CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 mars 2025

.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 14 April 2025   FIRST SECTION Application no.   17277/24 Armando CHIOSI against Italy lodged on 13   June 2024 communicated on 27   March 2025 SUBJECT MATTER OF THE CASE The application concerns the impartiality of the domestic courts and the foreseeability of the applicant’s conviction for the offence of “production of child pornography” provided for by Article   600   ter   of the Criminal Code (“the CC”). In January 2015, F.G., judge at the Criminal Division of the Rome District Court, acting as parent exercising parental responsibility over her son, filed a complaint against the applicant for child pornography, accusing him of having induced minors to self-produce and send him pornographic material between 2013 and 2015. At the pre-trial stage, the applicant requested the Judge for the Preliminary Investigation (“the GIP”) that the proceedings be transferred before the judicial authorities of a different district under Article   11 of the Code of Criminal Procedure (“the CCP”) in order to guarantee the impartiality of the adjudicating judges. That provision provides for a derogation to the territorial jurisdiction of a court when a magistrate is involved in the criminal proceedings as, inter alia , injured person ( persona offesa ) or person who sustained damage as a result of the offence ( persona danneggiata ). The GIP dismissed the request on the grounds that only F.G.’s son held the position of injured party and F.G. had not yet formally joined the proceedings as a civil party. The applicant’s appeal against the GIP’s decision was ultimately dismissed by the Court of Cassation with judgment no.   6558/24 of 14   February 2024. The court stated that the contested provision concerned only cases in which the offence affected the magistrate as an injured or damaged person directly and not by reflection, as in the case at issue. As regards the charge under Article 600   ter   of the CC, throughout the proceedings the applicant argued that he could not be found guilty, since the constitutive elements of the offence, and notably the concrete risk of diffusion of the pornographic content, had not been made out. The interpretation of the above constitutive element had evolved in the domestic case-law. In particular, the Combined Divisions of the Court of Cassation had found that the offence no longer required the concrete risk of diffusion of the pornographic material (judgment no.   51815 of 2018). Relying on the principle established in that judgment, the Rome District Court convicted the applicant. Upon appeal, the Rome Court of Appeal, to where F.G. had in the meantime been transferred, upheld the conviction, as did the Court of Cassation. The applicant complains under Article   6 of the Convention that the adjudicating panels of the Rome District Court and the Rome Court of Appeal, where F.G. held an office at the relevant time, lacked the necessary impartiality to adjudicate the case. The applicant further alleges a violation of Article   7 of the Convention, complaining that his conviction was based on a new interpretation of the relevant domestic provision resulting from the Court of Cassation’s departure from previous case-law, which caused him prejudice. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair trial in the determination of the criminal charge against him, in accordance with Article   6 §   1 of the Convention? In particular, were the applicant’s doubts as to the impartiality of the adjudicating panels of the Rome District Court and the Rome Court of Appeal objectively justified (see, mutatis mutandis , Mitrov v.   the former Yugoslav Republic of Macedonia , no.   45959/09, §   55, 2   June 2016; Kyprianou v.   Cyprus [GC], no.   73797/01, §   118, ECHR   2005-XIII)?   2.     In light of the domestic courts’ well-established case-law at the material time (see, inter alia , judgment of the Combined Divisions of the Court of Cassation no.   13 of 31   May 2000, and judgments of the Court of Cassation no.   17178 of 11   March 2010, no.   16340 of 12   March 2015, no.   35295 of 12   April 2016) and the grounds on which the applicant was convicted of the offence of “production of child pornography” under Article 600   ter of the Criminal Code, was that conviction in compliance with Article   7 of the Convention? In particular, was the interpretation of Article 600   ter of the Criminal Code adopted by the Court of Cassation in 2018 and applied by the domestic courts in the applicant’s case reasonably foreseeable for the applicant at the material time (see the subject matter of the case in R.B. v.   Italy , application no.   20409/23, communicated to the Government on 27   November 2023, for a summary of the domestic case-law developments at issue. See for general principles 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)?