15-16 February 2014 | 112 comments (112 topical, editorial, 0 hidden)

he only ordered entirely legal pictures from a Canadian nudist site

What I read last (after the state prosecutor made the accusations public) was that it was a bona fide child pornography site taken out last year (so he wasn't netted by internet surveillance but in the records of the site, along with 800 other Germans), but Edathy only ordered 10 items of "class 2" pornography which showed no abuse just full-frontal naked children. The state prosecutor also said that they decided to prosecute after seeing other prosecutors bringing charges against other German purchasers of "class 2" material, and ordered the searching of his home based on experience that people caught for that also have "class 1" material at home. But they found nothing much, possibly since he was informed and apparently destroyed hard drives.

_{*Lunatic*, n.

One whose delusions are out of fashion.}

by DoDo on Sat Feb 15th, 2014 at 08:12:20 AM EST
[ Parent ]

Re: Europe (4.00 / 3)

DoDo:

The state prosecutor also said that they decided to prosecute after seeing other prosecutors bringing charges against other German purchasers of "class 2" material, and ordered the searching of his home based on experience that people caught for that also have "class 1" material at home.

Yes, and this is what sets my alarm bells off. Edathy is known to have purchased stuff that is LEGAL. There was no justification at all for a search warrant. "You have been caught driving with exactly 49 km/h. It is our experience that people who are so near to the speed limit exceed it when they think they won't be caught." It's opening the door to arbitrariness.

by Katrin on Sat Feb 15th, 2014 at 09:14:52 AM EST
[ Parent ]

Re: Europe (none / 0)

Well, he was known for purchasing stuff that was legal from a known vendor of stuff that was not.

If I buy my booze from a place that also peddles coke, then I'm not sure I have that strong a case for disputing a search warrant.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Feb 15th, 2014 at 01:36:19 PM EST
[ Parent ]

No no no! (none / 1)

Wait till statisticians find a correlation between downloading pictures of cats and zoophilia... And if they can't find evidence against you, that shows you are even more perfidious: you must have destroyed it.

A prosecutor needs a REASONABLE initial suspicion based on facts that you have committed an offence. If they can prove that you have bought booze and have no hint that you bought illegal substances, the judge MUST NOT issue a search warrant. (You can't dispute a search warrant except retroactively, by the way.)

Here is a professor of criminal law, very upset, finding clear words, dissecting this outrage better than I can, although interviewed with shockingly prejudiced questions. She calls the behaviour of the prosecution illegal and a violation of fundamental rights.

His behaviour may be improper (what is he doing with pictures of naked minors?) but propriety must not interest the prosecution or the judge. There is no hint that he broke the law. That's all that counts.

by Katrin on Sat Feb 15th, 2014 at 02:40:14 PM EST
[ Parent ]

Re: No no no! (none / 0)

Uh, did you actually read the comment you're responding to? I'm not talking about statistical correlations between legal and criminal habitus. I'm talking about investigating people who gave money to a convicted criminal.

Or do you see no difference at all between buying legal products from some random merchant, and buying legal products from someone whose main revenue stream comes from selling illegal products?

Is it enough for probable cause? I'm inclined to say "no," but I can see the merits of the opposite case as well.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Feb 15th, 2014 at 05:46:27 PM EST
[ Parent ]

Re: No no no! (none / 0)

I am not sure that you had an argument if you could prove that E. knew the site also sold illegal material. I doubt that anyone can.

And please note: I am not arguing that Edathy can't be guilty. I am arguing that there is no evidence for a search warrant or for making the case public. The behaviour of prosecution and judge is outrageous, and I don't want a judiciary like that.

by Katrin on Sat Feb 15th, 2014 at 05:57:16 PM EST
[ Parent ]

Re: No no no! (4.00 / 2)

or for making the case public

It wasn't the prosecutor or the judge who made it public, in fact the former was shocked that basically all details came out.

_{*Lunatic*, n.

One whose delusions are out of fashion.}

by DoDo on Sun Feb 16th, 2014 at 05:08:34 AM EST
[ Parent ]

Re: No no no! (none / 0)

Then it was the police. The press wasn't present by chance when the search took place. There was a photo of the inside of Edathy's flat published. This isn't an investigation where one or two unfortunate things happened. It is a series of outrageous things violating the rights of the suspect.

by Katrin on Sun Feb 16th, 2014 at 07:04:53 AM EST
[ Parent ]

Re: No no no! (none / 0)

That the police would publish it should come as no surprise. They're serial offenders when it comes to strengthening a weak case by whipping up a press lynch mob.

And something really ought to be done about that. Something involving somebody getting fired every time they have one of these "unfortunate leaks."

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sun Feb 16th, 2014 at 09:30:27 AM EST
[ Parent ]

Re: Europe (none / 0)

That's a pretty off analogy. Even if the pictures aren't illegal (though I wouldn't be so sure that the photos in the photosets weren't born in the context of abuse), the purchaser is a paedophile.

_{*Lunatic*, n.

One whose delusions are out of fashion.}

by DoDo on Sat Feb 15th, 2014 at 03:49:26 PM EST
[ Parent ]

Re: Europe (none / 0)

That's possible, but I am arguing for maintaining the rule of the law and presumption of innocence and so. If the photos were born in the context of abuse, prove that Edathy was involved in that. He purchased the pictures, he did not make them. The prosecutor avoids unequivocally calling the photos illegal in his press conference (transcript). What does that tell you about the evidence he has? Paedophilia is no crime--it is a sexual orientation. Sexual acts with children or the possession of child porn are crimes. There is no evidence for them. No facts. The behaviour of the prosecution is really unbelievable (and that of the judge).

by Katrin on Sat Feb 15th, 2014 at 04:08:47 PM EST
[ Parent ]

Re: Europe (none / 1)

The prosecutor avoids unequivocally calling the photos illegal

That's because they aren't unequivocally known to be legal or illegal (because they aren't in the possession of German police). Your first SZ link from earlier explains that.

_{*Lunatic*, n.

One whose delusions are out of fashion.}

by DoDo on Sat Feb 15th, 2014 at 04:28:58 PM EST
[ Parent ]

Re: Europe (none / 0)

Gabriele Wolff (a former prosecutor) says in her blogpost that the BKA had categorised the photos as legal. If the prosecution in Hannover disagrees with an evaluation of the BKA, surely they must have discussed why, and be able to give reasons for that decision.

The whole affair stinks. And although there is the thing you always emphasise, what E. did with the photos, and what sort of people buys such material, and all that: right, but who wants that sort of "justice"?

by Katrin on Sat Feb 15th, 2014 at 04:40:03 PM EST
[ Parent ]

Re: Europe (none / 0)

Would you please read your own link?

_{*Lunatic*, n.

One whose delusions are out of fashion.}

by DoDo on Sat Feb 15th, 2014 at 04:41:27 PM EST
[ Parent ]

Re: Europe (none / 0)

Which one? I gave you a few, and they are contradicting each other. They are contradicting you, too. The only thing that I find clear is that an investigation of the prosecutor is needed.

by Katrin on Sat Feb 15th, 2014 at 04:54:28 PM EST
[ Parent ]

Re: Europe (none / 0)

Fall Edathy: Von "strafrechtlich irrelevant" zur Razzia - Politik - Süddeutsche.de

Edathys Bestellungen fallen, nach derzeitigem Stand, in die Kategorie zwei. In der BKA-Liste steht zu jedem der bestellten Filme die Wertung: "strafrechtlich irrelevant". Das Wort meint eigentlich unerheblich, belanglos. Die Internetermittler in Gießen verwenden deshalb lieber die Bezeichnung "sollte strafrechtlich nicht relevant sein". Einmal vermerkt das BKA: "ohne Beweismittel". Das meint wohl, dieser Film lag den Ermittlern nicht vor.
Fröhlich sagt, seine Behörde habe den Fall eingehend prüfen und mit anderen Fällen vergleichen wollen. In Hannover gibt es derzeit 16 Verfahren mit kanadischem Bezug. Außer Edathy ist keiner der Beschuldigten bekannt. In etwa jedem vierten Fall, so hat Fröhlich aufgeschrieben, gebe es in der Zuständigkeit seiner Staatsanwaltschaft Vorerkenntnisse über die Besteller wegen sexuellen Missbrauchs von Kindern oder wegen Besitzes von Kinderpornografie.
...
Am 10. Februar fertigte ein Richter des Amtsgerichts Hannover einen zweiseitigen Durchsuchungsbeschluss. Er verwendete Blocktexte aus anderen Verfahren. Auch wenn ein Straftatbestand des einschlägigen Paragrafen noch "nicht erfüllt sein mag", spreche der Versand und Erwerb der Filme dafür, dass bei dem Besteller eine pädophile Neigung bestehe. "Aufgrund kriminalistischer Erfahrung" sei davon auszugehen, dass der Besteller auch strafbares Material besitze. Durch die gesamte Akte zieht sich die Floskel, die kriminalistische Erfahrung lehre, dass alles immer viel schlimmer sei.
Der Richter merkte auch an, es bedürfe im Fall Edathy erst noch einer abschließenden Bewertung, ob nicht doch einzelne Aufnahmen den "Begriff der Kinderpornografie" einschließen würden. Ähnlich sieht das Fröhlich...

_{*Lunatic*, n.

One whose delusions are out of fashion.}

by DoDo on Sat Feb 15th, 2014 at 05:38:23 PM EST
[ Parent ]

Re: Europe (none / 0)

Well? The last sentence is particularly damning: the judge admits that he has no evidence that justifies an initial suspicion. He issues the search warrant because the search might perhaps deliver that evidence, which legally must be there in order to justify the search warrant. The judge has broken the law with that.

by Katrin on Sat Feb 15th, 2014 at 05:53:23 PM EST
[ Parent ]

Re: Europe (none / 0)

The judge mentions that the BKA does not sort the material as illegal. The added intention to investigate further if the material didn't (contrary to the first result) contain elements to sort it as illegal to possess is not sufficient to issue a search warrant. The judge really would have needed to make a case that there was reason to believe E. committed a crime, and cite that reason.

by Katrin on Sat Feb 15th, 2014 at 06:07:27 PM EST
[ Parent ]

Re: Europe (none / 0)

Das Bundesverfassungsgericht

In einem Durchsuchungsbeschluss muss der Ermittlungsrichter ein dem Beschuldigten angelastetes Verhalten schildern, das die Voraussetzungen eines Strafgesetzes erfüllt. Die Schilderung braucht nicht so vollständig zu sein wie die Sachverhaltsdarstellung in einer Anklage oder einem Urteil. Es müssen aber ein Verhalten oder sonstige Umstände geschildert werden, die alle wesentlichen Merkmale des Straftatbestandes erfüllen. Nur wenn der zur Kontrolle des Eingriffs berufene Richter sich den in Frage kommenden Straftatbestand vergegenwärtigt, kann die Verhältnismäßigkeit vollständig geprüft werden, weil die Zumutbarkeit des Eingriffs auch von der Schwere der vorgeworfenen Tat abhängt.

by Katrin on Sun Feb 16th, 2014 at 04:19:02 AM EST
[ Parent ]

15-16 February 2014 | 112 comments (112 topical, 0 editorial, 0 hidden)

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