09 Nov wiretaps

According to what is established by the combined provisions of the new articles. 268 comma 4, 269 C.p.p. e 89-to disp. to. C.p.p., reports and wiretaps, together with the decrees they have issued, authorized, validated or extended the same, are stored in the recently introduced digital archive kept under the direction and supervision of the Public Prosecutor.
Precisely following the deposit of the aforementioned documents in the digital archive, the code of criminal procedure places on the public prosecutor the obligation to discovery of the results of the interceptions; are in particular the articles 268, 415-to, 454 e 293 C.p.p. to regulate the different and alternative mechanisms that allow defenders to examine what is deposited in the archive referred to in the article 89-to disp. to. C.p.p. The article 268 comma 6 C.p.p. first period, as amended by the Legislative Decree. n. 161/2019, regulates one of the possible mechanisms of discovery of the documents, where it provides that, except for serious prejudice to the investigations, following filing, the parties' lawyers must be notified of their right to examine the documents and listen to the recordings, or to take cognizance of the flows of computer or telematic communications within the deadline set by the public prosecutor. Compared to what was established before the reform, the provision in question presents a single novel aspect, essentially linked to the need to adapt the code's provisions to the technological advancement of the times; as one would logically expect, consistently with the establishment of the archive digital, the faculties given to the lawyers of the parties will have to be exercised "electronically" While on the one hand the amendment implemented during the conversion of the Legislative Decree is certainly appreciable. n. 161/2019 aimed at expanding the subjects entitled to the notice, originally identified only as "defenders of the accused", on the other hand, one cannot help but be sadly aware of the failure to provide the defenders with the right to extract copies of the documents examined, also confirmed by the Conversion Law n. 7/2020. In the opinion of the writer, such an impairment of the right of defense does not appear to be acceptable in any way. Not even a possible one ratio based on the protection of privacy of the subjects involved in the interception operations would justify the legislator's choice of 2019 not to fill the a wound regulations already present in the code of 1988, what is the failure to provide the defenders with the right to obtain a copy of the files viewed (more precisely: listen to yourself); the fear that the latter could illicitly disseminate the copies containing confidential information of the intercepted subjects would be highly prejudicial to the defenders, without considering the fact that this concern could be contained, if not even elisa, by alternative mechanisms to those that compress the right of defence. In this regard, for example, the recently introduced paragraph helps you 2-to art. 114 C.p.p. that, prohibiting publication, even partial, of unacquired interceptions, prevents the dissemination through the press of confidential information stored in the digital archive referred to in the art. 269 C.p.p.. Especially in consideration of the defenders' right to indicate further recordings deemed relevant in the so-called. Hearing Excerpt which will be discussed later, in our opinion it appears highly detrimental to the right of defense to limit the right to copy the documents examined only when they have been transcribed (ex art. 268 comma 8 C.p.p.), or acquired (ex art. 89-to comma 4 disp. to. C.p.p.); for the reasons stated above, all that remains is to hope for a constitutionally oriented reading of the law, if not even a reform that expressly provides for this faculty. The second provision which deals with regulating the defense's first contact with the wiretapping documents is contained in the recently introduced paragraph 2-to art. 415-to C.p.p.; according to this new paragraph in fact, if no action has been taken pursuant to art. 268 paragraphs 4, 5 e 6, the notice of conclusion of investigations for crimes registered starting from 1 September 2020 must contain the warning that the suspect and his lawyer have the right to electronically examine the documents deposited in the wiretap archive and extract copies of the recordings or flows indicated as relevant by the public prosecutor. Within 20 days from notification of the notice referred to in the art. 415-to c.p.p., the defender can also deposit the list of further recordings deemed relevant to the prosecutor's office e, should the Public Prosecutor reject this request5, the defender is entitled to request the Judge to proceed in the ways referred to in the art. 268 comma 6 c.p.p. As was highlighted by the CSM Opinion on the Legislative Decree. n. 161/2019, many doubts arise in relation to the narrowness of the terms established by the Legislator; especially where the material from the interceptions is substantial, the term of appears negligible 20 days within which the defender is obliged to examine the documents and possibly then produce the list of further interceptions. Finally, we wonder what the solution is in the event that the Public Prosecutor fails to formally deposit the interception documents in the archive following the notice referred to in art.. 415-to; the Office of the Magistrate of the Supreme Court with Report no. 35/20206, in order to answer this question, has enunciated the two main and antithetical orientations regarding the untimely filing of evidence. According to a first thesis dating back further in time7, the failure to timely deposit an element of evidence would not lead to the nullity of the indictment and of the consequent decree ordering the trial, as much as the unusability of the single act, except in cases of acquisition of the document at a time following the notice of conclusion of the preliminary investigations and before the indictment, or an integrative investigation ex art. 419, comma 2 C.p.p., and supplementary ex art. 430 C.p.p.; This orientation is contrasted with a more recent one8, according to which the failure to deposit the investigative documents at the same time as the notification of the notice referred to in the art. 415-to C.p.p. determines a general nullity in the intermediate regime due to violation of the defensive prerogatives (ex art. 178, became. c) C.p.p.). The assumption on which the second thesis is based is the fact that in this hypothesis none of the causes of unusability referred to in art.. 271 C.p.p., the wiretapping operations having been legitimately carried out, but rather we are witnessing a violation of the procedure due to the failure to select and acquire them in the trial file, objectionable at the request of a party. The legislator of 2019 he also took care to regulate the discovery of interception acts even in the case of immediate judgment; to the article 454 C.p.p. the paragraph was in fact introduced 2-to which provides for the obligation of the public prosecutor to file the list of interceptions of communications or conversations of the flows together with the request for immediate judgment in the event that he has not proceeded pursuant to art.. 268 paragraphs 4, 5 e 6 C.p.p. . The new paragraph entrusts the defender with the same faculties guaranteed by the art. 415-to comma 2-to; the defense can therefore file with the Public Prosecutor the list of further interceptions deemed relevant and of which a copy is requested, and also present, in case of rejection or objections by the prosecution body, request to the Judge to proceed in the manner referred to in the article 268 comma 6 C.p.p.. It is worth noting the addition to the paragraph 2-to, implemented during the conversion of the Legislative Decree. n. 161/2019, of the fourth period which legitimizes the defender to request an extension of 10 days, in addition to 15 canons, within which the aforementioned faculties can be exercised. In a nutshell then, in case of immediate judgment, the final deadline within which the defense can file the list of further interceptions deemed relevant, or request the procedures referred to in the article 268, comma 6 C.p.p., is of 25 days from the notification referred to in the article 456, comma 4 C.p.p.; in the opinion of the writer, The choice made by the legislator when converting the Legislative Decree is incomprehensible. L. n. 161/2019 not to provide the defender with the right to request an extension even in the case referred to in the art. 415-to comma 2-to C.p.p., thus leaving the term unchanged 20 days, paradoxically more compressed than that expected in the case of immediate judgment. Regarding the application of a precautionary measure, There are mainly two new aspects relating to the interceptions, and concern respectively the application procedure of the measure, and the rights of the defender following notification of the order applying the precautionary measure. In particular, during the conversion of the Legislative Decree. n. 161/2019, the legislator has established the obligation for the Public Prosecutor to indicate to the Judge the reports referred to in the article 268 comma 2 C.p.p. on which the request for the application of a precautionary measure is based, «limited to relevant communications or conversations and in any case conferred in the archive referred to in the art. 269 »9. The passages attached in the request from the prosecution to the Judge must therefore be relevant, as expressly required by the law, and must be deposited in the digital archive. From the regulatory dictate, it is deduced that the public prosecution can also attach only the so-called. listening sketches, as there is no obligation to present recordings of intercepted communications. As a corollary to the request of the public prosecutor and in line with the Ruling of the Constitutional Court 10 October 2008, n. 336, the new article 293, comma 3 C.p.p. provides for the defender's right to "examine and extract copies of the reports of intercepted communications and conversations" placed by the prosecution as the basis for the request for application of the measure, as well as to obtain the transposition of the recordings onto a suitable medium. As hoped, the law 28 February 2020, n.7, has modified the provision originally envisaged by the Draft Legislative Decree. n. 161/2019 aimed at eliminating the rights for the defender to examine and copy the reports introduced by the Legislative Decree. Lgs. n. 216/2017, and thus fully restored the right of defense, particularly relevant and incisive in the delicate precautionary moment. In fact, it is worth remembering that in the event of the application of a precautionary measure, the right to direct listening and to copy interceptions are incompressible prerogatives, the violation of which gives rise to a hypothesis of nullity under intermediate regime. The second part of the art. 268 comma 6 C.p.p. provides that, once the deadline set by the public prosecutor has expired within which the defendant's lawyers can examine the documents electronically and listen to the recordings, the Judge « orders the acquisition of the conversations or flows of computer or telematic communications indicated by the parties, that do not appear irrelevant, also proceeding ex officio with the removal of the recordings and reports whose use is prohibited and those which concern particular categories of personal data, unless its relevance is demonstrated ». He D.L.. 161/2019 it almost resumes in toto the regulations envisaged before the reform, thus denying the choice made by the legislator of 2017 to make the dismissal hearing only possible: he D. Lgs. n. 216/2017 in fact it mainly provided that the G.I.P. acquired by order the not manifestly irrelevant interceptions indicated by the parties following a chamber hearing which was not attended. With the news of 2019 instead, the “parties” have the right to at least be notified 24 hours before the hearing so that you can participate, and have the burden of presenting to the judge the conversations and/or flows of computer or electronic communications to be acquired at the hearing. In the event that the adjournment hearing occurs during the preliminary investigations, the only parties who have the right to participate are the public prosecution and the suspect, since the person offended by the crime is not a procedural party in the strict sense; if instead, if the adjournment hearing were to take place at a time following the preliminary hearing and the offended person became a civil party, it must be considered that it also has the right to participate. Compared to what was expected before the reform, the main innovations of the so-called. Hearing Excerpts are two: first of all, the legislator has affected the sphere of the registrations subject to acquisition which, for criminal proceedings registered by 1 September 2020 forward, they must be "not irrelevant", as non is no longer foreseen manifests irrelevance; secondly, the new paragraph 6 dell’art. 268 c.p.p. expands the judge's powers by allowing him to proceed ex officio with the removal not only of unusable conversations11, but also those concerning "particular categories of personal data", unless its relevance is demonstrated. Although the legislator does not provide a definition of "personal data", this can be obtained indirectly from the art. 268 comma 2 C.p.p., provision that requires the prosecution not to transcribe conversations harmful to a person's reputation and those relating to personal data defined as sensitive by law. In the latter case, it is up to the person who intends to acquire the interception concerning the data personal demonstrate to the judge not already the non-irrelevance, but rather the relevance for the purposes of the procedure through the attachment of specific and suitable elements to demonstrate the necessity of the communication in question to the subject to be proved. As previously stated, the excerpt hearing will proceed even in the cases in which the defender asks to proceed in the ways referred to in art.. 268 comma 6 c.p.p. following the refusal of the public prosecutor to acquire further recordings deemed relevant in the cases referred to in the art. 415-to comma 2-to or 454 comma 2-to c.p.p. In mind of what was foreseen before the reform, once the excerpt hearing is concluded, the judge orders the transcription or printing in intelligible form of the admitted wiretaps, «observing the shapes, the methods and guarantees provided for carrying out the appraisals » (art. 268 comma 7 c.p.p.), and said transcripts or printouts are included in the hearing file referred to in the art. 431 c.p.p. . He D.L.. n. 161/2019, from a procedural economy perspective, then specifies that the transcript assessment can be ordered by the judge «also during the activities of preparing the file for the hearing pursuant to art.. 431 », thus legitimizing the G.U.P. to appoint the expert also following the preliminary hearing, in order to anticipate the appraisal and limit the procedural delays due to the completion of this. One of the most relevant aspects of neo-discipline is enclosed in the third period, art. 268, comma 7 C.p.p., introduced during the conversion through Law no. 7/2020; in particular, the provision provides that, in the case of consent of the parties, the judge can also use the so-called. “listening tricks”, without proceeding with the transcription carried out through the expert opinion. This amendment expressly incorporates the now consolidated orientation in jurisprudence13 according to which also the so-called. Listening plans can be used in ordinary judgment for decision-making purposes, if there is the consent of the parties to the acquisition of these in the trial file14. In case of conflict, then specifies the norm, instead, one must proceed in the manner referred to in the article 268 comma 7 first period C.p.p., therefore through the expertise of wiretaps. In order to better determine the changes implemented by the wiretapping reform with reference to the art. 270 C.p.p., it is useful to divide the discussion of the changes that have occurred on "traditional" interceptions on one side, and those relating to interceptions carried out with the so-called. trojan horse on the other. The starting point, as well as a point in common, of the two analyzes is to be found in the multiple rulings made by the Constitutional Court concerning the constitutionally guaranteed right ex art. 15 Cost. Called to express itself precisely in relation to the question of constitutionality of the art. 270 C.p.p., the Consulta in Sentence n. 336/1991 he outlined the essential characteristics of the right to freedom and secrecy, marking its inviolability from a dual perspective; as stated in the aforementioned Sentence, the value expressed in the art. 15 Cost. it cannot be the subject of constitutional revision nor of limitation or restriction by any of the powers "except due to the mandatory satisfaction of a constitutionally relevant primary public interest". The inviolable right to free and secret communication is strictly connected to the "essential core of personality values" placed at the foundation of the guarantee for man to exist and develop according to the postulates of human dignity. For the reasons expressed above, the Constitutional Court goes so far as to state that only the "punctually motivated" authorization act of the judicial authority can legitimize a means of seeking evidence that is so highly invasive of the privacy of a subject, what is the instrument of wiretapping. The motivation of the act authorizing the interceptions effectively binds the operations both as regards the subjects subjected to such control, than to the facts constituting the crime for which they were ordered, thus eliminating the threat of "blank authorizations" detrimental to the protected property ex art. 15 Cost. . These are the main reasons expressed by the Consulta for declaring the question of the constitutional illegitimacy of the article unfounded 270 C.p.p., as an implementing and non-injurious provision of the constitutional principles relating to the art. 15 Cost.. The changes relating to this provision will be analyzed below, implemented by the reform on the interception of communications or conversations.