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CHILD PORNOGRAPHY: RECLASSIFICATION FROM FELONY TO MISDEMEANOR

An example of a standalone plea (αυτοτελής ισχυρισμός) before the Mixed Jury Court seeking the reclassification of the felony of possession of child pornography material into the misdemeanor of mere access to child pornography material. The felony carries a sentence of imprisonment of five years and above, whereas the misdemeanor carries a sentence of imprisonment of up to five years and is usually time-barred if 8 years have elapsed since the commission of the offence.

Example

A successful acquittal judgment obtained by our firm in a child pornography case before the Athens Mixed Jury Court: Acquittal Judgment Child Pornography Mixed Jury Court

Explanatory video on the offence of Child Pornography

Watch a video describing Child Pornography as one of the most frequent forms of cybercrime:

Read about a successful effort of ours to reclassify the charge of Child Pornography from a felony to a misdemeanor:

Before the 2nd Mixed Jury Court of …………..

Defendant: ………………

Hearing date: ………..

Cause-list number: …

STANDALONE PLEA

FOR RECLASSIFICATION FROM FELONY TO MISDEMEANOR

AND TERMINATION OF CRIMINAL PROSECUTION DUE TO LIMITATION

(Filing of declaration, following its oral presentation, pursuant to Article 141§2 of the Code of Criminal Procedure (KPD))

PROCEDURAL ISSUES

  1. All creation dates of the files in question, according to the Laboratory Forensic Report dated 03-08-2014 (exhibit 4), are earlier than or later than the dates of commission of the offence, the time of commission of the act being from 04-06-2013 to 24-07-2013, as stated in referral order no. ………… of the Council of Misdemeanor Judges of Athens (exhibit 5). Therefore, at the stated time of commission of the act and with the stated file creation dates, the defendant’s act does not satisfy the actus reus of Article 348A§1,4b of the Penal Code (PK). The only earlier creation date of an image file in question, 01-02-2013, concerns an image file located in Annex 1.1 of the accompanying DVD (page 3, Laboratory Forensic Report, exhibit 4), but for those files the same Forensic Report states: “their content may relate to child pornography material”. Indeed, examination of those images with the “naked eye” (exhibit 10) shows that — except for image 0001.JPG which concerns Adult Pornography, given the bodily features showing oral sex between two adult women — the remaining images depict sensual commonplace urban everyday scenes.
  2. Furthermore, on page 3 of the same referral order, regarding the address of the defendant’s home, for the Report on House Search and Seizure dated 28-01-2014 (exhibit 1), the street and number are erroneously stated as: …………..
  3. Criminal prosecution has been initiated in a manner which obliges the court to examine whether an issue of absolute nullity arises. According to the commentary on the Code of Criminal Procedure (KPD) by Lambros Margaritis, Article 171§1b: “Alteration of the charge entails absolute nullity, because the provisions governing the initiation of criminal prosecution by the Public Prosecutor are violated, and constitutes a ground for cassation of the judgment. Such an alteration exists when the act for which the defendant has been convicted is substantially different from that for which criminal prosecution was initiated, in terms of time, place and other circumstances, so as to constitute objectively a different offence [Areios Pagos 94/2009 Nomos, AP 293/2006, AP 1700/2004, AP 733/2004, AP 1381/2004]“.

EVALUATION OF EVIDENCE

  1. The 8 photographs of Child Pornography material accompanying the case file are not contained on the accompanying DVD, which contains the files of the two hard drives “P1-HD” and “P2-EXTHD” from the defendant’s PC, nor are they referenced within the Laboratory Forensic Report of the Directorate of Criminological Investigations.
  2. According to the defendant’s statement, when, while “downloading” adult pornography material files, he discovered among them child pornography files, he then deleted ALL of the latter using “Shift+Delete”, meaning that their deletion was irreversible. The “Shift+Delete” function, or double deletion through the “Trash” of any file, deletes not the file itself, but the references to the start and end addresses of those files from the File Allocation Table (FAT) of the hard drive, so that the operating system makes that space available for reallocation to new files. The files in the “unallocated clusters” are inaccessible to the ordinary user. Only forensic experts using specialised file recovery software for the unallocated space can “see” those files, because the specialised software scans the hard drive for specific file types and automatically generates a new “FAT” with its own file names so that the expert can “see” them. Examples of such files inaccessible to the user are found in Annex 1.2 of the DVD described in the Laboratory Forensic Report (exhibit 4, page 4). The defendant of course maintains that ALL the deleted child pornography material files were not merely deleted, but inaccessible, that is, he had deleted them with “Shift+Delete”.
  3. For the two video files, the Laboratory Forensic Report (exhibit 4, page 8) states that “their content may relate to child pornography material“. Indeed, from the “naked eye” examination of the two videos in Annex 2.1 of the accompanying DVD, the video “0001.0000.avi” depicts pornographic material featuring a small-bodied Thai woman of indeterminate age and certainly over 15 years old. The video “0002.000.avi” is a 27-minute video, of which only 5 minutes concern pornographic material in which two minors evidently over 15 years old engage in oral sex without any display of female genital organs.
  1. Evaluating the ten (10) representative images of the Laboratory Forensic Report we observe the following:
  2. Image 1 and Image 2 in the Forensic Report (exhibit 4, page 4): as the Forensic Report itself states on page 3, “their content may relate to child pornography material“, and indeed from the “naked eye” observation in Annex 1.1 of the accompanying DVD neither the age nor the necessary inducement of sexual arousal arises, since these are images of sensual commonplace urban everyday scenes.
  3. Image 3 and Image 4 in the Forensic Report (exhibit 4, page 4): as the Forensic Report itself states on page 4, “their content appears to relate to child pornography material“, and indeed from the “naked eye” observation we see that they concern “cartoon” image files depicting dolls, and these files were either deleted by the defendant according to the Report or were inaccessible according to his own statement.
  4. Image 5 and Image 6 in the Forensic Report (exhibit 4, page 5): as the Forensic Report itself states on page 4, “their content relates to child pornography material“, and indeed from the “naked eye” observation we see that they concern hard-core pornography image files featuring a minor under 15 years old, but to which the defendant did not have access, since they were located in the unallocated space of the hard drive. That is, the defendant had deleted them twice, once normally and a second time from the Trash, or had “Shift-Deleted” the said images, a fact pointing to an intention to delete and not to possess Child Pornography material.
  5. Image 7 and Image 8 in the Forensic Report (exhibit 4, page 8): as the Forensic Report itself states on page 8, “their content appears to relate to child pornography material“, and indeed from the “naked eye” observation we see that they concern “cartoon” image files, and since 39 out of 44 “cartoon” files had been deleted by the defendant, the Report does not tell us whether the specific Images 7 & 8 belonged to the deleted ones or not. Nor can it be determined from the examination of the accompanying DVD folder Parartima2.2/PARARTIMA_2.2_files whether they were deleted or not. In any event, we are not certain whether these images infringe the legally protected interest of minority; indeed the relevant Directive 2011/93/EU (Art. 5§7) leaves it to the discretion of Member States to decide whether virtual child pornography shall remain unpunished (page 383, exhibit 6).
  6. Image 9 and Image 10 in the Forensic Report, page 9: as the Forensic Report itself states on page 9, “their content relates to child pornography material“, and indeed from the “naked eye” observation we see that they concern child pornography image files (the most extreme of which is Image 9), but which the defendant had deleted from his hard drive according to the Report or were inaccessible according to his own statement.
  7. Therefore, no image file can establish the defendant’s guilt for the felony form of the offence of Child Pornography (Article 348A§4b PK), nor for the first two misdemeanor forms (Article 348A§1 PK and Article 348A§2 PK).

MISDEMEANOR FORM OF MERE ACCESS (ARTICLE 348A§6 PK)

  1. The defendant does not deny the factual circumstances of the indictment, but he denies the stated dates of commission and also denies that the factual circumstances satisfy the requirements of the felony form (Article 348A§4b PK) and of the first two misdemeanor forms (Article 348A§1 PK and Article 348A§2 PK) of the offence of Child Pornography. The said factual circumstances satisfy the requirements of the actus reus and mens rea of the third misdemeanor form (Article 348A§6 PK), mere acquisition of access to child pornography material via information systems, since the defendant, having deleted the overwhelming majority of the files in question, and indeed without any storage structure, demonstrates an intention to delete those files and not an intention to possess them. “The provision of §6 establishes a sui generis offence which operates supplementarily to the procurement and possession of child pornography material, targeting that conduct which, while constituting contact between the perpetrator and the material, does not create a stable relationship with it” (page 399, Paraskevopoulos – Fytrakis, “Punishable Sexual Acts”, 2nd ed., Sakkoulas 2021) (exhibit 6).
  2. According to the Report on House Search and Seizure dated 28-01-2014 and the Sworn Examination Report dated 28-01-2014 of the competent police officer it was established that “From the on-site search of the aforementioned storage media, no possession of child pornography material was established” (exhibit 1). This is also confirmed by the Examination Report dated 05-06-2014 of the defendant/suspect during the police preliminary investigation, in which he declares: “When I find that among the files I have downloaded there are also files containing child pornography material, I delete them immediately“. This statement of the defendant, in conjunction with the characterisation of the overwhelming majority of the files in question as deleted, demonstrates the intention to delete the child pornography material and the lack of the subjective element of possession. (Areios Pagos 1301/2019 on deleted files) (exhibit 9) and (AP 643/2020 on methodical engagement and systematic storage) (exhibit 8).

ACTUS REUS OF THE ACT

  1. The entire indictment is essentially based on 4 jpg images and 2 videos which are alleged to satisfy the actus reus of Article 348A§1,4b PK. From the laboratory examination of the storage media it emerged that the non-deleted child pornography files which the defendant could have accessed were 4 jpg images on the “P1-HD” disk (exhibit 4, page 3) and 2 videos on the “P2-EXTHD” disk (exhibit 4, page 8). The Forensic Report, however, expressly states in both cases that “their content may relate to child pornography material”. By contrast with the case of, for example, 57 deleted image thumbnails on the “P1-HD” disk, where it is categorically stated that “their content relates to child pornography material” (exhibit 4, page 5).
  2. Therefore, the Forensic Report expressly disputes that the content of the non-deleted 4 jpgs and 2 videos relates to child pornography, nor does it emerge from the “naked eye” examination that their age is below 15 years for the characterisation of the act as a felony, as required by Article 348A§4b PK.

MENS REA OF THE ACT

  1. An exhibit from the Laboratory Forensic Report (exhibit 4) which is alleged to demonstrate the defendant’s intent and to establish the mens rea of Article 348A §1,4b PK is the 8 search terms for child pornography material (exhibit 4, page 7), which contain words such as “pedo”, “preteen”, but which also contain words such as “kleuterkutje”, “knabinoj”, of which the first is a German word meaning “oral sex” and the second is a word in the Esperanto language meaning “girls”. The defendant, however, apart from the little English that we all more or less know, is in no way shown to know even a little German or Esperanto.
  2. This fact supports the defendant’s contention that he carried out copy/paste into the search engine of names of adult pornography files which contained within them words unknown to him pointing to child pornography material. Therefore, none of the above eight words were typed by the defendant on their own into the search engine, but with his mouse and copy/paste he entered them into the search engine among various other words, in various languages, as they were contained in the names of pornography files, the content of which indeed mixes images of adults and minors, so that in the names of those files words for adult and child pornography material are mixed.
  3. As regards the deleted virtual representations (cartoons) (exhibit 4, page 4 and page 9) of child pornography, in the new 2nd edition (2021) of the book “Punishable Sexual Acts” by Paraskevopoulos and Fytrakis, Sakkoulas Publications, on page 375 (exhibit 6) it is stated as follows: “A problem however arises in the case of virtual child pornography, or — in the words of Art. 348A PK — when it concerns a virtual depiction of the body of minors. It is argued, in particular, that here this is not even a form of abstract endangerment of sexual freedom and of minority, but a disguised incitement to commit the offence of sexual exploitation of minors” (page 375, exhibit 6). Likewise, the same book at (page 382, exhibit 6) states regarding depictions of pornographic material that “the inducement of sexual arousal must here be the principal purpose of the depiction or representation, and not a secondary or incidental one . . . Indeed, the purpose of inducing sexual arousal must arise “manifestly”, in other words, evidently, without any need for special examination, and with certainty, i.e. without dispute; conversely, an ambiguous purpose, i.e. between achievement of a certain aesthetic effect and induction of sexual arousal, does not fall within the meaning of the law“, as is the case with the specific Japanese cartoons whose primary purpose is the entertainment of viewers. That is why Directive 2011/93/EU (Art. 5§7) leaves it to the discretion of Member States to decide whether virtual child pornography shall remain unpunished (page 383, exhibit 6).

FINDINGS OF CASE LAW

  1. From the case law (e.g. AP 1301/2019, exhibit 9), the following substantive and legal findings, critical and necessary for the establishment of a conviction, emerge:

a) The specific circumstances under which the defendant’s possession of child pornography material was established.

From the Sworn Examination of the police officer (exhibit 2) who conducted the on-site search of the PC, no incriminating files emerged, which is why, as the defendant will state in his defence statement at the hearing, his Laptop was not seized during the same on-site search. Such incriminating files as did emerge resulted later from the examination of the two seized hard drives at the Computer Systems Exhibits Examination Laboratory of the Directorate of Criminological Investigations.

b) The large number of files and videos.

  1. The number of files found at the Laboratory on the two hard drives is as follows: on the internal hard drive four (4) jpg image files, the content of which is disputed as belonging to child pornography material according to the Forensic Report (exhibit 4, page 3), and on the external hard drive two (2) video files, the content of which is also disputed as belonging to child pornography material (exhibit 4, page 8), and finally five (5) cartoons (illustrated image files) (exhibit 4, page 8), which are deleted, but the content of which is also disputed as belonging to child pornography material according to the Laboratory Forensic Report and Directive 2011/93/EU Art. 5§7.
  2. In addition, from the “naked eye” examination of the case-file DVD, the first pornographic video concerns a small-bodied Thai young woman with small breasts, but those bodily features are commonly found in adult women of that origin. The second video on the case-file DVD concerns two women engaged in homosexual sexual acts, but their bodily features show them to be adults. The remaining files — apart from the 4 jpgs, 2 videos and 5 cartoons — were either deleted or inaccessible to the defendant.

c) The manner of procurement and storage of the material.

All the files — deleted, non-deleted or inaccessible — which the defendant downloaded from the internet, showed no systematic storage, that is, at no time did the defendant create a folder/sub-folder structure to categorise those files. Therefore, his lack of methodical engagement with Child Pornography is established.

d) The content of the child pornography material.

From the laboratory examination of the exhibit hard drives, internal (P1-HD) and external (P2-HD), there emerged:

  1. “the content may relate to child pornography material” in the 4 jpg image files (P1-HD), the 2,904 deleted (cartoon) illustrated image files (P1-HD), the 2 video files (P2-HD) and the 5 (44 minus 39 deleted) illustrated image files (P2-HD).
  2. “The content relates to child pornography material“, on the one hand in the 57 image thumbnails (P2-HD), which however are not accessible to the defendant since they are located in the unallocated space, and, on the other hand, in the 21 deleted image files (P2-HD).
  3. Files without content, whose “name appears to relate to child pornography” we find, first, in the 20 configuration [torrent] files (P1-HD), second, in the 8 keywords from the search history (P1-HD) and, third, in the 1 “known.met” log file (P1-HD) with entries of which 161 are merely names. In simple terms, the specific findings — 20 torrents, 8 searches and the “known.met” log file — of the Laboratory Forensic Report are mere file names without content, so they do not fall within the actus reus of Article 348A PK, which presupposes image or video files with child pornography content. Furthermore, of the 8 search terms, some are in languages unknown to the defendant, such as German and Esperanto.

e) Knowledge of the age of the minors in such material.

  1. Of the 8 PRINTED PHOTOGRAPHS accompanying the case file, only in 2 can it be discerned that their content relates to child pornography material. These 8 printed photographs do not belong to the non-deleted, deleted or inaccessible files of the defendant. MOST IMPORTANTLY: THE 8 PRINTED PHOTOGRAPHS ACCOMPANYING THE CASE FILE DO NOT EXIST WITHIN THE DVD OF THE LABORATORY FORENSIC REPORT, NOR ARE THEY REFERENCED IN IT.
  2. The 10 representative images of the Laboratory Forensic Report are evaluated extensively in paragraph 7.
  3. Therefore, no image file can establish the defendant’s guilt for the felony form of the offence of Child Pornography (Article 348A§4b PK), nor for the first two misdemeanor forms (Article 348A§1 PK and Article 348A§2 PK).

CONCLUSIONS

  1. From the evidence under examination in the case file and primarily from the non-systematic storage of child pornography material in folders/sub-folders and the absence of messaging with minors (sexting: e-mails, messenger, viber, groups, facebook, zoom etc.), it has been established the defendant’s non-paedophilic identity and the exclusion of any “taking of action” (page 391, exhibit 6).
  2. Furthermore, the 8 search terms for child pornography material (exhibit 4, page 7), which point to the mens rea of the act, contain words such as “kleuterkutje”, “knabinoj”, of which the first is a German word meaning “oral sex” and the second is in the Esperanto language meaning “girls”. However, it does not emerge from the case file that the defendant knew, apart from a little English, any German or Esperanto, a fact pointing to the defendant’s contention that he carried out copy/paste into the search engine of names of adult pornography files, which contained within them words pointing to child pornography material. Therefore, the defendant did not have the purpose of finding child pornography material, but rather adult pornography, that is, his act does not satisfy the mens rea of Article 348A§1,4b PK.
  3. The overwhelming majority of the child pornography material files were found deleted (once) or inaccessible (deleted twice) by the defendant. But even in the pornography files that were accessible (4 jpgs, 5 cartoons, 2 videos), their content is disputed as belonging to child pornography material, according to the Laboratory Forensic Report itself. Therefore, the defendant’s act does not satisfy the actus reus and mens rea of the offence of Child Pornography under Article 348A PK.

Given that the occasional commission of the said punishable act has been established, taking into account the minimal number of files and the indeterminate nature of their content, doubts have arisen as to whether the defendant had indeed acquired a stable inclination, as an element of his personality, to the commission thereof, or whether he committed the aggravating circumstance of the punishable act of child pornography involving minors under 15 years old.

The act committed by the defendant during the period from 04-06-2013 to 24-07-2013 — according to the referral order — has the character of a misdemeanor, which however has become time-barred, because from that date until today a period exceeding eight (8) years has elapsed (Articles 1, 2 para. 1, 5 para. 1, 14, 16, 17, 18, 26 para. 1 sub-para. a, 27 para. 1, 51, 53, 61, 63, 65, 79, 348A para. 1, 4b PK).

Consequently, criminal prosecution against the defendant for the offence attributed to him must be definitively terminated, in accordance also with case law (e.g. AP 735/2014, Mixed Jury Court of Appeals of Crete 134/2017) (exhibit 6).

LIST OF SUPPORTING EXHIBITS

I produce and rely upon the following documents:

  1. The Report on House Search and Seizure dated 28-01-2014.
  2. The Sworn Examination Report of the competent police officer dated 28-01-2014, regarding the above search.
  3. The Examination Report of the defendant/suspect dated 05-06-2014 during the police preliminary investigation.
  4. The Laboratory Forensic Report dated 13-08-2014 of the Directorate of Criminological Investigations, Computer Systems Exhibits Examination Laboratory.
  5. Referral order no. 1654/2019 of the Council of Misdemeanor Judges of Athens.
  6. 2nd edition 2021 of the book “Punishable Sexual Acts” by Paraskevopoulos and Fytrakis, Sakkoulas Publications.
  7. AP 735/2014 and Mixed Jury Court of Appeals of Crete 134/2017, in which the felony form (Article 348A§4b PK) of the offence of child pornography is reclassified into its misdemeanor form (Article 348A§1 PK).
  8. AP 643/2020, in which the additional requirements of methodical engagement and systematic storage for the felony form of the offence of Child Pornography are set out.
  9. AP 1301/2019, in which the significance of the deletion of child pornography material files and the substantive and legal findings of case law for establishing a conviction are set out.

For these reasons

I request the termination of criminal prosecution of the defendant on the charge of the misdemeanor form of the offence of child pornography, on grounds of expiry of the eight-year period since the commission of the offence.

My standalone pleas above shall be entered into the minutes of the hearing exactly as they were raised before the courtroom of your court during the public and oral proceedings, and which are formulated in writing in this pleading.

Athens, ……………

Counsel of Record

Dimitrios Ziamparas

 

FREQUENTLY ASKED QUESTIONS ON CHILD PORNOGRAPHY: RECLASSIFICATION FROM FELONY TO MISDEMEANOR

1. What sentence am I facing for possession of child pornography material?

The felony form of Article 348A§4b of the Penal Code (PK) carries imprisonment of five years and above, while mere access to material via information systems (Article 348A§6 PK) is classified as a misdemeanor with a sentence of imprisonment of up to five years. The distinction is critical, since misdemeanors are as a rule time-barred after the lapse of eight years from commission. With proper defence and a standalone plea for reclassification of the charge, termination of criminal prosecution due to limitation, or even acquittal, can be achieved. Each case is decided on the basis of its factual circumstances, the forensic report and the condition of the files found.

2. If the files are deleted, does that prove possession?

The deletion of files, especially using “Shift+Delete” or by double deletion via the trash bin, demonstrates an intention to dispose of the material, not to possess it. Such files are placed in the unallocated space of the hard drive and become inaccessible to the ordinary user. The case law of Areios Pagos (indicatively AP 1301/2019) accepts that deleted files do not establish the subjective element of possession. The defendant may invoke the lack of a stable relationship with the material, which leads to reclassification of the charge into the milder form of mere access.

3. What can I do if I dispute the forensic report?

The forensic report can be disputed both as to its content and as to its conclusions. Formulations such as “may relate” or “appears to relate” to child pornography material do not establish the actus reus of the offence with certainty. Additionally, “naked eye” examination assesses whether the images really concern minors under 15 years old, and whether the purpose of inducing sexual arousal arises. In cases of virtual representations (cartoons), Directive 2011/93/EU leaves discretion to Member States. The defendant has the right to request a supplementary forensic examination or to submit a technical expert opinion.

4. How long does such criminal proceedings last?

The overall proceedings, from the seizure of the storage media until the final ruling by the Mixed Jury Court, generally last from three to seven years. They include a preliminary investigation stage, a laboratory examination by the Directorate of Criminological Investigations, referral by order of the Council of Misdemeanor Judges, and final adjudication. The long time gap between commission and adjudication may operate in the defendant’s favour, particularly if reclassification into a misdemeanor is achieved and at the same time the conditions for limitation have been satisfied. At second instance, by way of appeal, the proceedings are extended further.

5. What documents and evidence do I need?

Essential are the Search and Seizure Report, the Laboratory Forensic Report with the accompanying DVD, the referral order, the sworn examination reports of police officers, and the defendant’s defence statement. It is useful to gather technical IT expert opinions explaining the operation of unallocated space and the nature of deleted files, as well as case law material (in particular AP 643/2020, AP 1301/2019). The defendant benefits from any element demonstrating absence of methodical engagement or systematic storage, such as absence of organised folders, of keywords in the native language, or of browsing history.

6. What is the role of the lawyer in such cases?

The lawyer takes over the defence from the first stage of the preliminary investigation, safeguarding the right to silence and the proper taking of the defence statement. He thoroughly studies the forensic report, identifies ambiguities in the formulations “may/appears to relate”, checks the times and places of commission for issues of absolute nullity, and formulates standalone pleas for reclassification of the charge from felony to misdemeanor. Our firm has obtained acquittal judgments in child pornography cases before the Athens Mixed Jury Court, leveraging expertise in Cybercrime and in-depth knowledge of the relevant case law and Directive 2011/93/EU.


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