Judgment No. 16347 of 2023: Messaging on Sky ECC and the Usability of Evidence in Criminal Matters
The recent judgment No. 16347 of April 5, 2023, by the Court of Cassation offers an important reflection on the validity of evidence obtained through messaging on encrypted platforms, such as Sky ECC. In particular, the Court established that messaging acquired through a European investigation order from a foreign judicial authority does not fall under the regulation of wiretapping, making it usable pursuant to Article 234 bis of the Code of Criminal Procedure.
The Issue of Evidence Acquisition
The case in question involved group chat messaging on Sky ECC, acquired following a European investigation order. The Court clarified that such messages constitute documentary informational data stored abroad. This aspect is crucial, as it determines their usability in court, being considered valid evidence despite the absence of the typical guarantees of wiretapping.
It is important to emphasize that, according to the Court, it is irrelevant whether the messages were acquired 'ex post' or in real-time; what matters is that at the time of the request, the communication flows were not ongoing. This principle is based on the idea that the privacy of individuals must be respected, even when it comes to evidence in a criminal context.
Reference Legislation and Legal Impacts
Messaging in "Sky ECC chat" - Acquisition through European investigation order - Usability under Article 234 bis of the Code of Criminal Procedure - Regulation of wiretapping - Applicability - Exclusion - Reasons. Regarding evidence, messaging on the "Sky ECC" group chat system, acquired through a European investigation order from a foreign judicial authority that executed the decryption, constitutes documentary informational data stored abroad, usable pursuant to Article 234 bis of the Code of Criminal Procedure, and not a communicative flow, as the regulation of wiretapping under Articles 266 and 266-bis of the Code of Criminal Procedure does not apply (In the reasoning, the Court clarified that it does not matter whether the messages were acquired by the foreign judicial authority "ex post" or in real-time, since at the time of the request, the communication flows were not ongoing).
The judgment is based on specific articles of the Code of Criminal Procedure, particularly Article 234 bis, which regulates the usability of informational documents. Furthermore, the references to Articles 266 and 266-bis highlight the distinction between evidence acquired through wiretapping and that collected through different channels. This decision could have significant repercussions on how Italian and European authorities manage digital evidence.
Conclusions
Judgment No. 16347 of 2023 represents a significant step towards understanding and applying the legislation regarding digital evidence. With the increase in the use of encrypted communication tools, it is essential for the laws to adapt to these new realities. The orientation of the Court of Cassation offers insights into the necessity of balancing the right to privacy with the effectiveness of criminal justice. It will be interesting to observe how this judgment will influence future cases and the approach of authorities in gathering evidence in similar contexts.
