation

•

Parties shall take the necessary legislative or other measures to ensure that the following

i

ntentional conducts are criminalised:

•

excising, infibulating or performing any other mutilation to the whole or any part of a

woman’s labia

majora, labia minora or clitoris;

•

coercing or procuring a woman to undergo any of the acts listed in point a;

•

inciting, coercing or procuring a girl to undergo any of the acts listed in point a.

Substantive criminal law provisions

•

Article 39 – Forced abortion and forced sterilisation

•

Parties shall take the necessary legislative or other measures to ensure that the

following intentional conducts are criminalised:

•

A

)

 performing an abortion on a woman without her prior and informed consent;

•

B

)

 performing surgery which has the purpose or effect of terminating a woman’s capacity to

naturally reproduce without her prior and informed consent or understanding of the procedure.

•

Article 40 – Sexual harassment

•

Parties shall take the necessary legislative or other measures to ensure that any form of

unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or

effect of violating the dignity of a person, in particular when creating an intimidating,

hostile, degrading, humiliating or offensive environment, is subject to criminal or other

legal sanction.

What is the definitione of rape?

•

Poland:

•

Whoever, by 

force

, 

illegal threat or deceit subjects 

another person to sexual

intercourse shall be subject to the penalty of the deprivation of liberty for a term of

between 2 and 12 years.

•

I

f the perpetrator, in the manner specified in § 1, makes another person submit to other

sexual act or to perform such an act, he shall be subject to the penalty of the deprivation

of liberty for a term of between 6 months and 8 years.

•

If the perpetrator commits the rape 1) in common with another person, 2) against a

minor under 15 years of age, 3) against an ascendant, descendant, or a person being

adopted, or brother or sister, he shall be subject to the penalty of deprivation of liberty

for a minimum term of 3 years.

•

If the perpetrator of the crime specified in § 1 - 3 acts with particular cruelty, he shall be

subject to the penalty of deprivation of liberty for a minimum term of 5 years.

What is the definitione of rape?

•

Spain:

•

When the sexual assault consists of vaginal, anal or oral penetration, or inserting body parts

or objects into either of the former two orifices, the offender shall be convicted of rape with a

sentence of imprisonment from six to twelve years.

•

Sweden:

•

When someone, by assault or otherwise with violence or by the threat of a criminal act,

compels a person to have sexual intercourse or a comparable sexual act.

•

Observations

•

Rape may also be committed when the victim has not been compelled, but the perpetrator

has improperly exploited the fact that a person is in a helpless state, owing to, for instance,

unconsciousness, sleep, intoxication or other influence of drugs, illness, bodily injury or

mental impairment.

•

https://eige.europa.eu/gender-based-violence/regulatory-and-legal-framework

How rape should be prosecuted?

•

Article 55 – Ex parte and ex officio proceedings

•

1 Parties shall ensure that investigations into or prosecution of offences

established in

accordance with Articles 35, 36, 37, 38 and 39 of this Convention

shall not be wholly

dependant upon a report or complaint filed by a victim if the

offence was committed in whole

or in part on its territory, and that the

proceedings may continue even if the victim withdraws

her or his statement or

complaint.

•

2 Parties shall take the necessary legislative or other measures to ensure, in

accordance with

the conditions provided for by their internal law, the possibility

for governmental and nongovernmental organisations and domestic violence

counsellors to assist and/or suport

victims, at their request, during investigations

and judicial proceedings concerning the

offences established in accordance with

this Convention.

D

irective 2011/92

D

irective 2011/92/eu of the 

E

uropean 

P

arliament and of the 

C

ouncil

of 13

December 2011

on combating the sexual abuse and sexual exploitation of

children and child pornography, and replacing Council Framework Decision

2004/68/JHA

•

Recital 6:

•

Serious criminal offences such as the sexual exploitation of children and child

pornography 

require a comprehensive approach covering the prosecution of

offenders, the protection of child victims, and prevention of the phenomenon

.

The child’s best interests must be a primary consideration when carrying out any

measures to combat these offences in accordance with the Charter of

Fundamental Rights of the European Union and the United Nations Convention on

the Rights of the Child

.

D

irective 2011/92

•

Recital 40

•

Where the danger posed by the offenders and the possible risks of repetition of the offences

make it appropriate, 

convicted offenders should be temporarily or permanently prevented

from exercising at least professional activities involving direct and regular contacts with

children

. Employers when recruiting for a post involving direct and regular contact with

children are entitled to be informed of existing convictions for sexual offences against children

entered in the criminal record, or of existing disqualifications. For the purposes of this Directive,

the term ‘employers’ should also cover persons running an organisation that is active in

volunteer work related to the supervision and/or care of children involving direct and regular

contact with children. The manner in which such information is delivered, such as for example

access via the person concerned, and the precise content of the information, the meaning of

organised voluntary activities and direct and regular contact with children should be laid down

in accordance with national law.

•

https://rps.ms.gov.pl/pl-PL/Public#/



 Sex Offenders Register

•

What do you think about this register? Should it be public and avaliable to everyone?

D

irective 2011/92

1.

Definitions

2.

Lists of ofences which should be penalised in the Member States

3.

Liablity of legal persons article 11-12

4.

Obligation to introduce effective investigation measures – article 15-17; 21-25

5.

Protection of victims – article 18-20

6.

Cooperation between Member States

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irective 2011/92

Article 2  

For the purposes of this Directive, the following definitions apply:

(a)

‘child’ means any person below the age of 18 years;

(b)

‘age of sexual consent’ means the age below which, in accordance with national law, it is prohibited to engage in sexual

activities with a child;

(c)

‘child pornography’ means:

(i)

any material that visually depicts a child engaged in real or simulated sexually explicit conduct;

(ii)

any depiction of the sexual organs of a child for primarily sexual purposes;

(iii)

any material that visually depicts any person appearing to be a child engaged in real or simulated sexually explicit conduct or any

depiction of the sexual organs of any person appearing to be a child, for primarily sexual purposes; or

(iv)

realistic images of a child engaged in sexually explicit conduct or realistic images of the sexual organs of a child, for primarily

sexual purposes;

(d)

‘child prostitution’ means the use of a child for sexual activities where money or any other form of remuneration or

consideration is given or promised as payment in exchange for the child engaging in sexual activities, regardless of whether that

payment, promise or consideration is made to the child or to a third party;

(e)

‘pornographic performance’ means a live exhibition aimed at an audience, including by means of information and

communication technology, of:

(i)

a child engaged in real or simulated sexually explicit conduct; or

(ii)

the sexual organs of a child for primarily sexual purposes;

(f)

‘legal person’ means an entity having legal personality under the applicable law, except for States or public bodies in the exercise

of State authority and for public international organisations.

Age of consent in EU countries

•

https://www.ageofconsent.net/continent/europe

 <-- here, you can find all

information (not only about EU/Europe)

Age of consent in Europe

D

irective 2011/92

Article 3

Offences concerning sexual abuse

1.   Member States shall take the necessary measures to ensure that the intentional conduct

referred to in paragraphs 2 to 6 is punishable.

2.   

Causing,

 for sexual purposes, a child who has not reached the age of sexual consent to

witness sexual activities, even without having to participate, 

shall be punishable by a

maximum term of 

imprisonment of at least 1 year.

3.   Causing, for sexual purposes, a child who has not reached the age of sexual consent to 

witness

sexual abuse, even without having to participate

, shall be punishable by a maximum term of

imprisonment 

of at least 2 years

.

4.   

Engaging in sexual activities with a child who has not reached the age of sexual consent

shall be punishable by a maximum term of imprisonment of 

at least 5 years.

6. 

Coercing, forcing or threatening a child into sexual activities with a third party 

shall be

punishable by a maximum term of imprisonment of at least 10 years if the child has not reached

the age of sexual consent, 

and of at least 5 years of imprisonment if the child is over that age.

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irective 2011/92

Article 3

Offences concerning sexual abuse

5.   Engaging in sexual activities with a child, where:

(i)

abuse is made of a recognised position of trust, authority or influence over the child

,

shall be punishable by a maximum term of imprisonment of 

at least 8 years if the child has

not reached the age of sexual consent, and of at least 3 years of imprisonment, if the

child is over that age

; or

(ii

) 

abuse is made of a particularly vulnerable situation of the child

, in particular because of

a mental or physical disability or a situation of dependence, shall be punishable by a

maximum term of imprisonment of 

at least 8 years if the child has not reached the age of

sexual consent, and of at least 3 years of imprisonment if the child is over that age; or

(iii)

use is made of coercion, force or threats 

shall be punishable by a 

maximum term of

imprisonment of at least 10 years if the child has not reached the age of sexual consent,

and of at least 5 years of imprisonment if the child is over that age.

D

irective 2011/92

Article 4

Offences concerning sexual exploitation

1.   Member States shall take the necessary measures to ensure that the 

intentional conduct

referred to in paragraphs 2 to 7 is punishable.

2.   

Causing or recruiting a child to participate in pornographic performances, or profiting

from or otherwise exploiting 

a child for such purposes shall be punishable by a maximum

term of imprisonment 

of at least 5 years if the child has not reached the age of sexual

consent and of at least 2 years of imprisonment if the child is over that age.

3.   

Coercing or forcing a child to participate in pornographic performances, or threatening

a child for such purposes

 shall be punishable by a maximum term of imprisonment 

of at least

8 years if the child has not reached the age of sexual consent, and of at least 5 years of

imprisonment if the child is over that age.

D

irective 2011/92

Article 4

Offences concerning sexual exploitation

4.   

Knowingly attending pornographic performances involving the participation of a child 

shall

be punishable by 

a maximum term of imprisonment of at least 2 years if the child has not

reached the age of sexual consent, and of at least 1 year of imprisonment if the child is over

that age.

5.   

Causing or recruiting a child to participate in child prostitution, or profiting from or

otherwise exploiting a child for such purposes 

shall be punishable by a maximum term of

imprisonment of 

at least 8 years if the child has not reached the age of sexual consent, and of at

least 5 years of imprisonment if the child is over that age.

6.   

Coercing or forcing a child into child prostitution, or threatening a child for such purposes

shall be punishable by a maximum term of imprisonment 

of at least 10 years if the child has not

reached the age of sexual consent, and of at least 5 years of imprisonment if the child is over

that age.

7.   

Engaging in sexual activities with a child, where recourse is made to child prostitution 

shall

be punishable by a maximum term of imprisonment of 

at least 5 years if the child has not reached

the age of sexual consent, and of at least 2 years of imprisonment if the child is over that age.

Sexual 

exploitation

of children - statistics

1.

About one in five children in Europe 

are victims of some form of sexual

violence.

 (

This includes sexual touching, rape, sexual harassment, grooming,

exhibitionism, exploitation in prostitution and pornography, online sexual

extortion and coercion

)

2.

Between 

70% and 85% of children know their abuser

. 

The vast majority of

children are victims of people they trust

3.

About 1/3 of abused children never tell anyone

. (Reasons: 

Fear of not being

believed or fear of consequences: reprisals and possible impact on family, the

career, the reputation

)

https://human-rights-channel.coe.int/stop-child-sexual-abuse-in-sport-en.html

https://www.unicef.org/media/89096/file/CSAE-Report-v2.pdf

Sexual 

exploitation

of children - statistics

In 2022 EU prepared a raport with statistics of

 online exploitation of children,

including child sexual abuse material, child sex trafficking and online enticement

.

In total, in 2022 there was over 31.000.000 situations, mostly on Facebook –

21.000.000 reported cases.

https://www.missingkids.org/content/dam/missingkids/pdfs/2022-reports-by-

esp.pdf

https://www.weprotect.org/economist-impact-european-survey/

D

irective 2011/92

Article 5

Offences concerning child pornography

1.   Member States shall take the necessary measures to ensure that the intentional conduct,

when committed without right, referred to in paragraphs 2 to 6 is punishable.

2.   

Acquisition or possession of child pornography

 shall be punishable by a maximum term of

imprisonment of at least 1 year.

3.   

Knowingly obtaining access

, by means of information and communication technology, to

child pornography shall be punishable by a maximum term of imprisonment of at least 1 year.

4.   

Distribution, dissemination or transmission of child pornography 

shall be punishable by a

maximum term of imprisonment of at least 2 years.

5.   

Offering, supplying or making available child pornography 

shall be punishable by a

maximum term of imprisonment of at least 2 years.

6.   

Production of child pornography 

shall be punishable by a maximum term of imprisonment of

at least 3 years.

D

irective 2011/92

Article 6

Solicitation of children for sexual purposes

1.   Member States shall take the necessary measures to ensure that the following intentional

conduct is punishable:

the proposal, by means of information and communication technology, by an adult to

meet a child who has not reached the age of sexual consent, for the purpose of

committing any of the offences referred to in Article 3(4) and Article 5(6), where that

proposal was followed by material acts leading to such a meeting, shall be punishable by

a maximum term of imprisonment of at least 1 year.

2.   Member States shall take the necessary measures to ensure that an attempt, by means of

information and communication technology, to commit the offences provided for in Article

5(2) and (3) by an adult soliciting a child who has not reached the age of sexual consent to

provide child pornography depicting that child is punishable.

Crime of grooming

•

Grooming can occur anywhere: in person, online, or in an institutional setting. The

process may progress in different ways, but generally, it happens accordingly:

•

The adult becomes overly interested in the child and creates opportunities to be

alone. The fixation develops, and the adult gives the child special allowances or

privileges like trips to the movies or treats. Naturally, the child becomes fond of

the adult, and an opportunity to meet the child’s family may arise. The adult shows

extreme favoritism and may shower the child with gifts. Eventually, a bond of trust

and affection is created, and the adult gains influence over the child.

•

https://www.whitelawpllc.com/blog/is-grooming-a-crime/

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irective 2011/92

•

Article 7

Incitement, aiding and abetting, and attempt

•

1.   Member States shall take the necessary measures to ensure that inciting or

aiding and abetting to commit any of the offences referred to in Articles 3 to 6 is

punishable.

•

2.   Member States shall take the necessary measures to ensure that an attempt to

commit any of the offences referred to in Article 3(4), (5) and (6), Article 4(2), (3),

(5), (6) and (7), and Article 5(4), (5) and (6) is punishable.

D

irective 2011/92

Article 9

Aggravating circumstances

In so far as the following circumstances do not already form part of the constituent elements of the

offences referred to in Articles 3 to 7, Member States shall take the necessary measures to ensure

that the following circumstances may, in accordance with the relevant provisions of national law,

be regarded as 

aggravating circumstances

, in relation to the relevant offences referred to in

Articles 3 to 7:

(a)

the offence was committed 

against a child in a particularly vulnerable situation

, such as a child

with a mental or physical disability, in a situation of dependence or in a state of physical or mental

incapacity;

(b)

the offence was committed 

by a member of the child’s family, a person cohabiting with the

child or a person who has abused a recognised position of trust or authority

;

(c)

the offence was committed by 

several persons acting together

;

(d)

the offence was committed within the framework of a criminal organisation within the meaning

of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised

crime (12);

(e)

the offender has previously been convicted of offences of the same nature

;

(f)

the offender has 

deliberately or recklessly endangered the life of the child

; or

(g)

the offence 

involved serious violence or caused serious harm to the child.

D

irective 2011/92

Article 14

Non-prosecution or non-application of penalties to the victim

•

Member States shall, in accordance with the basic principles of their legal systems

take the necessary measures to ensure that competent national authorities are

entitled not to prosecute or impose penalties on child victims of sexual abuse and

sexual exploitation for their involvement in criminal activities, which they have

been compelled to commit as a direct consequence of being subjected to any of

the acts referred to in Article 4(2), (3), (5) and (6), and in Article 5(6).

Protection of victims

•

Special rules of interrogation

•

Ex officio prosecution

•

Encourage people to report crimes (guarantees of anonymity)

Directive 2017/541

D

irective (eu) 2017/541 of the 

E

uropean 

P

arliament and of the 

C

ouncil

of 15 March 2017

on

combating terrorism and replacing Council Framework Decision 2002/475/JHA and

amending Council Decision 2005/671/JHA

1.

Definitions

2.

Lists of ofences which should be penalised in the Member States

3.

Obligation to introduce effective investigation measures – article 20, 21, 23

4.

Protection of victims – article 24-26; important legal act: directive 2012/29

https://eur-lex.europa.eu/legal-content/PL/ALL/?uri=CELEX:32017L0541



 transposition

to national law

Directive 2017/541

(6) | Taking account of the evolution of terrorist threats to and legal obligations on

the Union and Member States under international law, 

the definition of terrorist

offences, of offences related to a terrorist group and of offences related to

terrorist activities should be further approximated in all Member States

, so that

it covers conduct related to, in particular, 

foreign terrorist 

fighters and terrorist

financing more comprehensively. These forms of conduct should also be

punishable if committed through the internet, including social media.

Now, not only „foreign terrorists” may be a threat to public safety but also „far-right”

organizations in European countries.

Directive 2017/541

Directive 2017/541

•

Between 2019 and

2021, 

1 560 

people

were arrested in EU

member states on

suspicion of terrorism-

related offences.

•

https://www.consilium.

europa.eu/en/infograp

hics/terrorism-eu-

facts-figures/

EU countries reported the following numbers of

terrorism-related arrests between 2010 and 2021:

•

2010: 249 arrests

•

2011: 484 arrests

•

2012: 537 arrests

•

2013: 535 arrests

•

2014: 774 arrests

•

2015: 1077 arrests

•

2016: 1002 arrests

•

2017: 1219 arrests

•

2018: 1056 arrests

•

2019: 1004 arrests

•

2020: 634 arrests

•

2021: 388 arrests

Figures between 2010 and 2019 include the UK.

Directive 2017/541

•

Article 1

Subject matter

•

This Directive establishes minimum rules concerning the definition of criminal

offences and sanctions in the area of terrorist offences, offences related to a

terrorist group and offences related to terrorist activities, as well as measures of

protection of, and support and assistance to, victims of terrorism.

•

Article 2

Definitions

•

(3)

‘terrorist group’ means a structured group of 

more than two persons

,

established for a period of time and acting in concert 

to commit terrorist

offences;

 ‘

structured group’ means a group that is not randomly formed for the

immediate commission of an offence and that does not need to have formally

defined roles for its members, continuity of its membership or a developed

structure

.

Article 3

Terrorist offences

    (

a)

attacks upon a person’s life which may cause death;

(b)

attacks upon the physical integrity of a person;

(c)

kidnapping or hostage-taking;

(d)

causing extensive destruction to a government or public facility, a transport system, an infrastructure facility, including an

information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger

human life or result in major economic loss;

(e)

seizure of aircraft, ships or other means of public or goods transport;

(f)

manufacture, possession, acquisition, transport, supply or use of explosives or weapons, including chemical, biological,

radiological or nuclear weapons, as well as research into, and development of, chemical, biological, radiological or nuclear

weapons;

(g)

release of dangerous substances, or causing fires, floods or explosions, the effect of which is to endanger human life;

(h)

interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to

endanger human life;

(i)

illegal system interference, as referred to in Article 4 of Directive 2013/40/EU of the European Parliament and of the Council

(19) in cases where Article 9(3) or point (b) or (c) of Article 9(4) of that Directive applies, and illegal data interference, as referred

to in Article 5 of that Directive in cases where point (c) of Article 9(4) of that Directive applies;

(j)

threatening to commit any of the acts listed in points (a) to (i).

Directive 2017/541

•

2.   

The aims referred to in paragraph 1 are:

(a)

seriously intimidating a population;

(b)

unduly compelling a government or an international organisation to perform or

abstain from performing any act;

(c)

seriously destabilising or destroying the fundamental political, constitutional,

economic or social structures of a country or an international organisation.

Directive 2017/541

List of ofences:

1.

Public provocation to commit a terrorist offence

 (article 5)

2.

Recruitment for terrorism

 (article 6)

3.

Providing training for terrorism

 (article 7)

4.

Receiving training for terrorism

 (article 8)

5.

Travelling for the purpose of terrorism

 (article 9)

6.

Organising or otherwise facilitating travelling for the purpose of terrorism

 (article 10)

7.

Terrorist financing

 (article 11)

8.

Other offences related to terrorist activities

 (article 12)

9.

Aiding and abetting, inciting and attempting

 (article 13)

Directive 2017/541

Harmonisation of sanctions – terrorist offences – article 15

•

effective, proportionate and dissuasive 

criminal penalties, which may entail surrender or

extradition.

•

terrorist offences referred to in 

Article 3 

and offences referred to in 

Article 14

, insofar as

they relate to terrorist offences, are punishable by 

custodial sentences heavier than

those imposable under national law for such offences in the absence of the special

intent 

required pursuant to Article 3

•

offences listed in 

Article 4 

are punishable by custodial sentences, with a 

maximum

sentence of not less than 15 years for the offence referred to in point (a) of Article 4,

and for the offences listed in 

point (b) of Article 4 a maximum sentence of not less than

8 years. 

Where the terrorist offence referred to in point (j) of Article 3(1) is committed by a

person directing a terrorist group as referred to in point (a) of Article 4, the maximum

sentence shall not be less than 8 years.

Directive 2017/541

Sanctions for legal persons – article 18

Member States shall take the necessary measures to ensure that a legal person held liable

pursuant to Article 17 is punishable by effective, proportionate and dissuasive sanctions,

which shall include criminal or non-criminal fines and may include other sanctions, such as:

(a)

exclusion from entitlement to public benefits or aid;

(b)

temporary or permanent disqualification from the practice of commercial activities;

(c)

placing under judicial supervision;

(d)

a judicial winding-up order;

(e)

temporary or permanent closure of establishments which have been used for committing

the offence.

Terrorist states

•

Recently, Russia was recognized as a „sponsor of terrorism”

•

„

As the EU currently cannot officially designate states as sponsors of terrorism,

Parliament calls on the EU and its member states to put in place the proper legal

framework and consider adding Russia to such a list. This would trigger a number

of significant restrictive measures against Moscow and have profound restrictive

implications for EU relations with Russia

”.

https://www.europarl.europa.eu/news/en/press-room/20221118IPR55707/european-

parliament-declares-russia-to-be-a-state-sponsor-of-terrorism

Terrorist states

https://www.dni.gov/nctc/index.html

EU strategy and key findings in 2022

•

Terrorism continues to pose a serious threat. In 2022, 28 completed, failed or

foiled attacks were recorded in the EU. Sixteen attacks were completed, and four

people tragically lost their lives, two resulting from jihadist attacks and two from a

right-wing terrorist attack.

•

EU Member States continue to view jihadist terrorism as the most prominent

threat in the EU. Out of the 380 individuals arrested by EU Member States in 2022

for terrorism-related offences, 266 were carried out for jihadist offences.

•

Lone actors remain a key threat. Most of the attacks carried out in 2022 were done

so by suspects acting alone. This is especially true for attacks motivated by jihadist

ideology and right-wing extremism.

•

https://www.europol.europa.eu/media-press/newsroom/news/terrorism-in-eu-in-

2022-%E2%80%93-facts-and-figures