CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 novembre 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 18 December 2023   FIRST SECTION Application no. 20409/23 R.B. against Italy lodged on 18 May 2023 communicated on 27 November 2023 SUBJECT MATTER OF THE CASE The application concerns the foreseeability of the applicant’s conviction for the offence of “production of child pornography”, provided by Article   600   ter of the Criminal Code (“the CC”). At the material time (between 2014 and 2016) and in so far as relevant, the offence provided by Article 600 ter of the CC (in the wording subsequent to the ratification, in 2012, of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse) punished the conduct of producing child pornography or of realising pornographic displays or performances by using a minor aged under eighteen. According to the plenary Court of Cassation (judgment no.   13 of 31   May 2000) and to the subsequent consistent domestic practice ( inter alia , Court of Cassation no.   49604 of 1   December 2009, no.   17178 of 11   March 2010, no.   16340 of 12   March 2015, no.   35295 of 12   April 2016, no.   37835 of 29   March 2017; contra , Court of Cassation no.   27373 of 31   January 2012), the offence provided by Article   600 ter of the CC was a “concrete risk of harm offence” ( reato di pericolo concreto ), thus requiring, as a constitutive element of the crime, that the conduct of production of child pornography entail a real risk of diffusion of the pornographic contents. In the absence of such risk, that is to say whenever “the pornographic material is intended to stay within the private sphere of the producer”, the conduct of production of child pornography would be characterised as falling under the provision of Article 600 quater of the CC, which punishes the possession of pornographic material with imprisonment up to three years. The sanction for the offence of “production of child pornography” provided for by Article 600 ter of the CC   is, instead, of six to twelve years’ imprisonment and of a fine ranging from EUR 24,000 to 240,000. With judgment no.   51815 of 31   May 2018, the plenary Court of Cassation held that the risk of diffusion of the pornographic material could no longer be considered as an element of the offence provided for by Article 600 ter of the CC. According to the Court of Cassation, “the interpretation proposed by the prevailing line of case-law, requiring the need for a risk of diffusion of the pornographic contents, should be considered as overcome in light of the current wording of the provision, and, in any way, outdated”, considering the significant change occurred in the social and technological context. The Court of Cassation based on these factors the conclusion that the departure from the previous consistent line of case-law could not be considered as an unforeseeable extensive interpretation in breach of Article 7 of the Convention. Throughout the proceedings the applicant had argued that he could not be found guilty of production of child pornography, since a constitutive element of the offence (namely, the concrete risk of diffusion of the pornographic content), had not been demonstrated. Relying on the principle established by the Court of Cassation’s judgment no. 51815 of 2018 – thus without ascertaining a concrete risk of diffusion of the pornographic contents (which remained in the applicant’s private sphere until he deleted them from his computer) – the domestic courts convicted the applicant for, among others, the offence of production of child pornography (Article 600 ter of the CC). In particular, the Court of Cassation by judgment no. 2606 of 27 September 2022 (final on the same day and filed with the Registry on 23 January 2023), like the lower courts, dismissed the applicant’s claim, finding that the interpretation of the offence given by the plenary in 2018 was foreseeable given the wide semantic scope of the relevant provision. The Court of Cassation also relied on its judgments no. 1835 of 17 January 2022 and no.   46184 of 17 December 2021. The applicant alleges violations of Articles 6 and 7 of the Convention, complaining that his conviction was based, to his disadvantage, on a new interpretation of the relevant domestic provision resulting from the Court of Cassation’s departure from previous case-law. QUESTIONS TO THE PARTIES 1.     In light of the domestic court’s well-established case-law at the material time (see, inter alia , plenary Court of Cassation’s judgment no. 13 of 31   May 2000) and of the facts reproached to the applicant, was his conviction of the offence of “production of child pornography” under Article 600 ter of the CC in compliance with Article   7 of the Convention?   2.     In particular, was the interpretation of Article 600 ter of the CC adopted by the plenary Court of Cassation in 2018 and applied by domestic courts in respect of the applicant reasonably foreseeable for the applicant at the material time? ( see Del Río Prada v. Spain [GC], no. 42750/09, §§ 77-80 and   91-93, ECHR 2013; compare S.W. v. the United Kingdom , 22   November 1995, Series A no. 335-B and Dragotoniu and Militaru-Pidhorni v. Romania , nos. 77193/01 and 77196/01, § 44, 24 May 2007)?