Judicial Shift and Culpability: Legitimate Reliance According to the Criminal Court of Cassation (Judgment no. 30516/2025)
The principle of legality is a cornerstone. But what happens if the judicial interpretation of a criminal law changes, making conduct previously lawful now punishable? This "overruling in malam partem" was addressed by the Court of Cassation in Judgment no. 30516 of June 12, 2025. The ruling clarifies the limits for excluding culpability, with a focus on cybercrimes.
Conditions for Excluding Culpability due to Overruling
The Supreme Court (President R. Pezzullo, Rapporteur M. Brancaccio) established that an unfavorable judicial shift can exclude culpability. The conditions are:
- The defendant could rely on a settled judicial rule (preferably from the United Sections) that excluded the criminal relevance of the conduct.
- There were no concrete and specific signs that could foreshadow a future, more unfavorable reconsideration.
This protects citizens from unpredictability (Art. 25 of the Constitution, Art. 7 of the ECHR).
The Court of Cassation's Maxim and Case P. on Abusive Access
Judgment no. 30516/2025 offers this important maxim:
A change in jurisprudence "in malam partem" constitutes a cause for the exclusion of culpability, where the defendant, at the time of the offense, could rely on a settled judicial rule, even more so if enunciated by the United Sections, which excluded the criminal relevance of the conduct, and there were no signs, concrete and specific, that would lead one to foresee that, in the future, the jurisprudence of legitimacy would attribute relevance to that conduct, revising the previous orientation in a more unfavorable sense. (Factual situation concerning abusive access to a computer system in which the Court excluded the existence of an "overruling in malam partem" in relation to an act committed by a person authorized to access, subsequent to United Sections, Casani, - according to whom the purposes are irrelevant if access is made by an authorized person - with decisions already emerging at the time, while aligning with the legal principle affirmed by that ruling, considered censurable, as subsequently held by United Sections, Savarese, even authorized accesses that objectively exceeded the rules and limits established for the access itself).
In the case of defendant P., accused of "abusive access to a computer system" (Art. 615-ter of the Italian Criminal Code), the Court excluded the applicability of overruling. Although the "Casani" interpretation (2012) limited punishability for access by authorized persons, at the time of P.'s offense, "signs" of a more stringent interpretation were already emerging. Subsequent rulings began to consider even authorized accesses that objectively exceeded limits as criminally relevant, anticipating the orientation later consolidated by "Savarese" (2017). P.'s reliance was therefore not unconditional.
Conclusions: Judicial Predictability is Crucial
Judgment no. 30516/2025 serves as a warning: it protects legal certainty but highlights that interpretive evolution cannot be ignored in the presence of clear signals of change. For citizens and professionals, this implies a careful evaluation of the "living law" and its potential evolutions, especially in dynamic fields such as cybercriminal law. The predictability of jurisprudence remains an indispensable value.
