Commentary on Judgment No. 16343 of 2023: Precautionary Measures and Inference of Acts

The judgment no. 16343 of March 29, 2023, issued by the Court of Cassation, provides an important reflection on the inference of acts within the scope of personal precautionary measures. In particular, the Court examined the issue of the need for processing data transmitted via the 'encrochat' system, highlighting how such communications can influence the adoption of precautionary measures.

The Inference of Acts in Precautionary Measures

The concept of inference of acts is crucial in criminal law, as it determines the possibility of using certain information as evidence to justify precautionary measures. According to the Court, for a precautionary measure to be adopted, it is necessary for the judicial authority to infer, and not just know, the procedural significance of the circumstantial elements. This implies that the data must already demonstrate a clear suitability to support a request for precautionary measures.

• The necessity of a demonstrative scope that is already evident.
• The absence of a request for further investigations to validate the evidentiary elements.
• The separation of related crime reports should not be necessary.

The Encrochat Communications and Data Acquisition

A central aspect of the judgment concerns communications from the 'encrochat' system. The Court ruled that the complexity in acquiring such data, through European investigation orders, may affect the ability to infer procedural significance. This leads to a reflection on the balance between the need to ensure security and the rights of the accused, highlighting how jurisprudence often has to manage intricate situations.

Inference of acts - Notion - Contents of the so-called "encrochat" communications - Necessity of data processing - Existence - Conditions - Case concerning the acquisition of data transmitted via the "encrochat" system. Regarding the retroactive effect of precautionary custody terms and the notion of "prior inference," from acts related to the first precautionary order, of the circumstantial sources underlying the subsequent precautionary order, it requires that, at the moment of referral to trial in the first proceeding, the judicial authority is able to infer, and not just know, the specific procedural significance, understood as suitability to support a request for precautionary measures, of the elements related to the crime on which the adoption of the subsequent precautionary measure for a related crime is based, whose circumstantial compendium must already demonstrate its demonstrative scope and not require further investigations or processing of the acquired evidentiary elements, which necessitate the separation or distinct registration of related crime reports. (In this case, the Court deemed immune from criticism the order of the review tribunal that excluded, in relation to the crime referred to in art. 74 of the Presidential Decree of October 9, 1990, no. 309, the existence of the "chain contestation" hypothesis, due to the complexity of the subsequent acquisition activity, by means of a European investigation order, of communications via the "encrochat" system, in response to the report indicating the existence of the association).

Conclusions

Judgment no. 16343 of 2023 represents an important step in defining the limits and possibilities of using digital communications in the context of precautionary measures. The Court emphasized the need for in-depth analysis and clear inference of acts, raising a crucial question regarding the complexity of modern investigations and their ability to support precautionary measures. This approach not only protects the rights of the accused but also contributes to a better administration of justice.