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Ivan Belic, Anr. 608191

Assignment 4

Virtual Child pornography

11th of November 2017

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Virtual child pornography which is made up of sexual child abuse images that are computer-
generated or fictional in any other way, isnt as such criminalized under the Serbian Criminal
code1. To be able to understand why it is regulated in this way, we must first look at how is child
pornography regulated.

Child pornography is as such a criminal offence in the Republic of Serbia and is prescribed in
article 185 paragraphs 2,3,4,5,6 named Showing, procuring and possession of Pornographic
Material and Juvenile Pornography2. Analyzing the aforementioned article in regards to virtual
pornography, we can immediately notice that the regulator has clearly singled out an important
element, the actual use of a minor(or participation of minor in the conducted offences
prescribed in the article). According to the main principles of criminal law in Serbia an action(or
an act) can be considered a criminal offence only when the following criteria are fulfilled:

1. It has to be a deed3 committed by a person


2. The deed has to be prescribed in the law as a criminal offence.
3. The deed has to be unlawful4
4. Mens rea mental intention

By using these criteria in assessing virtual child pornography according to Article 185, we can
come to a conclusion, that since virtual child pornography doesnt involve the actual use or
participation of a minor as a human being, thus it cannot be considered a criminal offence under
the existing Criminal code, since it fails to fulfill the second requirement of the deed being
prescribed in the law5.

By adopting an extensive interpretation of the existing Criminal code, virtual child pornography
could be potentially partially covered by article 185 paragraph 1 depending on the fact whether
computer generated images or other fictional depictions can be considered pornographic
material? Since the regulator hasnt given an actual definition of pornographic material but
interestingly in paragraph 6 it stated that under child pornography it considers every kind of
content that visually depicts a juvenile person who is involved in real or simulated sexually
explicit behavior, as well as every display of juvenile reproductive organs for sexual purposes6
so if we continue in the direction set by the regulator and consider pornographic material(as
loosely defined in the Criminal code) as every kind of content that displays human reproductive

1 Krivini zakonik, "Sl. glasnik RS", br. 85/2005, 88/2005 - ispr., 107/2005 - ispr., 72/2009, 111/2009, 121/2012, 104/2013,
108/2014 i 94/2016 <http://paragraf.rs/propisi/krivicni_zakonik.html> (Accessed 10th of Oct. 2017) (Criminal code, Official
Gazette of RS no. 85/2005, 88/2005 - ispr., 107/2005 - ispr., 72/2009, 111/2009, 121/2012, 104/2013, 108/2014 i 94/2016,
available for download in English language(older version from 2012) - http://www.zakon.co.rs/tekstovi-zakona-na-engleskom-
jeziku.html
2 Article 185 of the Criminal code (see Appendix A)
3 In Serbian criminal law the word deed is used instead of an act since it also encompasses the causal link between the act its

consequence
4 Unlawful means that the deed has to violate a legal provision, also not all deeds that violate a certain legal provision are

considered unlawful, for example in the cases of: necessity and self-defence.
5 Article 14 paragraph 2 of the Criminal code (see Appendix A)
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Article 185 p.6 of the Criminal code (see Appendix A)

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organs for sexual purposes and if virtual child pornography could fall under this category then it
could be indeed a criminal offense under article 185 p.1 that states : Whoever sells, shows or
publicly displays or otherwise makes available texts, pictures, audio-visual or other items of
pornographic content to a minor7 in which case the deed would be showing and/or making
the content in question available to a minor but the actual content in itself would still not be
criminalized and would be considered just as any other pornographic material, without
highlighting that it is actually virtual child pornography. In reality, this is very far-fetched, and it
is highly unlikely that the Courts would go this far in analyzing the aforementioned provision
since there is a general lack of strict definitions of pornographic material not to mention virtual
pornographic materials.

Having said that, there are a lot of question that can be formulated which could shape up future
legal provisions concerning virtual child pornography in Serbia: whether computer generated
images or otherwise fictional depictions in general can be considered pornographic material and
if so which particular images fall under the category of virtual child pornography, and most
importantly what is it exactly that the law protects in this situation since no actual children have
been used in the making of the content? Fortunately the outdated infrastructure and low levels of
knowledge needed for producing and perfecting these kinds of contents are still hurdles that have
to be overcome in order for virtual child pornography to become a reality in Serbia and as a
result it hasnt been in a focus of legal researchers and the regulator as of yet.

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Criminal code article 185 p.1 (see Appendix A)

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APPENDIX

Appendix A
Relevant articles of the Criminal code in English

Article 1858

(1) Whoever sells, shows or publicly displays or otherwise makes available texts, pictures, audio-visual or
other items of pornographic content to a minor or shows to a child a pornographic performance, shall be punished
with a fine or imprisonment up to six months.

(2) Whoever uses a minor to produce photographs, audio-visual or other items of pornographic content or
for a pornographic show, shall be punished with imprisonment from six months to five years.

(3) If the offence referred to in paragraphs 1 and 2 hereof has been perpetrated against a child, the offender
shall be punished with imprisonment of six months to three years for the offence from paragraph 1 and with
imprisonment of one year to eight years for the offence from paragraph 2.
(4) Whoever obtains for himself or another, possesses, sells, shows, publicly exhibits or electronically or
otherwise makes available pictures, audio-visual or other items of pornographic content made as a result of abuse of
a juvenile, shall be punished with imprisonment from three months to three years.

(5) Whoever with the use of information technologies knowingly accesses pictures, audio-visual or other
pornographic content made as a result of abuse of a juvenile, shall be punished with a fine or with imprisonment up
to 6 months

(6) Pornographic content made as a result of abuse of a juvenile (child pornography) is considered to be
every kind of content that visually depicts a juvenile person who is involved in real or simulated sexually explicit
behavior, as well as every display of juvenile reproductive organs for sexual purposes.

(7) Items specified in paragraphs 1 through 4 of this Article shall be confiscated.

Article 14

(1) A criminal offence is an offence set forth by the law as criminal offence, which is unlawful and
committed with guilty mind/mens rea.

(2) There is no criminal offence without an unlawful act or culpability, notwithstanding the existence of all
essential elements of a criminal offence stipulated by law.

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Article 185 has been revised after 2012 (by adding paragraphs 5 and 6) but since it is not available online in English language, I
have added the English translation of the paragraphs in question