11 September 2010

Federal Court of Justice (BGH) Rejected Former MP Tauss' Appeal On Sentence for Child Pornography

On 28 May 2010 a Karlsruhe district court handed former Social Democratic member of parliament Jörg Tauss a 15-month suspended sentence for illegally posessing child pornography, which he appealed before the German Federal Court of Justice (BGH).

While he alleged that he had the forbidden material only for work-related research about the scene, the Karlsruhe Chief Judge was of the opinion that “the overview shows that Tauss was not travelling through the virtual child pornography scene in fulfilment of his political duties, but out of private reasons” and explained that Tauss’ claims of special parliamentary exemption from the law were invalid even if Tauss was an expert in online criminality", since "the same powers are valid for all parliamentarians".

Two days after the German Bundestag annulled Tauss’ parliamentary immunity in September 2009 he left the centre-left Social Democratic Party to become the first and only member of the German Pirate Party (Piratenpartei) in the German Bundestag until the general election in September 2009.

After the first-instance sentence, the German Pirate Party, who was rather enthusiastic about their new prominent and "honorary member", did not find it adequate to comment on the evidence but instead called the trial a “bad sign of public prejudgement” and, as many further campaigners of internet freedom, considered the suspended verdict too harsh (see related earlier posting). There even circulated a conspiracy theory among Tauss' supporters (see press statement of the Piratenpartei), according to which the legal action hit him on purpose, because he prominently argued against internet access barriers as proposed by federal secretary Ursula von der Leyen (CDU) in order to block child pornography websites, just as his "censorship" fighting friends of the Piratenpartei (see related earlier posting). Tauss meanwhile voluntarily left the Piratenpartei to "avert any damage to the party". 

By order of 24 August 2010 and based on an opinion of the Advocate General, the Federal Court of Justice rejected Tauss' appeal as "apparently unfounded" even without oral proceedings, so that Jörg Tauss now is finally convicted for acquiring and posessing of child pornographic videos and images (BGH StR 414/10). German-language readers may also refer to legal bloggers comments here, here, here, and here).

Tauss' attorney Jan Mönikes regretted the BGH's decision, because "it is a pity that the BGH has not used the opportunity to clarify the legal boundaries within which an MP may hinself do research in a problematic area, without being liable to prosecution". The possibility of a constitutional complaint was commented by Mönikes in a rather reserved way. During the prodedure, he constantly insisted that the underlying constitutional issue as to the rights of MPs in independent investigations should be resolved by the BGH. Legal experts, however, estimat the chances of a constitutional challenge rather low, since the evidence does not support to regard Tauss' investigations as motivated by any official interest as member of parliament.

The fact that Jörg Tauss himself did not yet comment on the BGH's verdict (e.g. via his blog) is certainly not uncomprehensible. But, as far as I can see, even the Piratenpartei has not yet published some official statement on the final conviction of its former prominent member. It appears that the "pirates" finally dropped their temporary tribune like a hot potato - hopefully due to some sort of insight that the partie's earlier position towards Tauss' "invenstigations" and questionable assertions were not acceptible for a serious political party and would not at all support the political agenda of the Piratenpartei.