Reduction of the minimum penalty for offences with child pornography
In the article we inform about the current legal situation as well as upcoming legislative changes in connection with child pornography content.
In the article we inform about the current legal situation as well as upcoming legislative changes in connection with child pornography content.
To the 1. July 2021, a fundamental change to the facts "Dissemination, acquisition and possession of child pornographic content" (§ 184b of the Criminal Code (StGB)) took place as part of the "Law on Combatting Sexualised Violence against Children". As part of this amendment, in particular, the penalty framework of the offence variant in § 184b paragraph 1 sentence 1 StGB (spreading; making accessible; producing; offering) from imprisonment from "three months to five years" to "one year up to ten years" and the penalty framework of the crime variant in § 184b paragraph 3 StGB (retrieving; procuring child pornographic content) was raised from imprisonment "up to three years or fine" to imprisonment from "one year to five years".
Thus, all offences regarding child pornographic content according to § 184b paragraph 1 sentence 1 and paragraph 3 StGB were raised / aggravated to crimes (§ 12 paragraph 1 StGB). In addition, less serious cases were not regulated by law.
The intensification from the original offence to the crime had a noticeable effect on the prosecution. The attempted criminal offences in relation to child pornographic content according to § 184b paragraph 1 sentence 1 and paragraph 3 StGB thus became mandatory punishable (§ 23 paragraph 1 StGB). In addition, prosecutorial investigation proceedings could no longer be prosecuted by hiring according to §§ 153 and 153a of the Code of Criminal Procedure (StPO) or by criminal order according to §§ 407 ff. StPO to be done.
As a result, it was not possible to guarantee prosecution appropriate to the fact and guilt in individual cases, especially if the accused persons did not act on a paedophile-criminal drive or acted as a juvenile offender on a typical immature drive.
According to the plan of the federal government, the increase in the penalty framework is therefore to be partially withdrawn. As part of this renewed amendment, the penal framework of the crime variant in § 184b paragraph 1 sentence 1 StGB (disseming child pornographic content; making child pornographic content accessible; producing child pornographic content; offering child pornographic content) is to being changed from imprisonment from "one year to ten years" to "six months to ten years" and the penal framework of the crime variant in § 184b paragraph 3 StGB (retrining child pornographic content; procuring; child pornographic content, possessing child pornographic content) from imprisonment from "one year to five years" to "three months to five years". By reducing the minimum measure, the designated offences become criminal offences again, which are generally discontinued according to §§ 153 and 153a StPO or according to §§ 407 ff. StPO can be settled by penalty order. At the same time, by maintaining the previously increased maximum, serious offences with regard to child pornography content should continue to be severely sanctioned in accordance with § 184b paragraph 1 sentence 1 and paragraph 3 StPO. The attempt should also continue to be punishable in cases of § 184b paragraph 1 sentence 1 number 1 and 3 StGB.
When exactly the amendment proposal of the Federal Government is to be implemented by law and whether it will be changed if necessary, is not yet known at the present time (as of April 2024). If the bill is adopted in accordance with the Federal Government's proposed amendment, it cannot in any case be assumed that, in the case of serious crimes under § 184b StGB, lower penalties will be demanded by the public prosecutor's offices and imposed on the courts.
On the contrary, the legislator has made it clear that serious violations in relation to crimes with child pornography content should continue to be severely punished by the legislative will.
However, it is to be expected that crimes with a low level of injustice will now again be treated more appropriately and culpablely by the law enforcement authorities / criminal courts in individual cases.
Further information on the article: Lowering of the minimum penalty for offences with child pornography