Commentary on Judgment No. 24220 of 2023 on Child Pornography and Interpretative Overruling

The judgment No. 24220 of February 22, 2023, filed on June 6, 2023, offers an important reflection on the theme of child pornography and the interpretation of criminal law in relation to fundamental rights. In particular, the Court of Cassation clarifies some crucial aspects regarding the interpretation of Article 600-ter of the Penal Code, which regulates the production of child pornography material, referring to 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 theme of interpretative overruling, a legal concept that refers to the possibility of a modification of the interpretation of a norm by jurisprudence. In this specific case, it is discussed whether the interpretative modification of the constitutive element of the crime of child pornography, introduced by judgment No. 51815 of 2018, could violate the prohibition of retroactivity in malam partem established by Article 7 of the European Convention on Human Rights (ECHR).

Child pornography - Production of child pornography material - Judgment of the United Sections No. 51815 of 2018 - Interpretative "overruling" "in malam partem" - Exclusion - Reasons. In the matter of the production of child pornography material under Article 600-ter, paragraph one, no. 1, penal 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 configurability of the crime, Article 7 ECHR is violated, as interpreted by the jurisprudence of the European Court of Human Rights, which establishes the prohibition of interpretative "overruling" "in malam partem", since 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 the dissemination of content, the assessment of the crime of producing child pornography material must remain anchored to objective and predictable criteria. This approach not only guarantees legal certainty but also protects the rights of the defendant, avoiding unfavorable retroactive interpretations. It is important to emphasize that the Court reiterated the importance of a balance between the repression of serious crimes such as child pornography and the protection of fundamental rights, such as the right to a fair trial.

  • Legislative References: Constitution Article 25
  • Penal Code Article 2
  • Penal Code Article 600-ter
  • Eur. Conv. on Human Rights Article 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, confirmed the importance of a legal interpretation that respects individual rights while firmly condemning criminal behaviors. The clarity provided by the Court helps to outline a more stable legal framework capable of addressing the challenges posed by the continuous technological evolution.

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