Vorbehalte und Erklärungen für Vertrag Nr.201 - Übereinkommen des Europarates zum Schutz von Kindern vor sexueller Ausbeutung und sexuellem Missbrauch

Art der Erklärung : Vorbehalte
Datum 16/08/2017

Deutschland

Reservation contained in a Note verbale of the Permanent Representation of Germany and the instrument of ratification, deposited on 18 November 2015 – Or. Engl.

1. Reservation pursuant to Article 20, paragraph 3 of the Convention.

Pursuant to Article 20, paragraph 1 of the Convention, each party “shall take the necessary legislative or other measures to ensure” that the intentional production of child pornography, when committed without right (letter a), and the intentional possession of child pornography, when committed without right (letter e), is criminalised. Article 20, paragraph 2 of the Convention states that the term “child pornography” within the meaning of that article includes “any material that visually depicts a child engaged in real or simulated sexually explicit conduct or any depiction of a child’s sexual organs for primarily sexual purposes.”

In Germany, sexual activities with persons under 14 years of age are not allowed. Children who have reached the age specified under Article 18, paragraph 2 of the Convention, are persons of the age of 14 or above.

The distribution, acquisition and possession of pornographic written materials relating to children is governed by section 184 b of Germany’s Criminal Code (Strafgesetzbuch - hereinafter StGB). This section pertains to persons under the age of 14. The distribution, acquisition and possession of juvenile pornographic written materials is governed by section 184 c StGB. This pertains to persons of the age of 14 years and over who have not yet reached the age of 18. Simulated representations and realistic images are not covered by all variants of possession and production in sections 184 b and 184 c StGB. Particularly when the variants of possession and production of child and/or juvenile pornography without intent to distribute involve simulated sexual conduct which does not include “actually existing” children and/or juveniles, there is no identifiable sufficient connection to any legally protected interests. This connection may also be lacking in the case of realistic images. Furthermore, the consent-based production and associated possession of juvenile pornographic materials which portray actual activities may take place within relationships between juvenile couples, in particular, without this necessarily constituting a threat to any legally protected interests.

Therefore, pursuant to Article 20, paragraph 3 of the Convention, the Federal Republic of Germany reserves the right to not apply paragraph 1, letters a and e, to the production and possession of pornographic material

• which contains exclusively simulated representations or realistic images of a non-existent child,
• involving children who have reached the age set in application of Article 18, paragraph 2, where these images were produced and possessed by them with their consent and solely for their own private use.


In Kraft: 01/03/2016 -
Artikel betroffen : 20

Reservation contained in a Note verbale of the Permanent Representation of Germany and the instrument of ratification, deposited on 18 November 2015 – Or. Engl.

2. Reservation pursuant to Article 24, paragraph 3 of the Convention.

Article 24, paragraph 2 of the Convention states that “each Party shall take the necessary legislative or other measures to establish as criminal offences, when committed intentionally, attempts to commit the offences established in accordance with this Convention.”

The German criminal provisions which implement Article 20, paragraph 1 b, d, e and f, Article 21, paragraph 1 c, Article 22 and Article 23 do not provide for criminal liability for attempts where the acts constituting the offences are themselves located so far in advance of the actual violation of the legally protected interests that it is not appropriate to impose liability even earlier by criminalising attempts.

Pursuant to Article 24, paragraph 3 of the Convention, the Federal Republic of Germany therefore reserves the right not to apply paragraph 2 to the offences established in accordance with Article 20 paragraph 1 b, d, e, and f (offences concerning child pornography), Article 21, paragraph 1 c (knowingly attending pornographic performances involving the participation of children), Article 22 (corruption of children) and Article 23 (solicitation of children for sexual purposes).


In Kraft: 01/03/2016 -
Artikel betroffen : 24

Reservation contained in a Note verbale of the Permanent Representation of Germany and the instrument of ratification, deposited on 18 November 2015 – Or. Engl.

3. Reservation pursuant to Article 25, paragraph 3 of the Convention.

Pursuant to Article 25, paragraph 3 of the Convention, the Federal Republic of Germany reserves the right to establish jurisdiction for offences committed abroad by persons who have their habitual residence in the territory of the Federal Republic of Germany (Article 25, paragraph 1 e) only in accordance with the conditions stipulated in section 7 (2) no. 2 StGB.

German criminal law does not contain any provision that implements Article 25 paragraph 1 e in its entirety, i.e. there is no provision pursuant to which offences committed abroad by foreigners or stateless persons who have their habitual residence in Germany are in principle always subject to German criminal law. The kinds of cases relevant in practice are covered by section 7 (2) no. 2 StGB, whereby German criminal law is applicable to offences committed abroad if the offender was a foreigner or stateless at the time of the offence and is discovered in Germany and, although the Extradition Act would permit extradition for such an offence, is not extradited. However, it is conceivable that exceptional cases may arise where such prerequisites are not met.


In Kraft: 01/03/2015 -
Artikel betroffen : 25


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