Abusive Access to Computer Systems: The Court of Cassation and the Prohibition of Overruling "in Malam Partem" (Judgment no. 22017/2025)

The Court of Cassation, with judgment no. 22017, filed on June 11, 2025 (President Dr. R. Pezzullo, Rapporteur Dr. E. Carusillo), has provided an important clarification on the delicate balance between the predictability of criminal law and jurisprudential interpretation. The case, which involved the defendant T. C., rejects the appeal against the Court of Appeal of Perugia and focuses on the complex issue of abusive access to a computer system, in relation to the prohibition of interpretive "overruling" "in malam partem".

The Offense of Abusive Access: From the United Sections Casani to Savarese

Article 615-ter of the Criminal Code penalizes abusive intrusion into protected computer systems. Jurisprudence on this offense has undergone a crucial evolution. The United Sections "Casani" (no. 4694 of 2012) established that, for an authorized person, the purposes of access were irrelevant. This orientation was, however, superseded by the United Sections "Savarese" (no. 41210 of 2017), which clarified that even authorized access can become abusive if the agent violates the conditions and objective limits established by the system owner, exceeding the "rules of use". This shift broadened the scope of unlawfulness, focusing on the objective limits of authorization, regardless of intent.

"In Malam Partem" Overruling and Jurisprudential Predictability

The prohibition of "overruling interpretativo in malam partem" is a cornerstone principle of criminal law (Art. 2 of the Criminal Code and Art. 7 of the ECHR), which protects the certainty and predictability of criminal consequences, preventing the retroactive application of more severe jurisprudential interpretations. Judgment no. 22017/2025 fits into this balance, addressing the question of whether, in the case of T. C., a violation of this prohibition was conceivable. The Court rejected the appeal, excluding the existence of "overruling in malam partem" based on the following maxim:

There is no violation of the prohibition of interpretive "overruling" "in malam partem" if, already at the date of commission of the offense, the interpretation of the criminal provision applied to the concrete case, differing from the consolidated jurisprudential framework, was reasonably foreseeable. (Case concerning abusive access to a computer system in which the Court excluded the existence of "overruling in malam partem" in relation to an act committed, by a person authorized to access, after United Sections, Casani, - according to which the purposes are irrelevant if access is made by an authorized person - with decisions already emerging at that time, which, while aligning with the legal principle affirmed by that ruling, considered censurable, as subsequently held by United Sections, Savarese, even authorized accesses that exceeded, on an objective level, the rules and limits established for such access).

The core of the decision lies in the "reasonable foreseeability" of the interpretation. The Court of Cassation noted that, even though the "Savarese" judgment had not yet been issued, jurisprudential trends were already emerging at the time of the facts which, while starting from the "Casani" principle, began to consider authorized accesses that exceeded objective limits as censurable. Absolute certainty is not required, but a sufficiently clear interpretive tendency. The Court therefore assesses the evolutionary dynamics of the law and the legal system's capacity to anticipate future developments.

Conclusions: Responsibility and Predictability in the Digital Age

Judgment no. 22017/2025 of the Court of Cassation represents a fundamental clarification for the interpretation of the offense of abusive access and for the principle of predictability of criminal law. It emphasizes that the prohibition of "overruling in malam partem" is not an obstacle to jurisprudential evolution, but a guarantee that operates when an interpretive change was not in any way foreseeable at the time of the act. For professionals and citizens, this means increased responsibility in discerning the limits of their actions in the digital world and an invitation to constant attention to the evolution of the law. This ruling highlights the importance of:

• Knowing the objective limits of every access authorization.
• Monitoring jurisprudential evolution and interpretive trends.
• Evaluating the constantly transforming regulatory and social context.

Legal certainty, in an era of profound digital transformation, remains an essential pillar for trust in the legal system.