Facts
The District Court of Zurich convicted the appellant X. for multiple acts of sexual acts with a child, multiple acts of pornography, and assault. The High Court of the Canton of Zurich upheld the conviction but reduced the custodial sentence. X. then filed a federal nullity appeal.
In June 2002, during a vacation in Tuscany, the appellant had taken two nude photos of his approximately three-year-old daughter lying on a lounge chair with her legs spread apart. The lower court considered this to constitute the offense of pornography under Art. 197 para. 3 of the Swiss Criminal Code.
Considerations
The Federal Supreme Court concluded that the photos in question cannot be classified as child pornography. While nude photos of children do not necessarily have to emphasize the genital area to be considered pornographic, the decisive factor is that the perpetrator did not influence the child during the production of the photos.
In the present case, these were natural snapshots that the appellant had taken…