A jury led by Judge Björn Schindler has cleared a 28-year-old man of possession and distribution of child pornography. The man had been accused by the public prosecutor of receiving three photos of sexual acts with young people under the age of 14 in a Whatsapp chat on May 1, 2021 and then saving them on his cell phone. Anyone who obtains or “keeps in stock” photos with child pornographic content is punished with a prison sentence of one to ten years under Section 184b of the Criminal Code. The accused had denied knowingly having the photos on his smartphone. Rather, he immediately deleted them and the associated chat too.
The defendant’s defense attorney admitted for his client that he had conducted the aforementioned chat. The 28-year-old was on the Internet to experience a “sexual adventure”. He came across a site that offers “sexual services”. In the Whatsapp chat, his client found out more and also received pictures. When he saw them, he became suspicious and asked if the young girl was of legal age. He wrote that he felt “ripped off” and immediately deleted the chat and the photos received. He assumed that that was the end of the matter.
All potential suitors were investigated
He only found out that the photos could still be found on his mobile phone after it had been confiscated as evidence during a house search and the content had been evaluated. The detective handling the case was able to say more about the prosecutor’s allegation. The 28-year-old had come across another accused whose cell phone had also been evaluated. The phone number of the 28-year-old was found there and his personal details could be determined. On the website where he was looking for the “adventure”, sexual “services” were offered in “tens of cases”. In the photo sent, the picture of a twelve-year-old. All potential suitors were then investigated. A search warrant was also issued against the 28-year-old. The Whatsapp chat was no longer found on the defendant’s mobile phone, but the photos were.
When asked by the defense attorney, the police officer stated that it was true that the photos were no longer stored in the cell phone’s gallery. The defendant actually deleted them there. Likewise the chat. But the photos were still on the smartphone as a thumbnail. Thumbnails are automatically generated in the background and are small image previews that display instead of a large version. If a user clicks on the mini version, they will get the large version of the photo – if it is not deleted.
Deleting thumbnails requires in-depth knowledge
The decisive question was whether a normal cell phone user knows that thumbnails are created from the photos received and how they can also delete these mini photos. The Kripo officer could only answer the latter question as a normal user, not as an expert. You could definitely delete these thumbnails, but you need “in-depth knowledge” to do so, as the defense attorney said. A layman usually does not know that.
His client therefore behaved correctly from a layman’s point of view, as a normal user, said the lawyer. He did everything he could have done: deleted photos and chat immediately. He didn’t know anything about the “leftover files” or was unable to delete them. There can therefore be no question of “keeping in stock”, so his client should be acquitted of the charge. The public prosecutor and the lay judges agreed after a short consultation.