JUDGMENT NO. 91

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of: President: Augusto Antonio BARBERA; Judges: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D'ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has rendered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 600-ter, first paragraph, number 1), of the Penal Code, referred by the Ordinary Court of Bologna, Second Criminal Section, in the proceedings against P. B., with order of September 15, 2023, registered at no. 139 of the register of orders 2023 and published in the Official Gazette of the Republic no. 43, first special series, of the year 2023.

Heard in the deliberation chamber on April 16, 2024, the Reporting Judge Filippo Patroni Griffi;

Deliberated in the deliberation chamber on April 16, 2024.

Facts

1. - By order of September 15, 2023, registered at no. 139 of the register of orders 2023, the Ordinary Court of Bologna, Second Criminal Section, raised, with reference to Articles 3 and 27, first and third paragraphs, of the Constitution, questions of constitutional legitimacy of Article 600-ter, first paragraph, number 1), of the Penal Code, insofar as it does not provide, for the crime of producing pornographic material by using minors under the age of eighteen (hereinafter also: child pornography material), the mitigating circumstance for cases of lesser gravity.

1.1. - The referring judge explains that he must judge an accusation of producing child pornography material, a crime that would have been committed with several actions implementing the same criminal design, as well as the grooming of minors. In particular, the defendant, using his father's telephone line and a pseudonym, contacted underage girls, sending photos of his genitals and obtaining from some of the interlocutors, at his request, photos depicting their "secondary sexual organs", thus inducing the victims to send him child pornography material.

1.2. - As to relevance, the a quo judge assumes the direct and current impact of the challenged provision in order to define the judgment.

This is because the defendant is called to answer for the crime under Article 600-ter, first paragraph, number 1), of the Penal Code, a crime in which the conduct he held of creating child pornography material through the "use" of underage girls at the time of the facts would fall. In this case, however, it would be a matter of conduct of lesser gravity, as can be seen from a series of elements: the limited age difference between the defendant (just eighteen years old) and the victims (thirteen and fourteen years old); the subject of the child pornography images, depicting only "secondary sexual organs"; the absence of commercial or dissemination purposes; the lack of particular techniques of psychological manipulation or emotional seduction, or any insidious and treacherous pressures symptomatic of a more reprehensible exploitation of one's position of superiority in terms of age and experience, since the incitement took place through persuasion not characterized by particular obstinacy or insinuation (the production and forwarding of the photographs took place, with respect to the first victim, almost at simple request, although preceded by deception about age, and, with respect to the second, following a mere request, "albeit "insistent"", by the defendant).

1.3. - As to non-manifest unfoundedness, the a quo judge notes that Article 600-ter, first paragraph, number 1), of the Penal Code, providing as a penal treatment imprisonment from six to twelve years and a fine from €24,000 to €240,000, without providing for mitigating circumstances in cases of lesser gravity, would violate Articles 3 and 27, first and third paragraphs, of the Constitution.

First of all, the unreasonableness of the penal treatment is argued which, in its excessive severity, would prevent the judge from adapting the penalty to the specific case, mitigating the punitive response, which is very severe, in the presence of objective elements - relating to means, methods of execution, degree of compression of the dignity and the correct sexual development of the victim, physical and psychological conditions of the latter also in relation to age, occasional or repeated conduct and extent of the damage caused, also in psychological terms - indicators of a lesser gravity of the fact.

The wording of the challenged provision, which includes in its application situations significantly different in terms of the degree of offense to the protected legal asset, in the absence of the provision of a "safety valve", would therefore not allow the imposition of a penalty adequate to the specific case. Nor would the possible application of the generic mitigating circumstances be helpful, which, as clarified by the constitutional jurisprudence (Judgment No. 63 of 2022 is cited), are aimed at mitigating the measure of the penalty in the presence of certain subjective and objective indicators and not at correcting the possible disproportion of the minimum edicts.

The challenged provision would also violate the principles of personality of criminal responsibility and the rehabilitative purpose of the penalty, enshrined respectively in the first and third paragraphs of Article 27 of the Constitution, since the disproportion resulting from the omitted provision, on the one hand, would hinder the individualization of the penalty, a corollary of the personal nature of criminal responsibility, and, on the other, would debase its rehabilitative function since a disproportionate penalty risks being perceived by the convict as unjust.

For these reasons, the referring judge believes that the possible mitigation to an extent not exceeding two-thirds, for cases of lesser gravity, already provided for the criminal offenses of sexual violence and sexual acts with a minor under Article 609-bis and 609-quater of the Penal Code, should be extended to the challenged provision.

2. - The President of the Council of Ministers did not intervene in the proceedings and the defendant did not appear.

Reasons

1. - By order registered at no. 139 of the register of orders 2023, the Court of Bologna, Second Criminal Section, raised, with reference to Articles 3 and 27, first and third paragraphs, of the Constitution, questions of constitutional legitimacy of Article 600-ter, first paragraph, number 1), of the Penal Code, insofar as it does not provide, for the crime of producing child pornography material, the mitigating circumstance for cases of lesser gravity.

1.1. - The referring judge explains that he must judge an accusation of producing child pornography material, emphasizing that the conduct subject to the accusation must be considered of lesser gravity, in light of a series of elements: the limited age difference between the defendant (just eighteen years old) and the victims (thirteen and fourteen years old), the subject of the child pornography images, depicting only "secondary sexual organs", the absence of commercial or dissemination purposes, the lack of particular techniques of psychological manipulation or emotional seduction, or any insidious and treacherous pressures symptomatic of a more reprehensible exploitation of one's position of superiority in terms of age and experience, the incitement having taken place through persuasion not characterized by particular obstinacy or insinuation (the production and forwarding of the photographs took place, with respect to the first victim, almost at simple request, although preceded by deception about age, and, with respect to the second, following a mere request, "albeit "insistent"", by the defendant).

The a quo judge complains about the unreasonableness of the penal treatment established by Article 600-ter, first paragraph, number 1), of the Penal Code, which, in its excessive severity and in the absence of a "safety valve", also considering the significant harshness of the minimum penalty (equal to six years of imprisonment), would prevent him from grading the punitive treatment; he would therefore be prevented from adapting the penalty to the specific case in the presence of objective elements - relating to means, methods of execution, degree of compression of the dignity and the correct sexual development of the victim, physical and psychological conditions of the latter also in relation to age, occasional or repeated conduct and extent of the damage caused, also in psychological terms - indicators of a lesser gravity of the fact. The challenged provision would also violate the principles of personality of criminal responsibility and the rehabilitative purpose of the penalty, enshrined respectively in the first and third paragraphs of Article 27 of the Constitution, since the disproportion resulting from the omitted provision, on the one hand, would hinder the individualization of the penalty, a corollary of the personal nature of criminal responsibility, and, on the other, would debase its rehabilitative function since a disproportionate penalty risks being perceived by the convict as unjust.

For these reasons, the referring judge believes that the possible mitigation to an extent not exceeding two-thirds, for cases of lesser gravity, already provided for the criminal offenses of sexual violence and sexual acts with a minor under Articles 609-bis and 609-quater of the Penal Code, should be extended to the challenged provision.

2. - The questions - concerning only the crime of producing child pornography material, thus excluding the different crime of creating pornographic performances or shows provided for by the same number 1) of the first paragraph of Article 600-ter of the Penal Code - are well-founded.

3. - According to consistent constitutional jurisprudence, the discretionary assessments of penalty sentencing - as the maximum expression of criminal policy - are the responsibility of the legislator, with the only limit of penal choices that prove to be arbitrary or manifestly unreasonable (ex multis, among the most recent, Judgments No. 46 of 2024, No. 120 of 2023, No. 260 and No. 95 of 2022, No. 62 of 2021).

In defining its constitutional legitimacy review, this Court, at least since Judgment No. 343 of 1993, has developed a model of review on the "intrinsic" proportionality of the penalty, so as to ensure that it is adequately calibrated to the specific fact; and this also independently of the identification of a precise tertium comparationis in the light of which to conduct the proportionality scrutiny (see, more recently, among others, Judgments No. 136 of 2020 and No. 284 of 2019).

In particular, in the scrutiny of constitutional legitimacy on the proportionality of the penalty, the particularly broad wording of the challenged provision assumes central importance, the normative latitude of which is such as to include significantly diversified crimes in criminological terms and in terms of disvalue; and precisely in such cases the need to provide for reductions has been emphasized in order to guarantee the possibility of grading and individualizing the penalty with respect to the specific disvalue of the individual conduct and to ensure respect for the principles established by Articles 3 and 27 of the Constitution (ex multis, Judgments No. 120 of 2023, No. 244 of 2022, No. 117 of 2021, No. 88 of 2019, No. 106 of 2014 and No. 68 of 2012).

In some cases, the excessive harshness of the minimum penalty has also been taken into consideration, which, as such, is capable of preventing the judge from grading the penalty to adapt it to the specific case and to the specific disvalue of the incriminated conduct (ex multis, Judgments No. 46 of 2024, No. 120 of 2023, No. 244 and No. 63 of 2022, No. 143 of 2021 and No. 68 of 2012).

3.1. - Both aspects - extensive normative latitude and particularly high minimum penalty - have been highlighted, most recently, by Judgment No. 120 of 2023, which declared the unconstitutionality of Article 629 of the Penal Code - for violation of Articles 3 and 27, third paragraph, of the Constitution - insofar as it did not provide for a reduction in the penalty (to an extent not exceeding one-third) when, due to the nature, type, means, methods or circumstances of the action, or due to the particular tenuousness of the damage or danger, the fact appeared to be of minor importance; and this on the basis of the consideration that "the lack of provision of a "safety valve" that allows the judge to modulate the penalty, in order to adapt it to the concrete gravity of the extortionate fact, can lead to the imposition of a disproportionate penalty whenever the same fact is totally free from the profiles of social alarm that have induced the legislator to establish a minimum penalty of considerable harshness for this crime". Referring also to Judgment No. 68 of 2012 - which declared the unconstitutionality of Article 630 of the Penal Code, insofar as it did not provide for a reduction in the penalty for a minor offense - it was also pointed out that the provision was "capable of including in its field of application "episodes that are markedly dissimilar, in criminological terms and in terms of disvalue, compared to those aimed at by the legislator of the emergency"".

Similar considerations underlie Judgment No. 244 of 2022, by which the unconstitutionality was declared, with reference to Articles 3 and 27 of the Constitution, of Article 167, first paragraph, of the peacetime military penal code (which punishes so-called military sabotage), insofar as it did not provide that the penalty could be reduced if the fact of temporarily rendering unusable, in whole or in part, ships, aircraft, convoys, roads, plants, warehouses or other military works or works used for the service of the Armed Forces of the State could be considered in concrete terms, due to the particular tenuousness of the damage caused, of minor importance. Beyond the arguments related to the specificity of the crime, also in this case this Court highlighted both the "particularly broad semantic texture of the expressions used by the legislator" - suitable to include even minor offenses (in relation in particular to the modest prejudice caused to the operational efficiency of the res subject to the conduct) - and the exceptional harshness of the minimum penalty. It therefore concluded that the challenged provision could lead to a penal treatment "manifestly disproportionate to the objective and subjective gravity of the fact, and in any case unable to adapt to its concrete disvalue, prejudicing the very principle of individualization of the penalty and its necessary rehabilitative function".

4. - In the light of the jurisdictional coordinates reported above, the questions of constitutional legitimacy - as mentioned - prove to be well-founded with reference to all the parameters invoked.

5. - The first paragraph, number 1), of Article 600-ter of the Penal Code punishes, with imprisonment from six to twelve years and a fine from €24,000 to €240,000, anyone who, using minors under the age of eighteen, produces pornographic material. The same penalty is imposed, under the same Article 600-ter of the Penal Code, for other conduct, such as the creation of pornographic performances or shows by using minors under the age of eighteen (first paragraph, number 1) or the recruitment or inducement of minors under the age of eighteen to participate in pornographic performances or shows or the profiting from the aforementioned shows (first paragraph, number 2), or, again, the trade in child pornography material referred to in the first paragraph (second paragraph). Conversely, conduct that may have a disvalue no less than the mere production of child pornography material is sanctioned with lesser penalties, especially if the material produced is kept within the private sphere of the person who produces it. Consider the distribution, dissemination, diffusion and advertising of the aforementioned child pornography material, or even the distribution and dissemination of news or information aimed at grooming or the sexual exploitation of minors (third paragraph), conduct punishable by imprisonment from one to five years and a fine from €2,582 to €51,645.

But it is within the same crime of producing child pornography material that very heterogeneous conduct and methods of executing the crime can be included.

Consequently, in this context, the lack of a "safety valve" that allows the judge to modulate the penalty, in order to adapt it to the concrete gravity of the individual conduct, can lead to the imposition of a disproportionate penalty, since the normative wording of the challenged Article 600-ter, first paragraph, number 1), of the Penal Code, in its breadth, is capable of including, in its field of application, markedly dissimilar conduct, in criminological terms and in terms of disvalue, some of which are also extraneous to the ratio underlying the strict legislation on child pornography; a situation made more delicate, in terms of constitutional legitimacy, by a penal framework of the crime characterized - precisely in the just consideration of the disvalue of this type of crime and the dangers associated with it - by a minimum of significant harshness.

6. - Indeed, the definition of the crime of producing child pornography material under Article 600-ter, first paragraph, number 1), of the Penal Code is particularly broad.

The provision is characterized by considerable descriptive latitude ("using minors [...] produces pornographic material"), capable of involving a wide range of conduct with differing disvalue, that is, capable of compromising the protected legal asset in profoundly different ways.

The rule, moreover, indiscriminately punishes conduct related to the use of minors under the age of eighteen, without making any gradation (as, instead, is done by Article 609-quater of the Penal Code) based on a series of elements capable of influencing the disvalue of the conduct and the prejudice to the protected legal asset, such as, for example, the age of the victim, the relationship between the latter and the perpetrator or the age difference between the two, or, again, the content of the images produced; it being irrelevant, for the crime in question to be constituted, that the production of the material is intended for subsequent distribution, dissemination or diffusion: conduct, these, sanctioned as autonomous crimes by the third paragraph, however (as already mentioned) with a lesser penal framework.

6.1. - To understand its current wording, it must be considered that the challenged provision has been the subject of significant normative and jurisprudential evolution, aimed at strengthening the prevention and repression of a particularly serious crime, both with regard to the psycho-emotional sphere and therefore to the development of the minor's personality, and to the danger that the crime in question, like other conduct sanctioned in the same incriminating provision, may favor a criminal system that relies on the use of minors for illicit purposes of a lato sensu sexual order.

In particular, Law No. 38 of February 6, 2006 (Provisions concerning the fight against the sexual exploitation of children and child pornography, also via the Internet), in amending Article 600-ter of the Penal Code, eliminated, for the configuration of the crime, the reference to the "exploitation" of the minor, replacing it with the notion of "use", as well as the purpose "of creating pornographic performances or producing pornographic material".

As clarified by the Court of Cassation, this modification has meant, on the one hand, that for the commission of the crimes it is sufficient to use minors for the production of performances or pornographic material, regardless of any lucrative or commercial purpose, on the other hand, that for the identification of the subjective element reference must be made to generic intent (requiring, however, awareness that the subjects used are minors) and no longer to the specific intent required in the past (Court of Cassation, united penal sections, May 31 - November 15, 2018, no. 51815).

Furthermore, with Law No. 172 of October 1, 2012 (Ratification and execution of the Council of Europe Convention for the protection of children against sexual exploitation and sexual abuse, made in Lanzarote on October 25, 2007, and provisions for the adaptation of domestic law), the notion of child pornography was introduced, meaning "any representation, by any means, of a minor under the age of eighteen involved in explicit sexual activities, real or simulated, or any representation of the sexual organs of a minor under the age of eighteen for sexual purposes".

In the face of such a "deliberately very broad" wording, it has consequently been considered that, for the qualification of the representative material as child pornography, it is sufficient that "“any representation”, made "“by any means”, and above all objective, from which derives the legal definition of child pornography material, meaning any representation of the minor that depicts his nudity for sexual purposes or that depicts his involvement in sexual acts" (Court of Cassation, fifth penal section, judgment June 8-July 19, 2018, no. 33862) and that the ascertainment of the crime is independent of any quantitative threshold, falling within the concept of "material" any child pornography representation of a minor, even if it consists only of a few photos or even just one image (Cass., united sections, no. 51815 of 2018; Court of Cassation, third penal section, judgment May 11-October 13, 2023, no. 41572).

Finally, the Court of Cassation - in the light of the normative changes that have taken place over time and the changes in the technological context and the development of the web - has changed its approach on the very nature of the crime under Article 600-ter of the Penal Code. Unlike what was argued in the past, the same Court has, in fact, ruled out the need to ascertain the concrete danger of the diffusion of the material produced in the perverse circuit of pedophilia, since - the diffusive potential of any production of images or videos being inherent in new technological tools, making the presumption of the concrete danger of diffusion of the material created anachronistic - it has considered that production implies in re ipsa the danger of diffusion (Cass., united sections, no. 51815 of 2018; lastly, Cass., no. 41572 of 2023).

6.2. - If, therefore, the challenged provision has been the subject of normative and jurisprudential evolution that has, in part, broadened its scope of application, for the justified purposes of prevention and repression of this crime and similar crimes, at the same time it must be considered that it is precisely this broadening that highlights, in terms of constitutional legitimacy, the need for a "safety valve" which, while maintaining the high minimum penalty that the legislator in its discretion has wanted to establish, allows the ordinary judge, through the provision of a special mitigating circumstance, to grade and "personalize" the penalty to be imposed in concrete terms with reference to cases of lesser gravity, in order to ensure the proportionality of the penalty in conjunction with the individualization of the penalty and its rehabilitative purpose.

This Court, on the other hand, has already on previous occasions taken into account the normative evolution of the provisions examined in order to affirm the need to ensure a "safety valve" (for example, with reference to Article 609-bis of the Penal Code, whose normative evolution has been taken into consideration in Judgments No. 106 of 2014 and No. 325 of 2005, to guarantee the proportionality of the penalty after the concentration in a single crime of conduct with a markedly different damaging impact on the same legal asset; but also with reference to Articles 629 and 630 of the Penal Code, respectively examined by the aforementioned Judgments No. 120 of 2023 and No. 68 of 2012).

7. - The identified profiles of conflict with the constitutional principles of Articles 3 and 27 of the Constitution, as a result of the lack of provision of the reduction, are even more evident considering the harshness of the minimum penalty, equal to six years; harshness already observed by this Court for the minimum penalty of five years' imprisonment for the crime of extortion as well as for the minimum penalty of eight years' imprisonment established by Article 167, first paragraph, of the military penal code (respectively in the aforementioned Judgments No. 120 of 2023 and No. 244 of 2022).

Nor can it be relevant, in order to exclude the vulnus to the constitutional principles invoked, that the penalty for the crime in question could still be mitigated through the application of common mitigating circumstances, since, as already clarified by the consistent jurisprudence of this Court (Judgments No. 46 of 2024, No. 120 of 2023 and No. 63 of 2022), such mitigating circumstances have the function of adjusting the concrete measure of the penalty by virtue of a series of elements, also of a subjective order, and not also that of correcting the lack of proportionality of the penalty as it derives from a particularly significant minimum penalty and the lack of provision of a reduction, which, moreover, the legislator contemplates for similar criminal offenses.

8. - Moreover, the specific case examined by the a quo judge is emblematic of the unreasonable consequences that can derive from the absence of a "safety valve" that allows the judge to sanction in a proportionate manner conduct which - according to what was noted by the referring judge - could be attributable, despite its undeniable disvalue, to a hypothesis of lesser gravity, in the light of a plurality of elements, identified by the a quo judge - in the assessment of his exclusive competence - in the limited age difference between the defendant and the victims, in the subject of the child pornography images exchanged and in the absence of particular techniques of pressure, psychological manipulation or emotional seduction.

9. - All that has been stated so far ultimately leads to considering that the violation of the principle of proportionality of the penalty deriving from Articles 3 and 27, third paragraph, of the Constitution, exists, also prejudicing the principle of individualization of the same, in the light of the "personal" nature of criminal responsibility (Article 27, first paragraph, of the Constitution).

10. - For the identification of the reduction, this Court considers it reasonable to refer - as also requested by the a quo judge - to the criminal offense under Article 609-quater of the Penal Code, which presents significant common features with the one now under examination, also aiming to protect the free and harmonious development of the minor's personality in the sexual sphere. This criminal offense provides for the same penal framework as Article 600-ter of the Penal Code, but at the same time provides that, in cases of lesser gravity, the penalty is reduced by no more than two-thirds. This penal solution, already existing in the legal system, constitutes a constitutionally adequate solution (ex multis, Judgments No. 6 of 2024, No. 95 and No. 28 of 2022 and No. 63 of 2021), capable of remedying the vulnus found. This obviously does not exclude - according to the principles - a general reconsideration by the legislator of the subject matter under examination, from the systematic point of view of criminal offenses, incriminating rules and penal treatments; a systematic reconsideration that will obviously have to take into account the constitutional canons of proportionality and individualization of the penalty.

It should finally be emphasized that the invoked reduction can find reasonable justification only in the hypotheses of disvalue significantly lower than that normally associated with the commission of a fact conforming to the abstract figure of the crime, as it is conduct that still affects the balanced development and psychophysical well-being of the minor, as well as his sexual freedom and his dignity.

For its application, therefore, a prudent overall assessment of the fact is required by the judge of the specific case - in which the methods of execution and the subject of the child pornography images, the degree of coercion exerted on the victim (also with reference to the lack of particular techniques of pressure and psychological manipulation or emotional seduction), as well as the physical and psychological conditions of the latter, also in relation to age (and the limited difference with the age of the offender) and the damage, also psychological, caused to her - also applying the criteria adopted by the jurisprudence of legitimacy with reference to the mitigating circumstance of lesser gravity of the crime of sexual acts with a minor (recently, Court of Cassation, third penal section, judgments May 10 - October 24, 2023, no. 43225 and November 24, 2022 - March 1, 2023, no. 8735).

In this assessment, particular importance will finally be given to the extraneousness of the incriminated conduct with respect to those aspects of particular social alarm - that is, the attribution of the fact, or even its mere contiguity, to the circuit of the dissemination of child pornography images or videos and, to a greater extent, to the related market - which have induced the legislator to establish a minimum penalty of considerable harshness for this crime and, more generally, to punish any conduct capable of feeding the supply of child pornography intended for the related market, a market that is at the origin of the sexual exploitation of minors.

11. - In the light of what has been said so far, the unconstitutionality of Article 600-ter, first paragraph, number 1), of the Penal Code must be declared, for violation of Articles 3 and 27, first and third paragraphs, of the Constitution, insofar as it does not provide, for the crime of producing pornographic material by using minors under the age of eighteen, that in cases of lesser gravity the penalty imposed by it is reduced by no more than two-thirds.

For These Reasons

THE CONSTITUTIONAL COURT

declares the unconstitutionality of Article 600-ter, first paragraph, number 1), of the Penal Code, insofar as it does not provide, for the crime of producing pornographic material by using minors under the age of eighteen, that in cases of lesser gravity the penalty imposed by it is reduced by no more than two-thirds.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on April 16, 2024.

Signed:

Augusto Antonio BARBERA, President

Filippo PATRONI GRIFFI, Reporting Judge

Roberto MILANA, Registrar

Filed with the Registry on May 20, 2024