Throughout Germany, Rademacher & Horst as defence lawyers represent their clients in criminal proceedings for the possession of child pornography according to § 184b Abs. 3 StGB and for the distribution of child pornography according to § 184b Abs. 1 StGB.

In Germany, you will usually find out that you are being investigated for possession or distribution of child pornographic material by means of a house search or a search at the workplace. The police will issue a search warrant stating that the apartment is to be searched on suspicion of possession or distribution of child pornography, and you will not be able to defend yourself against it at once (in this situation, not even with the help of a lawyer).

Without hesitation, the police officers dismantle the computers, collect data media and search through all cabinets. The accusation of "child pornography" alone regularly leads to the fact that one does not immediately know how to behave. However, the accusation and the fact that investigations into child pornography are being conducted can have a substantial effect on private and professional reputation.

In this situation Rademacher & Horst will answer all your urgent questions immediately. The most important thing first: You regularly don`t face an enforceable imprisonment (many clients ask that and tell us, they couldn`t sleep for nights). However, the legislator has strengthened § 184b StGB in 2015. In relation to § 184b StGB in the old version the punishability was extended and partly the threatened punishment was increased.

Assistance by criminal defence counsel in the case of accusations according to § 184b StGB (German Criminal Code)

One by one: At Rademacher & Horst we know what to do now. Regardless of whether you consider the charge to be justified or unjustified, you need a lawyer who is familiar with child pornography criminal proceedings. The defense lawyer is the only one who really cares about your interests in the criminal proceedings. No one else, especially not the police or the prosecutor's office, is trying to prove your innocence. That's what we do.

We become active immediately. From then on, you don't have to reckon with the police standing in front of the door unannounced. We'll immediately examine the prosecutor's report. We'll switch to a defense strategy with you right away. We have years of experience in child pornography criminal proceedings. We take care that the further investigations carried out under § 184b of the Criminal Code are not made public and even if it's out of carelessness.

From the very beginning, Rademacher & Horst will answer all your urgent questions. Once again, the most important thing here is that in the first case, you are not likely to face an enforceable prison sentence in practice if you do not spread child pornography as a member of a gang or professionally.

The German Criminal Code differentiates between the distribution of child pornography and the possession of child pornography in terms of penalties. Pursuant to § 184b I StGB (German Criminal Code), anyone who distributes child pornography is punished with imprisonment of at least three months to a maximum of five years. If someone spreads child pornography as a member of a gang or professionally, § 184b Abs. 2 StGB increases the sentence to up to ten years. If the court imposes a custodial sentence, execution of the custodial sentence may be suspended.

"possession" of child pornography is punishable by a fine or imprisonment - considerable regional differences

The mere "possession" of child pornography is punishable by a fine or imprisonment (one month to three years) in accordance with § 184b paragraph 3 of the Criminal Code, execution of the custodial sentence regularly will be suspended.

In Germany there are considerable regional differences which punishment courts consider appropriate. Many proceedings are also closed. In the case of a conviction, a fine is realistic or a custodial sentence that is suspended on probation. We always try to avoid trial.

 ... whether you'll be convicted or not

But it's not clear from the outset whether you'll be convicted or not. Proof that you did something deliberately is always difficult (see below) when it comes to Internet criminal law.

German Criminal defence lawyers Rademacher & Horst are renowned for their precision and attention to detail.

With § 184b StGB the general scope of application has to be clarified first. Section 184b of the Penal Code records the "child". Whoever is to be regarded as a child is determined by § 184b StGB. First of all, a child is considered to be someone who is not yet 14 years old from the perspective of an objective observer.

In § 184b of the Penal Code, the German legislature has determined when a representation is "child pornographic". According to § 184b of the Penal Code, a child pornographic picture is available as soon as it depicts a person under the age of fourteen, the reproduction of a wholly or partly unclothed child in an unnaturally sex-stressed posture or the sexually provocative reproduction of the unclothed genitals or the unclothed backside of a child. Pursuant to § 184b Abs. 1 No. 1a) StGB, a sexual-related event must be reproduced.

The German legislator classifies every picture of a sexual act in connection with a person under the age of 14 as child pornography. With § 184b StGB it depends on the age in connection with the sexual act. Posing "pictures can suffice, even if the child itself does not recognize the sexual character of the action, even if the child does not recognize involuntary positions, e. g. during sleep. As soon as a portrayal of a person under the age of fourteen (child) shows sexual acts, the German legislator speaks of a child pornography. Images and films on the Internet then fall under the somewhat outdated legal term "child pornographic writings".

trapped at the file-sharing site ... the narrow escape

The term "distribution" means that the material is passed on to a large number of individuals who can no longer be individualized. If the material has only been made available to a certain group of people, there is no distribution. In the case of electronic transmission with child pornographic content,"distribution" is sufficient if the file has been loaded into the system of another computer without the recipient actually accessing the file. Especially in the case of "distributing" child pornographic writings, however, we can often prove that this did not happen intentionally. Many users of file-sharing sites do not know that files downloaded directly from a file-sharing site are offered to other users for exchange due to the basic settings of a file-sharing site.

 In fact, other users of the file sharing service can access this file as soon as a file has been saved by a user. But the average person doesn't know that.

The "possession" of child pornographic materials requires the so-called "willingness to possess". In the case of electronic files, possession exists if the file has been stored on a permanent medium. We are combating the view of some courts that even loading into cache can result in criminal "possession". The accused must be clearly aware that he or she has access to child pornography. Section 184b of the German Criminal Code requires that it is known by the perpetrator that these are child pornographic writings. As a matter of principle, it is essential that the prosecution authorities have to prove that they have deliberate handling of child pornography.

Section 184b of the Criminal Code is a so-called intentional offence. This means that one can only make oneself liable to prosecution for distribution or possession of child pornographic materials in accordance with § 184 of the German Criminal Code as soon as there is intentional action in relation to the respective offence. Negligent conduct is not punishable here.

A criminal liability according to § 184b StGB also requires at least conditional intent with regard to the age of the person depicted. Assuming one assumes a youthful age, although it is a child, only a punishment for juvenile pornographic writings according to § 184b StGB is considered. As a matter of principle, it is essential that the prosecution authorities have to prove that they have deliberate handling of child pornography.

Once again, the most important thing here is that in the first case, you are not likely to face an enforceable prison sentence if you do not distribute child pornography as a member of a gang or professionally. The German Criminal Code differentiates between the distribution of child pornography and the possession of child pornography in terms of penalties. Pursuant to § 184b I of the German Criminal Code, anyone who distributes child pornography is punished with imprisonment of at least three months to a maximum of five years. If someone distributes child pornography as a member of a gang or professionally, § 184b Abs. 2 StGB increases the sentence to up to ten years. If the court imposes a custodial sentence that does not exceed two years, the execution of the custodial sentence may be suspended.

"Possession" of child pornography is punishable by a fine or imprisonment (one month up to three years) in accordance with § 184b paragraph 3 of the Criminal Code. In Germany there are considerable regional differences which punishment courts consider appropriate. Many proceedings are also closed. In the case of a conviction, a fine is realistic or a custodial sentence that is suspended on probation.

Negotiations can work wonders

The accusation of child pornography in accordance with § 184b of the Criminal Code is usually very stressful for those affected. It doesn't really take any more punishment. We also have strategies for the event that a conviction is to be expected. We still try to avoid a public trial. Negotiations with the public prosecutor's office, therapy offers or donations to charitable institutions can work wonders.

Best practice 

Please do not give any information to the law enforcement authorities without consulting your lawyer. As a rule, they can only prove at the beginning of an investigation that child pornographic material has been obtained via a certain Internet connection. Proof of who is ultimately responsible for the acquisition of child pornography in accordance with § 184b StGB is not provided until you have expressed your opinion. If other persons, such as spouses or partners, should be in the apartment at the time of the search, they should also, if possible, not provide any information.

Don't give out your passwords. You are not obliged to do this in Germany. The police officers will urge you to give them. This should not be done without consulting a lawyer.

Never forget: The criminal prosecution authorities must prove to you the illegal handling of child pornography in accordance with § 184b StGB.