Facts
This case involved the possession of electronic files with pornographic content found in the temporary internet cache (cache) of a computer.
The accused X. was convicted of pornography by the District Court III Aarberg-Büren-Erlach. However, the High Court of the Canton of Bern acquitted him with regard to the files in the cache storage. The Attorney General of the Canton of Bern appealed against this judgment in criminal matters.
Considerations
The Federal Supreme Court stated that the possession of electronic data requires both objective custody and subjective intent to control. With regard to the prohibited pornographic data in the cache storage, the computer user has the power of control, as a copy of the pages visited on the internet is available on the hard drive.
However, restraint is required regarding the subjective element of the offense of possessing pornographic files in the cache storage. An inexperienced computer/internet user who is unaware of the existence of the cache storage and the data contained therein is not considered a perpetrator under Art. 197 No. 3bis of the Swiss Criminal Code. On the…