Use of Video Recordings in Criminal Proceedings: Commentary on Judgment No. 49798 of 2023

Judgment No. 49798 of September 28, 2023, issued by the Court of Cassation, has raised important issues regarding the admissibility of video recordings as evidence in criminal proceedings. In particular, the Court examined the necessary conditions for such evidence to be considered valid and admissible in a trial.

Video Recordings of Non-Communicative Behaviors

The Court ruled that video recordings documenting "non-communicative" behaviors, meaning those showing the mere presence of people or objects without communicative interactions, can be considered atypical evidence. However, it is crucial that these recordings are made in public places or places open to the public, or in private environments not considered a domicile, as in the latter cases, specific authorization from the judicial authority is required.

• Video recordings in public places are usable without specific authorization.
• In private places other than a domicile, a reasoned order from the judicial authority is required.
• Video recordings made inside a domicile are always considered unlawful.

Video recordings of non-communicative behaviors - Admissibility - Conditions - Case Law. Video recordings of "non-communicative" behaviors, representing the mere presence of things or people and their movements, constitute atypical evidence if carried out, even on the initiative of judicial police, in public places, places open to the public, or exposed to the public, or in private environments other than a "domicile," where privacy and confidentiality must be guaranteed. In the latter case, for their admissibility, pursuant to art. 189 of the Code of Criminal Procedure, a reasoned order from the judicial authority justifying them in relation to investigative needs and the invasiveness of the act is necessary. Otherwise, they are to be classified as unlawful evidence, the acquisition and use of which is always prohibited, if carried out within places attributable to the notion of "domicile," as they infringe upon art. 14 of the Constitution. (Case in which the Court deemed usable images captured in the areas in front of the perpetrator's home).

Implications of the Judgment

This judgment represents an important guide for law enforcement agencies and legal professionals, as it clarifies the guidelines to be followed for acquiring evidence through video recordings. The Court emphasized that the protection of private life is a fundamental right enshrined in Article 14 of the Italian Constitution, which prohibits intrusion into a domicile without a justified order. This implies that video recordings made without authorization in such spaces can compromise the entire trial, rendering such evidence inadmissible.

Conclusions

Judgment No. 49798 of 2023 offers an important reflection on the methods of using video evidence in criminal contexts, underscoring the need for a balance between investigative needs and respect for fundamental rights. Legal professionals must pay attention to these indications to ensure the validity of the evidence collected and protect the rights of the individuals involved.