Top of page

Article Italy: Constitutional Court Declares Child Pornography Sentencing Provision Unconstitutional

On April 16, 2024, Italy’s Constitutional Court declared unconstitutional a provision of the Italian Criminal Code that imposed strict penalties for the crime of child pornography without allowing consideration of certain mitigating circumstances to reduce the penalties. (Decision No. 91 of April 16, 2024 (in Italian).)

Underlying Case

The Constitutional Court evaluated the constitutional legitimacy of article 600-ter, first paragraph, number 1, of the Italian Criminal Code following a request initiated by the Ordinary Court of Bologna, Second Criminal Section. (Considerations of Fact, No. 1.) The referring judge stated that it was called to adjudicate a charge of the crime of production of child pornography committed through multiple acts with the same criminal intent. (No. 1.1.)

In the underlying criminal case, the defendant, using his father’s telephone number and a pseudonym, contacted underage girls, sending them lewd photos of himself, and obtaining photos depicting the girls’ “secondary sexual organs.” (No. 1.1.) The penalties allocated to the crime are imprisonment from 6 to 12 years and a fine of 24,000 to 240,000 euros (about US$25,750 to 257,500), excluding mitigating circumstances for less serious cases. (No. 1.3., para. 1.)

The referring judge stated that under the challenged provision, the crime would include the production of child pornography material through the “use” of underage girls. However, in the referring judge’s opinion, the conduct was less serious due to several factors: (a) the relatively small age difference between the defendant (18) and the victims (13 and 14); (b) the object of the child pornography was only images of secondary sexual organs; (c) the absence of commercial or exhibitory purposes; and (d) the lack of psychological manipulation or emotional seduction, exploitation of a position of supremacy in terms of age and experience, or instigation through deceit. (No. 1.2., para. 2.)

The requesting tribunal asked the Constitutional Court whether the challenged provision was contrary to the Italian Constitution, article 3 (on equality before the law and non-discrimination) or article 27, first and third paragraphs (on the personal nature criminal liability, the prohibition on inhumane penalties, and the requirement that punishment be focused on rehabilitation). (Considerations of Law, No. 11.)

The referring judge asserted the penalty was unreasonably severe because the court was precluded from adjusting it to the circumstances of this case in light of objective elements relating to means, methods of execution, the victims’ dignity and sound sexual development, physical and psychological conditions connected to the victims’ age, occasional or repeated nature of the conduct, and consistency of the damage caused. (Considerations of Fact, No. 1.3., para. 2.)

Reasoning of the Constitutional Court

The Court observed that under its jurisprudence since at least 1993, the Court has reviewed the “intrinsic” proportionality of criminal penalties to ensure they are adequately calibrated on the specific facts. (Considerations of Law No. 3, para. 2.) The court noted a 2023 decision that declared the unconstitutionality of article 629 of the Criminal Code because it did not provide for a reduction in punishment considering the nature, type, means, methods, or circumstances of the act, thus failing to provide a “safety valve” allowing the judge to graduate the punishment with a lesser penalty. (No. 3.1, para. 1.) The Court recalled it reached a similar conclusion in a 2022 case that declared the constitutional illegitimacy of article 167, paragraph 1, of the Military Penal Code of Peace. (No. 3.1, para. 2.)

The court said that Law No. 172 of October 2012, on the ratification and implementation of the Council of Europe Convention for the Protection of Children Against Sexual Exploitation and Sexual Abuse, introduced the concept of child pornography in broad terms into the Italian legislation, by punishing “any representation, by any means, of a minor under the age of 18 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.” (No. 6.1, para. 4.)

However, over time, the court noted, the constitutional and legislative approach toward the crime of child pornography has evolved to allow for a “safety valve” that would allow courts to adjust the penalty to the actual gravity of the individual conduct, particularly considering that the definition of the crime of production of child pornography material provided in the challenged provision is especially broad. (No. 3.1, para. 1 & No. 6, para. 1.)

Holding

The court declared the constitutional illegitimacy of article 600-ter, first paragraph, number 1 of the Italian Criminal Code because it did not provide that the penalty be reduced by a maximum of two thirds in cases of lesser gravity for the crime of production of pornographic material using minors. (Considerations of Law No. 11 & Holding.)

Dante Figueroa, Law Library of Congress
June 24, 2024

Read more Global Legal Monitor articles.

About this Item

Title

  • Italy: Constitutional Court Declares Child Pornography Sentencing Provision Unconstitutional

Online Format

  • web page

Rights & Access

Publications of the Library of Congress are works of the United States Government as defined in the United States Code 17 U.S.C. §105 and therefore are not subject to copyright and are free to use and reuse.  The Library of Congress has no objection to the international use and reuse of Library U.S. Government works on loc.gov. These works are also available for worldwide use and reuse under CC0 1.0 Universal. 

More about Copyright and other Restrictions.

For guidance about compiling full citations consult Citing Primary Sources.

Credit Line: Law Library of Congress

Cite This Item

Citations are generated automatically from bibliographic data as a convenience, and may not be complete or accurate.

Chicago citation style:

Figueroa, Dante. Italy: Constitutional Court Declares Child Pornography Sentencing Provision Unconstitutional. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-06-23/italy-constitutional-court-declares-child-pornography-sentencing-provision-unconstitutional/.

APA citation style:

Figueroa, D. (2024) Italy: Constitutional Court Declares Child Pornography Sentencing Provision Unconstitutional. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-06-23/italy-constitutional-court-declares-child-pornography-sentencing-provision-unconstitutional/.

MLA citation style:

Figueroa, Dante. Italy: Constitutional Court Declares Child Pornography Sentencing Provision Unconstitutional. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-06-23/italy-constitutional-court-declares-child-pornography-sentencing-provision-unconstitutional/>.