Wiretaps: Commentary on Judgment No. 26297 of 2024

The recent judgment No. 26297 of May 15, 2024, issued by the Court of Cassation, offers an important reflection on the regulation of wiretaps and the crucial role of the authorization decrees that legitimize their use. This decision is set within a complex legal context, where the protection of fundamental rights, such as the right to defense, intertwines with the investigative needs of the State.

The Context of the Judgment

The Court examined a case in which the public prosecutor had not attached the authorization decrees related to the wiretaps to the request for the application of precautionary measures. Following the appeal against the coercive measure, the reviewing court had to assess the effectiveness of the wiretaps themselves. The Court determined that the failure to attach the decrees does not automatically result in the ineffectiveness of the precautionary measure, contrary to what some previous interpretations had suggested.

The Significance of the Judgment's Maxim

Failure to attach the authorization decrees by the public prosecutor - Failure to transmit them to the reviewing court - Ineffectiveness of the precautionary measure ordered - Exclusion - Unusable - Exclusion - Obligation for the reviewing court to acquire the decrees ex officio - Existing - Case. In the context of wiretaps, the public prosecutor's failure to attach the relevant authorization decrees to the request for the application of the precautionary measure and the subsequent failure to transmit them to the reviewing court, following the appeal of the coercive measure, does not result in the ineffectiveness of the measure under Article 309, paragraph 10, of the code of criminal procedure, nor the unusability of the interceptions, which instead results from the adoption of the decrees outside the cases permitted by law or in violation of the provisions of Articles 267 and 268 of the code of criminal procedure, obliging, however, the court to acquire such provisions to safeguard the right of defense of the party requesting them for the purpose of verifying their existence and legitimate adoption. (Case in which the Court annulled the order of the Reviewing Court that had failed to acquire the authorization decrees underlying the genetic provision and that rejecting the appeal, based on the erroneous consideration of the irrelevance of the defensive deduction, due to the availability, by the public prosecutor, of only the computer supports of the interceptions).

This passage highlights the obligation of the court to acquire the authorization decrees to guarantee the right of defense, even in the absence of their attachment by the public prosecutor. It is essential for the court to verify the existence and legitimacy of such decrees, as their absence does not automatically imply the unusability of the wiretaps but requires a more in-depth review.

Conclusions

In conclusion, judgment No. 26297 of 2024 represents a significant step in the protection of defendants' rights and the management of wiretaps. It clarifies that, although the absence of authorization decrees may seem a procedural violation, it does not automatically result in the ineffectiveness of precautionary measures, provided that the court can verify their legitimacy. It is an important reminder of the importance of formality and substance in criminal law, which must always ensure a balance between investigative needs and the fundamental rights of individuals.

Bianucci Law Firm