TF, 20.11.2025, 6B_122/2024
Facts
An individual shared a pornographic video via Instagram showing a person who appeared to be a prepubescent girl performing oral sex on an adult man. In reality, the person was an adult pornographic actress whose appearance had been digitally altered using an age-reduction filter (a phenomenon known as Scheinkinderpornografie).
He is also accused of possessing depictions of violence after receiving video files in a Telegram chat group, which were automatically saved to his device.
Convicted by the Zurich cantonal authorities for pornography (Art. 197 para. 4 SCC) and depictions of violence (Art. 135 para. 1bis SCC), he has appealed to the Federal Supreme Court.
Law
1. Classification of "non-effective" child pornography (Art. 197 para. 4 SCC)
The Federal Supreme Court had to determine, for the first time, whether pornographic depictions featuring adults artificially aged down to appear as minors constitute "non-effective sexual acts with minors" within the meaning of Art. 197 para. 4 SCC.
The analysis is based on the principle of legality (Art. 1 SCC) and on a literal, historical, and teleological interpretation of the provision.
The term "non-effective sexual acts" does not exclude situations where no actual minor is involved, but where the depiction credibly gives the appearance of a minor. Preparatory documents show that the legislature intended to criminalize virtual child pornography (e.g., cartoons, computer-generated imagery), particularly due to the evidentiary difficulties in distinguishing the real from the fictional.
According to the Federal Supreme Court, these evidentiary difficulties are at least as significant, if not more pronounced, when the image is based on a real person who has been artificially aged down than when it involves a cartoon, where the fictional nature is generally recognizable.
The Court also notes that, if one accepts a corrupting effect or an effect of stimulating the real child pornography market, these risks are increased when the depiction features a real person who has the appearance of a minor.
He concludes that such representations fall under the prohibition of "non-effective" child pornography.
2. Possession of representations of violence (Art. 135 para. 1bis SCC)
The offense requires an objective element (factual control over the data, such as saving it on a device) and a subjective element (knowledge of the existence and storage of the files). Conditional intent is sufficient.
Application to the specific case
Regarding pornography, the Federal Supreme Court holds that the video transmitted, although featuring an adult actress, presents the credible appearance of a minor and therefore falls under "non-effective sexual acts with minors" within the meaning of Art. 197 para. 4 SCC. This interpretation is deemed compatible with the principle of legality.
Regarding representations of violence, the files received via Telegram were saved on the appellant's device. The Federal Supreme Court considers that the lower court could, without arbitrariness, conclude that he was aware of this storage. The fact that he had already forwarded another file received in this manner demonstrates that he knew the content remained accessible. He therefore, at the very least, accepted their possession through conditional intent.
Outcome
The Federal Supreme Court dismisses the appeal and upholds the conviction for pornography and possession of representations of violence. The claim for compensation for non-pecuniary damage is declared inadmissible.
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