Published on 18 December 2023
FIRST SECTION
Application no. 14566/21
Antonio PACILETTI
against Italy
lodged on 8 March 2021
communicated on 27 November 2023
SUBJECT MATTER OF THE CASE
The applicant, a member of the police force, was convicted under Article 615 ter of the Italian Criminal Code of accessing a computer system while legitimately in possession of credentials, but in breach of the system’s regulations and for purely personal reasons.
Before the domestic courts, he complained that, starting from 2000 – and ongoing – a conflict in case-law had developed within the Court of Cassation (see judgment Casani of the plenary Court of Cassation, no. 4694 of 7 February 2012, acknowledging the conflict, with further references). In particular, according to the first approach, only the conduct of a person who accessed a computer system without possessing legitimate credentials could entail liability for the offence, whereas, according to the second approach, the offence under Article 615 ter would also be committed by a person who, legitimately in possession of credentials, accessed the system either in breach of the system’s regulations, or for purposes other than those for which he had been granted the right of access.
The applicant further argued that, as a result of such inconsistency, it was neither clear nor foreseeable whether the acts he had been charged with entailed liability for the offence under Article 615 ter.
By judgment no. 25944 of 11 September 2020, the Court of Cassation dismissed the applicant’s appeal against his conviction and held that no violation of Article 7 of the Convention had occurred on account of the inconsistency in its case-law at the time of the facts. In particular, the Court of Cassation affirmed that “in the event of a conflict in the case-law which is subsequently resolved by the plenary Court of Cassation, an interpretation [...] which is based on one of the two or more contrasting approaches analysed by the plenary cannot be considered as unforeseeable”.
The applicant complains under Article 7 of the Convention of the lack of foreseeability of his conviction, on account of the inconsistency of case-law at the time of commission of the acts.
QUESTIONS TO THE PARTIES
1. Did the acts of which the applicant was convicted constitute the criminal offence of unauthorised access to a computer system under Article 615 ter of the Italian Criminal Code at the time when they were committed, as required by Article 7 of the Convention (see Žaja v. Croatia, no. 37462/09, §§ 90-92, 4 October 2016; see also Contrada v. Italy (no. 3), no. 66655/13, §§ 64-76, 14 April 2015)?
2. In particular, taking into consideration the relevant case-law, did domestic law define the offence with sufficient precision so as to enable the applicant to foresee, with the degree of certainty required by Article 7 of the Convention, what acts or omissions would make him liable for the offence (see, mutatis mutandis, Žaja, cited above, § 106)?
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