2-15-2014 Germany:
A German ex-parliamentarian is being investigated for possessing child pornography. Prosecutors and other experts are often forced to make difficult distinctions on whether a given image crosses the line into illegality.
When it comes to the legal definition of child pornography in Germany, a large grey area exists. Just by entering relevant terms in a search engine or trying to open a picture on a computer, individuals can face prosecution. That's because searching for and attempting to obtain child pornography are illegal in Germany, just as the possession of such materials is.
Only certain experts or investigators are allowed to search for the images. If private citizens search on their own - even if their intent is to help the police - they are committing a criminal offense.
What is considered to be child pornographic material?
Paragraph 184b of the penal code states: pictures of sexual acts of, on or in front of children under the age of 14 are considered child pornography.
Explicit sexual acts must be recorded on the pictures or the video footage to meet the definition. "That means I have to be able to determine that sexual intercourse happens or at least that action takes place close to the genital area," said Arnd Hüneke, a criminal law expert at the University of Hannover, in an interview with DW.
Pictures that could be classed merely as posing cause particular difficulties for investigators. This represents a gray area in the classification of child pornography where careful distinctions have to be made, says Hüneke.
"Pictures containing only nudity or pictures of a child taken secretly are not punishable," he explains, but adds that if the picture highlights the buttocks or depicts straddled private parts, then it can begin to be classed as child pornography.
How is the seriousness of the offense measured?
German investigators use what's known as the COPINE scale, a system developed in Ireland and used to categorize the severity of the child pornographic pictures and video footage.
The scale starts at one with completely neutral pictures and ends at 10, where children are depicted in situations involving brutal abuse or bestiality. Instances of posing, for example, are classified between a four and a six on the scale.
Investigators also use the COPINE system, which was created within the framework of an EU project to battle child pornography, to detect the perpetrators' inclinations and to judge their risk potential. The pictures found on Sebastian Edathy's computer are allegedly categorized as level two, which would not be punishable provided it's just a case of possession.
When can a home be searched?
An initial suspicion of possessing child pornography is enough to warrant a house search. Legal proceedings are initiated only if incriminating evidence turns up. Hüneke believes that there was an initial suspicion in the Edathy case. Perhaps the investigators assumed that someone who orders pictures like those Edathy had might also be in possession of more explicit and illegal materials.
However, Monika Frommel, an emeritus criminal law professor, denounced the prosecutors' actions in the case of the former parliamentarian Edathy as "unconstitutional and illegal." Not only is it legal, she said, to order or to possess pictures of undressed children, but it's also the exercise of a constitutional right.
What is the punishment for child pornography?
Sentences vary widely depending on what acts were committed. Possessing or procuring child pornographic material can be punished with up to two years in prison depending on the severity of the material. When sexual abuse is committed in order to produce child pornography, the minimum sentence is two years in prison and can be raised to as high as 15 years in prison.
For those involved in media production involving child pornography, the sentence ranges from three months to five years in prison, and the same sentencing guidelines apply when it comes to distributing such materials. But especially severe distribution cases can land the perpetrator in prison for up to 10 years. ..Source.. by DW
February 15, 2014
Child pornography's legal grey zone
December 18, 2012
German privacy regulator orders Facebook to end its real name policy
A German privacy regulator ordered Facebook to stop enforcing its real name policy because it violates a German law that gives users the right to use nicknames online.
Facebook refused to permit the use of pseudonyms on its platform as required by the German Telemedia Act, Thilo Weichert, privacy commissioner and head of the Office of the Data Protection Commissioner (ULD) Schleswig-Holstein said on Monday. The ULD issued a decree forcing Facebook to start allowing pseudonyms immediately, he said.
"This decree is binding," said Weichert, who added that it is unacceptable that a U.S. portal like Facebook keeps violating German data protection law. To ensure users' rights and comply with data protection law in general, the real name obligation must be immediately abandoned by Facebook, the ULD said.
The orders were issued on Friday against Facebook USA and Facebook Ireland, which is responsible for all Facebook's activities outside of the U.S. and Canada.
Facebook has always had a real-name policy. Users should use their name as listed on their credit card or student ID, so people know who they are connecting with, Facebook states in its name policy. Any accounts set up under fake names will be removed from the site when discovered in order to keep the community safe, according to Facebook.
While the ULD can only enforce its mandate on behalf of Facebook users in the state of Schleswig-Holstein, the order could be adopted by other German data protection authorities, Weichert said. "We informed our colleagues and most of the supervising authorities agree with us," he said.
However, similar orders weren't issued in the other states because the ULD's order is being used as a pilot ...continued... by Loek Essers
October 11, 2011
"Not in my Backyard" - from Ludwigsburg to Locarno
"NIMB - Not in my backyard" is a saying in America, if you do not want to have something near him. Whether it is a wind power plant, transmission line, a radio transmitter or a sex offender released from prison. So-called "sex offender" and the rigorous treatment of them in the U.S., the Ludwigsburg Film student Matthias Bittner his documentary "Not in my back yard" shot, which was today premiered morning as part of the currently held Film Festival of Locarno.
Teofilo is a Latino middle-aged Americans. He lives in Miami on the road, ie in an urban park. Not because he wanted to live homeless, but because he must. As a convicted "Sex Offender" - that sex offenders - all his proximity to schools, kindergartens and places is prohibited, which can reside on potentially children. About GPS locatable electronic shackles he is under police surveillance around the clock. With his documentary "Not in my backyard", the Ludwigsburg Film student Matthias Bittner has ventured on an awkward topic. But not in Germany but in the U.S.. What is often demanded zulande here is, there is already a reality. Rigorous exclusion of relevant offenders.
The policy of total social exclusion of sex offenders is also true Elliott. He has at least one apartment. However, his neighbors know about all the details of his personality and of course know of his crime. About the appropriate Internet portal of the police. The Matthias Bittner also served to prepare for his film.
Elliott speak haltingly and Teofilo also about what they have done before Bittner's camera. The director asks from off persistent after ...
Although in "Not in my backyard" everything comes to language, Matthias Bittner maintains the necessary distance from his protagonists and is far from trivializing the sexual abuse of children or even to apologize.
He found it a precise cinematic expression that goes beyond the sober Reporti out and produces a convincing social context - without which there would be an additional comment is necessary. Formally an accomplishment!
In an enlightened, modern society has also the man who has committed a crime and punished for it, can then expect that he will be treated with dignity and respect. Everything else is a throwback to medieval times! Matthias Bittner turned to with "Not in my backyard" an important and unique in form and content of the film ... was to be loaded one right after Locarno. ..Source.. by Filmspaicher Das SWR-Kino-Blog
August 7, 2011
In Germany, Therapy For Sex Offenders In A Hard Metal Setting
8-7-2011 Germany:
A new German law requires therapy for criminals who served their full sentences but are still deemed too dangerous for release. In the state of Nordrhein-Westfalen, therapy sessions are set to begin in a refurbished facility that looks a lot like a prison – because it used to be one.
OBERHAUSEN -- The sound of the alarm goes right through you – and through the prison walls. In the former penitentiary in Oberhausen, somebody has set it off. Markus Brehmer rushes out of cell 220 and calls down the hall: “Who did that? Mr. Reimann, please turn that off!” Somebody in a nearby cell had meant to turn on the light and pushed the wrong button by mistake.
A few moments later, silence returns, and Brehmer continues to show a group of reporters around the different floors of the facility with its steel doors and barred partitions. There aren’t any more prisoners here. This old penitentiary opposite Oberhausen’s train station is empty, though not for long.
A first group of sex offenders and violent criminals are due to move in soon. These are men who are still considered dangerous, but who – thanks to a Supreme Court decision – are being released from preventive detention in the penal system.
The former prison, which still looks exactly like a prison, has now been baptized the Oberhausen Therapy Center. The facility is being run by the Landschaftsverband Rheinland (LVR), a service association charged with the task by the state of Nordrhein-Westfalen. Brehmer, who is employed by the LVR, is the section head in charge of the new “therapy center.”
On the tour, Brehmer highlights the additional bars on the windows, made of Mangan hard metal, the additional surveillance cameras, the service rooms with the control monitors on each floor. He also points out an unobtrusive grey box mounted on a hall wall: “That’s the personal emergency call system – one of our biggest investments,” he says.
As soon as a guard presses a red button on his mobile phone or pulls a pin out (much in the same way one would remove the pin from a grenade) an emergency call gets sent from this box to a group of guards known as the “alarm group.” They can see what floor the call is coming from, and rush to help.
A million-euro makeover
Nordrhein-Westfalen’s red/green (socialist and green party) government spent some 1.2 million euros on converting the old jail, which used to house 80 prisoners, but is now limited to 18 people for whom 40 guards, doctors, psychologists and social workers will be responsible.
Many walls that previously divided the space into small cells were broken through to create larger spaces – each equipped with a TV, tables and a kitchen. Patients will be living in groups.
Nordrhein-Westfalen is the first German state to come up with a solution for dealing with dangerous criminals who cannot be let back out into society after they have served their prison sentences but who, according to a 2009 decision of the European Court of Human Rights, cannot continue to be detained in a penal institution.
An amendment to the law in 1998 made it possible to continue preventive detention for an undetermined length of time. But the decision of the European Court is relevant to all the so called “old cases” – i.e. cases involving people convicted prior to the change and who, after serving their sentence and a maximum of 10 years preventive detention, were kept behind bars because of the level of danger they represented for society.
German courts reacted differently to the Strasbourg judge’s decision, but a law that went into effect at the beginning of the year stated that prisoners who are considered extremely dangerous or are mentally disturbed must be transferred from preventive detention in a prison to a closed therapeutic facility.
But it’s taking a while to find locations for such facilities and to install them. Meanwhile some detainees, released into society for lack of therapy centers, committed new crimes even though they were under around-the-clock police surveillance. Two weeks ago, a 49-year-old pedophile managed to evade police and shortly afterwards abused a small girl.
The Oberhausen Therapy Center is meant to prevent perpetrators who are potential recidivists from getting back into society too quickly after they are released from preventive detention. But, says head psychologist Verena Peykan, the therapy they are getting is being done with an eye to their eventual return to society.
According to experts, fast results should not be anticipated. These are mostly men, 60 or older who have been behind bars for decades and – with the expectation that they would spend the rest of their lives in jail – were not given therapy.
The first inmate, a 63-year-old man, is due to arrive within a couple of weeks.
The converted Oberhausen jail is seen as a temporary solution until the end of 2012. The state health ministry is looking around for a permanent location – discreetly, so as to keep public opposition to a minimum. ..Source.. by Kristian Frigelj
