It is also referred to as a “repair” of the child pornography paragraph when the earlier failed reform of child pornography and the classification as a “crime” has now been reversed by the legislator. The elements of the offense of Section 184b StGB (distribution, acquisition, possession of child pornography) have been downgraded again from a felony to a misdemeanor, which the German Association of Judges had also previously advocated.

Criminal defense lawyer on § 184b StGB - change in the law on child pornography

12 StGB: Crimes are illegal acts that are punishable by a minimum of one year's imprisonment or more. Misdemeanors are illegal acts that are punishable by a minimum of a lesser prison sentence or a fine.

Until the reform, it was no longer possible for criminal judges to respond with a punishment that was commensurate with the offense and the guilt in any way below the statutory minimum prison sentence of one year. Judges had to pass sentences in which a mandatory minimum prison sentence of one year was no longer commensurate with the guilt, even if the execution of the sentence was regularly suspended on probation. The minimum prison sentence of one year had existential professional consequences for many convicts.

German criminal defense Lawyer on milder sentences after appeal proceedings

Consequences of the law to reduce the minimum sentences under § 184b StGB - In criminal proceedings for possession of child pornography writings, the 4th Criminal Senate of the Federal Court of Justice (BGH, decision of October 9, 2024 - 4 StR 374/24 -) quashed a judgment of the Essen Regional Court and ruled that, pursuant to § 2 sec. 3 StGB also applies to “old cases” that have not yet been legally concluded, which led to the reduction of the minimum sentences of § 184b para. 1 sentence 1 and para. 3 StGB from June 28, 2024.

The case concerned acts committed in October 2021. With the entry into force of the law amending the minimum sentences for child pornography on June 24, 2024, a penalty range of three months to five years in prison now “only” applies, which, in accordance with § 2 para. 3 StGB, as a milder law, also applies to such older cases and, according to § 354a StPO, also in appeal proceedings. The annulment of individual sentences also leads to the annulment of an overall sentence.

German criminal defense lawyer about § 184b StGB

A minimum prison sentence of one year was often completely inappropriate but legally prescribed for the judge. The “repair” of § 184b StGB brings the criminal prosecution of cases with little injustice to a better level, where it is also more likely that proceedings will be discontinued. This applies above all to cases in which only one or a very few incriminating files were found.

And just as before, from the point of view of the defense, the question of the suspect's actual “intention to possess” must be clarified in all cases, even when a large amount of data is involved.

The subjective requirement for criminal liability is, in particular, the perpetrator's intention to possess. The suspect must know that he is in possession of child pornography. If they are not aware of this and such images or videos are on their data carriers for whatever reason, they are not liable to prosecution.

Furthermore, the question may arise as to whether data carriers, be they mobile phones, computers, USB sticks or other devices, can be unequivocally attributed to the suspect. We have had such cases, but due to a lack of attribution to the public prosecutor's confiscation of the data carriers, they led to the criminal investigation proceedings being discontinued. This can be the case, for example, if a device has been used by a large number of employees in succession or simultaneously.

German criminal defense lawyer: no intent to possess child pornography

The suspect's intent to possess child pornography can be questionable for a variety of reasons, for example, if only so-called thumbnails (thumbnails) are found that - depending on the case - are not visible to the user at all. The term “thumb” can sometimes be found in the file path.

The ratio of legal to illegal pornography found when the data carriers are analyzed can also indicate that the perpetrator lacked the intent to possess. There are empirical values for how much child pornography one can acquire by downloading pornography that appears to be legal. There are cases in which the accused has only inadvertently downloaded child pornography. Then it may depend on whether he saw it and what he did with it. The reading of the search history is also important for assessing the intent to possess.

Deleted images are at least very problematic, even if the deletion of an image initially appears to indicate a lack of intent to possess. But moving an image to the trash does not actually delete it, because it can be retrieved if necessary. It depends on the program, the number of deleted images and the time of deletion. This cannot be judged across the board and sometimes it is necessary to have an expert clarify how available the images were for the suspect.

Active defense is required if the suspect uses several devices in parallel, where data is transferred from one device to the other without direct user intervention. This can lead to the suspect unconsciously having data on his devices, which, in the case of automatic data transfer, may conflict with his will of ownership. Likewise, a defendant must actively defend himself if he has received files in WhatsApp or Facebook groups, but the defendant left the group shortly after Kipo was posted by others.

German criminal defense lawyer: no public or media interest in court proceedings for child pornography

Court proceedings in criminal cases are generally public in Germany, but defendants in such proceedings do not normally have to worry about too much public or even media interest. Almost all such proceedings take place without an audience and only rarely are there occasional random bystanders in the courtroom who have no other connection to the matter. As a rule, there is no discernible particular interest in such a criminal case on the part of the media and the public. The case may be of regional significance for the general public and media interest may also be limited to the region, but normally such proceedings also concern crimes that were committed some time ago and have completely lost their relevance, and public interest, let alone media interest, tends towards zero.