Commentary on Judgment No. 24220 of 2023 on Child Pornography and Interpretative Overruling
Judgment No. 24220 of February 22, 2023, filed on June 6, 2023, offers an important reflection on the issue of child pornography and the interpretation of criminal law in relation to fundamental rights. In particular, the Court of Cassation clarifies some crucial aspects concerning the interpretation of Article 600-ter of the Criminal Code, which governs the production of child pornography material, referencing the previous judgment of the United Sections No. 51815 of 2018.
The Legal Context of Interpretative Overruling
The Court of Cassation, with judgment No. 24220, addresses the issue of interpretative overruling, a legal concept that refers to the possibility of a modification in the interpretation of a norm by jurisprudence. In this specific case, it is discussed whether the interpretative modification of the constituent element of the crime of child pornography, introduced by judgment No. 51815 of 2018, could violate the prohibition of retroactivity in malam partem enshrined in Article 7 of the European Convention on Human Rights (ECHR).
Child Pornography - Production of Child Pornography Material - Judgment of the Criminal United Sections No. 51815 of 2018 - Interpretative "Overruling" "in malam partem" - Exclusion - Reasons. Regarding the production of child pornography material referred to in Article 600-ter, first paragraph, no. 1, of the Criminal Code, it must be excluded that, following the judgment of the United Sections No. 51815 of 2018, according to which the existence of a concrete danger of dissemination of such material is not required for the crime to be constituted, Article 7 ECHR is violated, which, as interpreted by the jurisprudence of the ECtHR, enshrines the prohibition of interpretative "overruling" "in malam partem," given that the indicated hermeneutic result was reasonably foreseeable at the time of the commission of the act, due to the rapid evolution of technology functional to the transmission of data on the "web."
Implications of the Judgment
Judgment No. 24220 of 2023 clarifies that, in light of the rapid development of technologies and their influence on content dissemination, the assessment of the crime of producing child pornography material must remain anchored to objective and foreseeable criteria. This approach not only ensures legal certainty but also protects the rights of the accused, avoiding unfavorable retroactive interpretations. It is important to emphasize that the Court reiterated the importance of a balance between the repression of serious crimes like child pornography and the protection of fundamental rights, such as the right to a fair trial.
- Legislative References: Constitution Art. 25
- Criminal Code Art. 2
- Criminal Code Art. 600-ter
- Eur. Conv. Hum. Rights Art. 7
Conclusions
In conclusion, judgment No. 24220 of 2023 represents an important step forward in understanding the crime of child pornography and its legal implications. The Court of Cassation, with its decision, has confirmed the importance of a legal interpretation that respects individual rights, while firmly maintaining the condemnation of criminal behavior. The clarity provided by the Court helps to outline a more stable legal framework, capable of addressing the challenges posed by continuous technological evolution.
