The Public Prosecutor, in order to acquire evidence in an Italian proceeding, may act pursuant to Article 45 of the EIO decree, for the limited purposes of requesting the transmission of documentation acquired in the course of a different proceeding pending in that country; in fact, it is always referred to the State of execution, in the manner provided for in that system, the concrete acquisition of the evidence to be transferred.
The issuance, by the Public Prosecutor, of E.O.I. aimed at obtaining the content of communications exchanged by means of cryptophones, already acquired and decrypted by the foreign judicial authority in criminal proceedings pending before it, therefore, does not have to be preceded by authorization from the Italian judge - as occurred in the case at hand - because such an authorization is not required, in the Italian legal system, for the acquisition of the content of telephone communications already acquired in other proceedings, possibly also, pursuant to Article 132 of Legislative Decree no.,196 of 2003, from operators of telephone or telematic services.
The requesting authority is precluded from scrutinizing the legitimacy of the manner in which the rogatorial act was carried out if no specific formality was indicated in the request for judicial assistance, and all the more so when the act of investigation was carried out previously, in the course of autonomous investigations undertaken by the foreign state, it being understood that such act once introduced into the Italian proceedings as a result of rogatorial relations, and therefore usable, will then be subject to all the procedural and substantive rules proper to the Italian legal system, in particular as regards the judge's evaluation of the compendium of documentary and investigative acquisitions and the possibilities for the suspect to exercise the prerogatives of protection.
The Italian judge cannot and must not know about the regularity of the acts of execution of investigative activity carried out by the foreign judicial authority, since said investigative activity is carried out according to the legislation of the foreign state; and, a fortiori, this is true where the original investigative activity was not carried out at the request of the Italian judicial authority, but was carried out, in the context of other proceedings instituted in the foreign state, at the initiative of that judicial authority whose results were transmitted, as c. d. cold, since it was acquired at a time prior to the E.O.I. request.
It cannot be said that in relation to the data acquired by the foreign authority and transmitted in Italy a violation of fundamental rights has been established, having to exclude in particular that the unavailability of the encryption keys necessary to make the acquired communications intelligible constitutes a violation of the rights of defense and the guarantee of due process.
It is a well-established principle that the unavailability of the algorithm that can be used to decrypt computer data does not result in any infringement of the right of defense, given that the interested party can avail himself of the procedure provided for in Article 268, paragraphs 6 and 7, of the Code of Criminal Procedure to verify the content of the captures, but cannot also claim direct control through the exclusive and unmediated use of the decryption program.
The inability of the defense to access the algorithm used within a communication system to encrypt the text of the same does not result in any violation of fundamental rights, having to deny, unless specific allegations to the contrary are made, the danger of data alteration since the content of each message is inseparably matched to its encryption key. And an incorrect key has no chance of decrypting it, even partially.
The acquisition and use of cryptophone messages is subject to different rules, limits and safeguards, which depend on how the foreign authority has, in turn, acquired the data stored in the server. In particular, if this was done by means of capture, conducted in real time, of an ongoing flow of communications, interception activity in separate proceedings was carried out with the consequence that Article 270 cod. proc. penale applies. If, on the other hand, transcripts of communications that had already taken place were obtained from foreign judicial authorities and stored in the memory of the media used by the dialoguers, then the relevant data would be considered documents, which can be acquired under Art. 238 cod. proc. penale.
The provision of Art. 234-bis cod. proc. penale is inapplicable in the matter of acquisition and usability of data relating to communications that have taken place through the Sky ECC encrypted system, because it is an alternative discipline and, therefore, incompatible with that relating to the E.O.I. system.
The European Investigation Order must relate to evidence that can be acquired in the issuing state and must be executed in accordance with what is provided in the executing state for the performance of a similar act of evidentiary acquisition, it being possible, moreover, to presume respect for such discipline and fundamental rights, unless concrete verification to the contrary is provided. Relevant for any act in the criminal proceedings, in the case of motivation per relationem, is that the act, even if not attached or transcribed in the measure to be motivated, is specified through identifying data and, if not known, is easily knowable by the interested party, regardless of its existence and the validity of its notification, since this is not the only way through which acts are knowable in the process.
SUPREME COURT OF CASSAZIONE
SECTION THIRD CRIMINAL JUDGMENT (ud. 09/26/2024) 03/12/2024, no. 44047
ronounced the following
JUDGMENT
on the appeal brought by A.A., born in L on (Omissis); against the order of July 14, 2023, of the Court of Reggio Calabria; having regard to the acts, the contested order and the appeal; having heard the report made by Councilor Alessandro Maria Andronio; having read the indictment of the Public Prosecutor, in the person of Deputy Attorney General Stefano Tocci, who concluded by requesting that the appeal be declared inadmissible.
Development of the trial
By order of July 14, 2023, the Court of Reggio Calabria, as judge of the review, confirmed the order issued on June 27, 2023 by the Gip of the same Court, by which the measure of pre-trial detention in prison had been applied against the appellant, since he was under investigation for the crime, aggravated by repeated recidivism, referred to in Articles 110 of the Criminal Code, 73, par. 1, and 80, par. 2, of Presidential Decree No. 309 of 1990 - charge D) - because, without the authorization referred to in Article 17 of the same decree, in conspiracy with others, he offered for sale to unidentified third parties a large quantity of drugs of the cocaine type, as well as for the crime, also aggravated by the same recidivism, pursuant to Articles 110 and 61, par. 1, no. 6), of the Criminal Code and 73;, paragraphs 1 and 6, of Presidential Decree No. 309 of 1990 - indictment head F) - for having, without the aforementioned authorization, in complicity with others, purchased, for the purpose of subsequent sale, 1 kilogram of narcotic substance of the cocaine type,,, marked with the numerical emblem (Omissis).
2. Against the judgment A.A., through defense counsel, appealed for cassation, requesting its annulment. 2.1. In a first ground of complaint, he alleges the nullity of the incidental proceeding held before the review judge, as well as that of the order rendered as a result of the same, for violation of Article 309, paragraphs 5 and 10, of the Code of Criminal Procedure, in relation to the failure to transmit the documents used to issue the contested order and their late production at the hearing.
In a long and articulated ground of censure, the appellant preliminarily retraces what happened during the chamber hearing of July 13, 2023 in the context of the pending proceeding no. 2516/2023 R.G.N.R., when, rejecting the defense's objections in terms of the tardiness of the documentary production, the Court of Reggio Calabria granted the requests, made by the Public Prosecutor, for the deposit of all the documents of the related proceeding no. 4837/2022 R.G.N.R, of the precautionary order of March 7, 2023 issued against the appellant within the framework of those proceedings, as well as the identification card of A.A. inherent to the pending proceedings After which, with reference to the first request for admission - presented during the discussion and pertaining to the filing of all the documents of the connected proceedings, with the related annexes - the appellant specifies that the Court had ordered the suspension of the hearing, granting the defense counsel time to examine said documentation. This would have been, however, a time limit - amounting to 58 minutes - incongruous in relation to the bulk of the documents, since no importance could be attached to the circumstance that the defense counsel was already familiar with their contents, having also participated in the other cross proceeding in the course of which the same documents had already been filed. Nor would the court have allowed the defense to extract copies of the late-filed documents.
Moreover, the precautionary judge, on this point, would have limited himself to claiming the abstract legitimacy of the filing of documents in the review hearing, also basing his arguments on the circumstance that the filing would have been followed by the establishment of cross-examination on the productions.
Except that, in doing so, he would have failed to confront both the fact that the filing would have taken place not during the discussion, but once it was concluded, thus preventing the effective establishment of cross-examination on the content of the documents and their relationship with the facts described in the precautionary indictment, and the necessarily limited nature that the same cross-examination, in any case, would have had. As for, on the other hand, the second request for admission - concerning the precautionary order of March 7, 2023, and submitted only after the conclusion of the discussion - the defense argues that, since it is a document already mentioned and used in the contested measure, it should have been the subject of initial transmission, rather than being produced and filed during the hearing. Finally, with regard to the third request for deposit - referring to the appellant's identification card in the pending proceedings and also made at the outcome of the discussion - in addition to the already censured violation of the principle of cross-examination due to the defense's inability to view the contents of the document, it is pointed out that the card in question, constituting an act of the present proceeding -since the competent judge had used its contents to proceed to the identification of the suspect and to issue the precautionary coercive measure- should have been transmitted to the Court of Review within the peremptory term provided by law, that is, within the next day and in any case no later than the fifth day from the receipt of the request. In the present case, therefore, the late production of procedural documents already in the availability of the Prosecutor's Office, in violation of Article 309, paragraphs 5 and 10, Code of Criminal Procedure, by preventing the defense from timely viewing them, from extracting copies, from proceeding to study them, as well as from submitting pleadings containing specific replies, would have constituted a clear infringement of the suspect's right of defense incident to personal freedom under Articles 13 and 24 of the Constitution and 6(3)(b) ECHR.
2.2. Second, we complain about the unlawful use of motivation per relationem, due to failure to file the act referred to. In the motivational apparatus of the contested measure, in fact, the review court would have made numerous references to the decisions taken in the rejection order adopted at the outcome of the different incidental proceedings, without, however, that act being present in the file. 2.3. In a third ground of appeal, the failure to comply with Articles 266, 266-bis, 267, 268, 270, 271, 234, 234-bis, 253, 254 and 254-bis, Code of Criminal Procedure, and the failure to take decisive evidence, as well as a defect in the statement of reasons, are criticized.
The complaint, formulated in relation to the assessment of circumstantial seriousness, concerns the manner in which the relevant elements were acquired, in light of the rules of domestic procedural law. After premising that all the procedural issues constituting the subject of the relevant complaints have been decided through reference to the content of another order already issued in the context of the different cross-appeal proceeding No. 4837/2022 R.G.N.R. - so that they will concern the arguments judicially put forward in the aforementioned measure, despite the fact that it has not been ritually included in the file pertaining to the present proceedings - and after specifying that the circumstantial elements existing in the present case against the present suspect result to be, in full, derived from the content of telematic messages, intercepted in French territory on the basis of authorization orders - expressly named “interception decrees” - issued by the judicial authority of that State, the appellant raises the issue of the nature of the act of investigation and, qualifying such act as interception pursuant to Art. 266 ff. cod. proc. penal, complains that the relevant decrees are null and void for lack of specific indication of the crime under investigation, since they contain the generic description of a series of crimes, alternatively indicated, whose future consummation would only be expected. And this, regardless of the failure to file the minutes and recordings, provided for by Article 270 of the Code of Criminal Procedure, which, in the case at hand, would in any case preclude, in the Italian criminal proceedings, the usability of the wiretaps carried out in the French criminal proceedings. Null and void, would be, moreover, the same incidental proceedings held before the judge of review, prejudicial to the defendant's right of defense, as a result of the failure to acquire to the file and the failure to deliver to the requesting private party the relevant telematic flows, moreover manipulated by means of proclaimed operations of elimination and homogenization of the same.
According to the appellant, the apprehension of telematic messages could not be substantiated in a means of searching for evidence other than that of telematic interception and, in particular, in a telematic seizure of documents or computer data: in fact, in the case in point, it would have been the French judicial authority that carried out the operations of interception of communications, while the Italian judicial authority would have limited itself to receiving the results, pertaining, therefore, to the apprehension of a communication still in progress.
The seizure, even where configurable, would in any case be null and void, due to the lack of the relevant authorization measure pursuant to Articles 253 and 254-bis of the Italian Criminal Procedure Code. Nor - the defense argues - could the seizure of a document, or of computer data, be proceeded with by means of an interception decree, given the different procedure legislatively provided for under Article 234-bis of the Code of Criminal Procedure. Indeed, in the case at hand, the aforementioned seizure should be deemed unlawful, taking into account that the computer data, stored abroad, were acquired without the consent of the rightful owner, the French judicial authority not being able to be considered such, as the Tribunal erroneously affirmed. Illegal, then, would have been the data collection carried out through the use of the IMSI Catcher investigative tool, due to the invasiveness of the means, the likely intrusion into a place of private residence, the concrete possibility of assimilating this act of investigation to the acquisition of telephone records and the correlative absence of the necessary authorization measure, with the consequent unusability of the results, pursuant to Article 191 of the Code of Criminal Procedure. Partially resuming the arguments spent in the second ground of complaint, the appellant censures the unlawful use of motivation by relationem, as there is no evidence of an independent assessment of the reasons underlying the decision. Specifically, the argumentative segment concerning the personal identification of the appellant A.A. as the person who had made use of the telephone apparatus to send the telematic messages would be deficient, given the promiscuous use of the same and the noted absence of a criterion of an objective nature to attribute its full and exclusive availability to him, especially considering that the utilities in question were used unquestionably by different subjects, who had different nicknames.
2.4. In a fourth ground of appeal, they complain of failure to comply with procedural rules, failure to take decisive evidence, and failure to state reasons, with regard to Articles 266, 266-bis, 267, 268, 270, 271, 234, 234-bis, 253, 254 and 254-bis, Code of Criminal Procedure. The defense recalls, first of all, what was deduced in the memorandum of July 12, 2023 - containing considerations substantially coinciding with what was censured in the ground of appeal sub 2.3., to be understood here as fully recalled - and retraces the arguments spent, in response, by the Court of Review in the contested order. The precautionary judge had noted, specifically: (a) the existence of a presumption of legitimacy of the activity carried out in relation to the investigative acts taken by the foreign judicial authority in the course of autonomous investigations undertaken by the same; (b) the entitlement of the foreign judge to verify the irregularity of the acts carried out by the foreign authority; (c) the necessity of the subjection of such acts, once introduced into the Italian criminal proceedings, and therefore deemed usable, to all the procedural and substantive rules proper to our legal system; d) the legitimacy of the acquisition of all the computer material supplied to the Italian authority, carried out not on the basis of previous interception activities, but as a result of acquisition orders issued by the French authority; e) the impossibility of bringing the activity of acquiring and deciphering the communicative data object of the chats within the group of interception activities, postulating, the latter, the capture of a flow of communications in progress.
In the face of these findings, the defense counsel argues that the aforementioned presumption of legitimacy cannot be given an absolute character: if this were not the case, the acts performed abroad by the foreign judicial authority would be unquestionable and, therefore, violative of the principle of formal and substantive equality and of the defendant's right of defense, who would be harmed in the event that, for example, said acts should not comply with the law of the place in which they should be applied, thereby generating an obvious inequality of treatment for all defendants for whom evidence was obtained from acts performed abroad by a judicial authority other than the Italian one.
In addition, the assumption that it is up to the foreign court to verify the legality of the acts performed by the foreign authority could not be considered practicable, given that the plaintiff is not a party to the criminal proceedings in the course of which the act whose legality is contested was performed. This assertion, moreover, would seem contradictory to what the Court of Review stated in the immediately following motivational segment, that is, in the part in which it affirms that the Italian judge is required to verify the compliance of acts performed on foreign territory by the judicial authority of another state with the procedural and substantive rules proper to our system.
According to the defense, such a check could not be carried out by the foreign judicial authority, which is deprived of jurisdictional power in the territory of the Italian state, it being the sole responsibility of the domestic judge, that is, the Italian judge, to determine whether or not an act, even if performed abroad by the judicial authority of another state, complies with the law of the state. What, therefore, in the case at hand, should involve the Italian court's verification of the proper acquisition of telematic communications. Except that, the appellant denounces how, in the present case, there was no such verification: although the Italian court had identified the competent body to carry out such a check, the precautionary judge would in fact have failed to do so, thus essentially evading the question pertaining to the legitimacy of the act. Nor could the different legal qualification of the act in terms of “seizure of documents,” instead of “interception of communications,” exclude the need to verify its legitimacy.
In fact, even for the seizure of computer data carried out at providers of computer, telematic and telecommunications services pursuant to Article 254-bis of the Code of Criminal Procedure, the regulating norm requires that the acquisition take place with a procedure that ensures the conformity of the acquired data with the original ones and their immodifiability: a procedure, this, which, in the case at hand, would not have been carried out since the data, not only were not copied on an adequate support, but were also modified. Missing, then, would be, in any case, the reasoned order by means of which to authorize the seizure of the telematic data. Beginning on page 54 of the appeal, the defense then re-proposes, once again, the issue of the nature of the investigative act constituted by the acquisition of the telematic messages by the French judicial authority through the technical operations of control on the server located in the territory of that state.
Criticizing the reasoning of the contested order in the part in which the review court erroneously spoke of “acquisition orders” - yet forgetting that they are expressly qualified by the French authority itself as “interception decrees” - the appellant returns to reiterate that, in the present case, it would be a matter of interception activities, and not already the acquisition of documents. On the one hand, the documents acquired would be, in fact, telematic messages transmitted by employing a telephone apparatus, or a communication between distinct subjects; on the other hand, the dispositive measure of the relevant apprehension would be prior to the sending of the messages, thus allowing the acquisition of the content of the communications in real time, at the very moment of their transmission. Otherwise, it would have to be admitted that the French judge issued an interception decree to seize telematic documents constituting correspondence.
But even the seizure of correspondence, since it is detrimental to a constitutionally relevant interest under Article 15 of the Constitution, is subject to rules specifically provided for by our legal system, which require the adoption of a reasoned dispositive measure, which, in the case at hand, would in any case be lacking. Contrary to the view of the Court of Reexamination, which reaches its conclusions on the nature of the act performed in terms of seizure of documents and not wiretapping, the appellant points out that the act of investigation performed by the French authority would have to be qualified as wiretapping, the contents of which, once decrypted, were documented in the form of a report, with the consequent application of the relevant procedural rules.
2.5. A fifth ground of censure, on the other hand, refers to the violation of Article 270 of the Code of Criminal Procedure, on the grounds that the filing of the minutes and recordings would never have been carried out, even though it was the use of the results of wiretaps carried out in other proceedings. In addition to the diversity inherent in the fact that these are proceedings pending in different states, in relation to which there is no possibility of a generalized exercise of jurisdictional power, moreover, the same diversity of the content of the procedural acts, resulting from the diversity of the crimes for which they were being prosecuted in each of the proceedings under consideration, would deport in this sense. Hence, the unusability of the content of the telematic messages intercepted by the French authority in the context of different proceedings.
That said, the censure is directed, first, at denouncing the merely assertive nature of the judicial argument that criminal proceedings initiated in different states, by different judicial authorities, in relation to different crimes would constitute the same proceedings.
Secondly, it is stressed that, contrary to the assertion of the Court of Review - that the crimes for which wiretaps were ordered by the French authority would fall within the range of those for which use is also envisaged in other proceedings, evidently different from those in which they were carried out - the type of crime would in no way affect the obligation to file the minutes and recordings when dealing with wiretaps from different proceedings.
Third, the exclusive applicability of the wiretapping regulations is once again reiterated.
2.6. In a sixth ground of appeal, a violation of the law and a related defect of motivation are alleged, with regard to the manner of acquisition of the circumstantial elements deduced from the content of the telematic messages learned by the French judicial authority and transmitted by it to the Italian one, which made use of them to formulate the judgment of circumstantial seriousness, placed at the basis of the ordered coercive measure. Having reiterated that the presumption of legitimacy cannot be absolute, the plaintiff's defense asserts that it would not be possible to argue that the procedure employed by a foreign judicial authority to acquire circumstantial elements abroad is exempt from the scrutiny of the Italian judicial authority, given that the prohibition on use knows no exceptions and applies to all acts of the proceedings under Article 191 of the Code of Criminal Procedure.
Also vitiated would be the motivating part of the contested measure, in the part in which it affirms the necessity, for the defense that complains of an illegitimate acquisition of the data by the French authority, to assert before the latter the relative infringement of its rights, given the impossibility for the appellant A.A. to challenge before the French judge the measure limiting his personal freedom issued by the Italian judge.
2.7. In a seventh grievance, it is alleged that the interlocutory proceedings were null and void. The review judge allegedly omitted any reasoning with regard to the failure to show to the defense the telematic streams and in relation to the violation of the jurisprudential principle, affirmed by the Court of Cassation, about the need to verify, through the apprehension of the relevant documentation, that the acquisition of the messaging by accessing the servers of (Omissis) is not contrary to mandatory norms and fundamental principles of our system, exclusively focusing, on the opposite, on the issue of the failure to exhibit the deciphering criteria. Except that, addressing this issue would at least require the availability of the streams to be decrypted, which, instead, in the present case, are absent from the file.
2.8. In an eighth ground of appeal, it is claimed that the right of defense has been violated, on the grounds that the failure to hand over the telematic flows and the key to proceed with their decoding would automatically inhibit the private party from exercising its defensive prerogatives, including the possibility of proving that the flows and the data that can be obtained from them have been manipulated. Specifically, the appellant refers to what was deduced in the previous ground of appeal and clarifies that the plea of nullity of the cross-examination proceedings held before the review judge was not only related to the failure to show the telematic streams but, also, to the absence of any procedural act documenting relevant activities, such as the deciphering of the messages and the subsequent transcription of them. After that, he deduces the total lack of motivation with regard to the advisory report filed by the defense, which was completely precluded from the analysis of the precautionary judge, although it referred to the uncertainty with regard to the technical-practical procedure adopted in order to arrive at obtaining the intelligible data of the chats and the impossibility of verifying their alleged inalterability.
2.9. A ninth censure - largely repetitive of the previous ones - again refers to the nature of the act of acquiring the telematic messages. The Tribunal of Review, confusing the notions of “content” and “container,” would in fact have erroneously considered that the telematic messages acquired by the French judicial authority and transmitted to the Italian one, far from constituting real interceptions, were nothing more than documents, while qualifying them itself as interceptions in the part in which it recalls a judgment assigning them said nature.
2.10. Finally, with the last ground of appeal, the appellant complains of violation of Article 354 of the Code of Criminal Procedure and of the principle of inviolability of the home under Article 14 of the Constitution. The appellant represents the uselessness of the results - pertaining to the identification of the defendant as the author of the telematic messages sent through the use of a certain user, having as formal holder such B.B. - acquired as a result of the investigative act carried out by means of the tool called IMSI Catcher, on the basis of the noted lack of a specific authorization measure. According to what has been specified by the defense, this is, specifically, a system that is used to collect data that are not at the disposal of the judicial authority; data that, on the one hand, are aimed at enabling the continuation of the investigation and that, on the other hand, are then used as actual evidence against the defendant, at least with reference to his personal identification.
Such an act, therefore, contrary to what was represented by the Court of Review, would not be prodromal to the execution of operations of interception of communications to be carried out in relation to the telephone user identified as a result of the use of the aforementioned instrument. In fact, in the case at hand, the telephone user was already known to the investigators, remaining, rather, the problem of locating the user in question, that is, of establishing in which place it was operational, since it was used to transmit messages. In the present case, however, this problem would have been solved by the officers of the Judicial Police by taking themselves to the vicinity of the appellant's home and collecting, through the use of the aforementioned instrument, data solely used to match the user, already identified, to the subject, also already identified, and, therefore, for the sole purpose of acquiring evidence in point of his identification. Contrary to the claims of the Court of Review, the act of investigation carried out with the instrument in dispute - not having been employed in the immediacy of the fact and not having served to acquire the availability of things pertinent to the crime or with the aim of avoiding the dispersion of the traces of the same - would not be comparable to the urgent acts of the Public Prosecutor, provided for by Article 354 of the Code of Criminal Procedure; so that it should have been carried out with prior authorization.
3. On August 30, 2024, the defense of the suspect filed a brief, in which he insists on what has already been deduced. In the first part of the brief, the defense recalls, first of all, the ruling issued by the EU Court of Justice on April 30, 2024 and the ruling of the United Sections of the Court of Cassation on February 29, 2024. It is recalled that, according to the Court of Justice, when the right of defense is violated, the procedural sanction of unusability is applied; and this happens in the case where the defendant cannot refute the elements against him, thus being deprived of the tools to be able to defend himself. It follows that the failure to show the telematic flows, the non-delivery of the decryption key, as well as the impossibility of disposing of the transcripts of the captured communications in their full form, determines the aforementioned violation and, therefore, the unusability of the elements charged. The aforementioned ruling of the Court of Justice, moreover, qualifies the interception of any telematic data as an interception activity; so that, in the absence of the relevant authorization order, the data acquired would be unusable. For the appellant, the ruling of the United Sections also emphasized the violation of the right of defense, when it made the full usability of evidence acquired abroad according to the lex loci conditional on compliance with the fundamental principles of the domestic legal system, differing from the pronouncement of the supranational court only in the manner in which the violation was carried out and in the distribution of the burden of proof. Where the ruling of the Court of Justice provides that already the non-disclosure of the documents determines the infringement of the right of defense, due to the resulting impossibility of drawing conclusions on the elements to be charged, the United Sections require the concrete demonstration of the existence of the risk of alteration of the telematic data, arguing that since the decryption key cannot generate erroneous data, the resulting encryption operation will always be correct. In the appellant's view, therefore, this ruling establishes the principle that it is up to the defense to prove the error in the transcription of the telematic data, thus elevating the right of access to the records to an essential condition for being able to exercise the defense prerogatives. In the case at hand, therefore, this right would be inhibited ab origine, as the suspect does not have what he needs to be able to counter and oppose the accusation, as required by the Court of Justice, in violation of Article 111 Const. Hence, the need to interpret the domestic ruling by comparing it with the supranational one. All this being said, the defense therefore re-proposes the same complaints already made in the main appeal, largely recalling arguments already spent there.
On p. 24 of the brief, the defense raises, finally, a question of constitutional legitimacy of Article 270, paragraph 2, of the Code of Criminal Procedure, for violation of Articles 3, 24 and 111 of the Constitution, also with reference to Article 268, paragraph 5, of the Code of Criminal Procedure, in the part in which it does not provide for a direct evidentiary prohibition of the usability of the results acquired, linked to the failure to comply with the obligation to deposit the minutes and recordings, given the constitutional relevance of the interests involved.
4. In a subsequent rebuttal brief, dated September 20, 2024, the defense counsel insists on objecting to the failure to expose the telematic streams, decryption key and related transcripts. Grounds for the decision 1. The appeal is unfounded. 1.1. The first ground of complaint, relating to the violation of Article 309, paragraphs 5 and 10, of the Code of Criminal Procedure, as to the late production at the hearing of the documents used to issue the contested order, is unfounded. 1.1.1. The question as to whether the Public Prosecutor can enrich the cognitive framework of the review court through the production of evidence of which he already had the availability pertains first of all to the respect of the adversarial process in the review proceedings. It should be recalled that, as a result of the amendments introduced by Law No. 332 of 1995, the Public Prosecutor is also obliged to present to the judge the elements in favor of the suspect as well as any deductions and defense pleadings already filed, an innovation that has expanded the guarantees for the person under investigation and has increased the spaces of knowledge attributed to the judge at the stage of control over the precautionary measure.
At the same time, the review procedure is strengthened, which has particular efficiency and speed, especially through the caducatory effect of the order determined by the failure to comply with the peremptory term provided for in Article 309, paragraph 5, of the Code of Criminal Procedure: the planned transmission of the acts to the Court also ends up ensuring the operation of the adversarial process. In fact, the Review Court receives all the acts previously submitted in support of the request for precautionary measures, without the Public Prosecutor being able to make any selection of the material, otherwise the review judgment would be altered by a fractional or partial transmission of acts, with consequent prejudice to the adversarial process itself. On the other hand, in addition to the acts on which the precautionary decision was formed, Article 309, paragraph 5, of the Code of Criminal Procedure prescribes that the elements that have arisen in favor of the suspect must also be transmitted, and case law has also deemed legitimate the production of elements against which the outcomes of defense investigations, which the suspect can introduce in the review judgment, are contrasted. It is evident, on the one hand, the balance between the parties that the procedural rules are intended to ensure, and on the other hand, the concern to give the review court the same position in which the judge of caution found himself at the time the measure was issued. This balancing act recurs in the course of the hearing as well, with Article 309(9) of the Code of Criminal Procedure providing that the review judge shall decide “also on the basis of the elements adduced by the parties during the hearing.”
However, even if one were to believe that the rule refers to the new elements known by the parties after the expiration of the peremptory time limit, it must be recognized that the rules under review in any case aim to ensure cross-examination of the circumstantial content and the basis of the precautionary prerequisites, while respecting the suspect's right of defense, so that such an objective presupposes that the person concerned is placed in a position to defend himself concretely through knowledge of the acts. Such knowledge is ensured by the possibility that is granted to the defense counsel to examine the documents filed in the clerk's office of the judge a quo and the review judge, which is functional to his informed participation in the discussion before the court. If one were to admit, without any balancing, the production at the hearing under Article 309, paragraph 9, of the Code of Criminal Procedure. of the elements in the possession of the Public Prosecutor and not placed by the latter as the basis of the precautionary application, the balance of the system would be in danger of being upset, as it would result in an impairment of the defensive activity, the adversarial process between the parties being compromised: the suspect would be faced with an unfavorable element of which the Public Prosecutor was already in possession and presented only at the in camera hearing, moreover beyond the peremptory term of five days provided for by Art. 309, paragraph 5, Code of Criminal Procedure. However, it should be noted that it is well possible that an element considered by the Public Prosecutor as irrelevant at the time of the request for the precautionary measure, may become important and relevant in the continuation of the investigation, so that it would seem difficult to assume its unusability in the same review proceedings, having as object the measure previously requested. In these cases, it is not possible to speak of ineffectiveness of the coercive measure under Article 309, paragraph 10, of the Code of Criminal Procedure, since the transmission of the acts was timely and the late production concerns a single act; moreover, there is no room even to hypothesize a case of unusability of the act, because such a procedural sanction-which, moreover, is a category of strict interpretation, concerning evidence in the trial court-is not provided for by any provision.
It must then be considered that the production directly at the review hearing of elements against the suspect, which were not the basis of the request for precautionary measures, affects the right of defense, configuring a cause of nullity under Article 178, paragraph 1, lett. c), of the Code of Criminal Procedure in relation to the assistance of the suspect, in all cases in which the latter is not put in a position to defend himself concretely. In other words, in the presence of such productions, the review court must ensure full respect for the adversarial process between the parties, assigning the suspect a reasonable period of time to defend himself. On the other hand, this is a solution that, albeit with reference to a different situation, has been indicated by the United Sections of this Court, which, on the subject of precautionary appeals, have affirmed the principle that it is permissible for the Public Prosecutor to produce documentation relating to new evidence, whether pre-existing or supervening, provided that such evidence relates to the same fact contested with the original precautionary request and that the parties' cross-examination is ensured in the chamber proceedings, including by granting a reasonable time limit for defense (U.S.S. Sect, No. 18339, 03/31/2004; Rv. 2273.57).
1.1.2. Well, in the present case, the verification of full compliance with the principle of cross-examination appears to have been adequately carried out by the Review Court. In the first place, a time limit for defense was duly granted by the Tribunal, aimed at allowing the appellant's defense counsel to view the documentation pertaining to the acts of the different proceeding No. 4837/2022 R.G.N.R., to be considered congruous, taking into account that the defense counsel was already aware of these acts, having already assisted A.A. also during the aforementioned, different proceeding. Secondly, it appears from an examination of the documents - moreover, attached by the appellant himself on pp. 4-6 of the appeal - permitted to this Court due to the fact that it is an error in procedendo, that the precautionary order had already been transmitted on June 24, 2023, so that the defense would certainly have had the opportunity to take sight of it. Finally, as to the censured late production, in court, of the identification card, it should be noted that it is, indeed, a mere summary document of the results of the investigations, the contents of which were easily obtainable from the other acts and minutes of the investigators' initiatives, made available to the judging authority and, moreover, knowable by the defense since they partially coincided with the investigative operations carried out in the context of the different proceeding no. 4837/2022 R.G.N.R.
It follows that there is no room for the acceptance of the defense's censures, which not even here have illustrated, moreover, in sufficiently specific terms, the full decisiveness of such acts, failing to explain - even in the breadth of the ground of appeal - the reasons by virtue of which, in the absence of such acquisitions, the same conclusion would not have been reached in terms of the seriousness of the evidence (ex plurimis, on similar cases, Sez. 5, no. 21205 of 03/03/2017, Rv. 270050; Sect. 2, no. 20191 of 04/02/2015, Rv. 263522; Sect. 6, no. 8657 of 12/12/2013, dep. 2014, Rv. 258797; Sect. 3, no. 37009 of 07/07/2011, Rv. 251392). 1.2. The second grievance, alleging the unlawfulness of the motivation per relationem, due to the failure to file the recalled act, is manifestly unfounded.
1.2.1. On this point, this Court of legitimacy has already had occasion to affirm, in United Sections, the principle, valid for any act of criminal proceedings, according to which what matters, in the event of motivation per relationem, is that the act, even if not attached or transcribed in the measure to be motivated, is specified through identifying data and, if not known, is easily knowable by the interested party, regardless of its existence and the validity of its notification, given that this does not represent the only way through which the acts are knowable in the process (ex multis, Sez. U, No. 17 of 21/06/2000, Rv. 216664; Sec. 2, No. 18741 of 01/04/2016, Rv. 267116; Sec. 5, No. 11191 of 12/02/2002, Rv. 221127). 1.2.2. In the present case, although the rejection order issued at the outcome of the different incidental proceeding does not appear to be physically attached to the file, it is not possible to doubt that the arguments contained in that order were known to A.A., who had participated in those proceedings as a suspect. With the consequence that the reference by relationem made by the Tribunal must therefore be considered entirely legitimate
. 1.3. The third and fourth grounds of appeal - which can be dealt with jointly, since they both concern the failure to comply with procedural rules, the failure to take decisive evidence, as well as the defect of motivation, in relation to Articles 266, 266-bis, 267, 268, 270, 271, 234, 234-bis, 253, 254 and 254-bis, Code of Criminal Procedure. - are unfounded. 1.3.1. At first, the jurisprudence of this Court, in examining the delicate issues on the subject of the use of encrypted messaging on the (Omissis) platform, acquired by means of a European investigation order from foreign authorities that had carried out its decryption, did not come to uniform conclusions. According to the prevailing orientation, in fact, the chats on the (Omissis) system, constituting communicative representations incorporated into a material base by a digital method or, in any case, information data of a documentary nature stored abroad and not a communicative flow, were acquirable by means of a European order of investigation, pursuant to Article 234-bis of the Code of Criminal Procedure, so that the rules on wiretapping set forth in Articles 266 and 266-bis of the Code of Criminal Procedure could not be applied (Sect. 1, No. 6364 of 13/10/2022, Rv. 283998 - 01; Sect. 3, No. 47201 of 19/10/2023, Rv. 285350 - 01; Sect. 1, No. 34059 of 01/07/2022, n.m.). The opposing position, on the other hand, ruled out the legitimacy of acquisition through the instrument of Article 234-bis of the Code of Criminal Procedure. on the assumption that the object of the acquisition abroad of encrypted messaging on the platform (Omissis) did not constitute computer data, thus considering it necessary to distinguish the hypothesis in which the acquisitive activity had concerned communications that took place in the static phase from that having as its object communications that took place in the dynamic phase, finding, in the first case, application of the provisions on search and seizure and, - in particular, that under Article 254-bis cod. proc. penale, in the second case, those of Articles 266 et seq. of the Code of Criminal Procedure, on the subject of wiretapping (Sec. 6, no. 44154 of 26/10/2023, Rv. 285284 - 01; Sec. 6, no. 44155 of 26/10/2023, Rv. 285362 - 01).
In a ruling dated February 29, 2024, the United Sections of this Court ruled on the point and, resolving the existing jurisprudential contrast, ruled that, in the matter of European Investigation Order, the transmission of the contents of communications exchanged by means of cryptophones, already acquired and decrypted by the foreign judicial authority in criminal proceedings pending before it, does not fall within the scope of Article 234-bis of the Criminal Procedure Code, which operates outside the hypotheses of cooperation between judicial authorities, but rather in the discipline relating to the circulation of evidence between criminal proceedings, as inferable from Articles 238 and 270 of the Code of Criminal Procedure and 78 disp. att. cod. proc. penale (Sez. U., no. 23755 of 29/02/2024, Rv. 286573-01; Sez. U., no. 23756 of 29/02/2024, Rv. 286589-01)
. With reference to the acquisition, carried out by means of O.E.I., of messages exchanged on group chats through an encrypted system, and already at the disposal of the foreign judicial authority, therefore, the discipline of Art. 234-bis cod. proc. pen. is not applicable, because the same is alternative and incompatible with that dictated on the subject of O.E.I. And indeed, Article 234-bis cod. proc. penale, introduced by Article 2, paragraph 1-bis, of Decree-Law No. 7 of February 18, 2015, converted with amendments, by Law No. 43 of April 17, 2015, provides verbatim that: “The acquisition of computer documents and data stored abroad, even other than those available to the public, is always permitted, subject to the consent, in the latter case, of the legitimate owner.” This provision, therefore, regulates not a means of evidence, but rather a way of acquiring particular types of evidence present abroad, which is implemented directly by the Italian judicial authority and disregards any form of cooperation with the authorities of the state where such data are kept. The E.O.I. system also regulates a way of acquiring cross-border evidence, which, however, is carried out within the framework of collaborative relations between judicial authorities of different states of the Union.
These are, therefore, disciplines that refer to events that are already different from each other in terms of the prerequisite for their application: the first concerns the acquisition of elements stored abroad, which is independent of forms of collaboration with the judicial authority of another state; the second, on the other hand, concerns the acquisition of elements stored abroad to be obtained or obtained with the collaboration of the judicial authority of another state.
The United Sections, therefore, went beyond the principle affirmed by the majority jurisprudence by virtue of which the messaging under examination could be acquired in the proceedings pursuant to Article 234-bis of the Code of Criminal Procedure, in the same way as computer data of a documentary nature stored abroad, to arrive at the different conclusion that the acquisition and use of the messages in question is subject to different rules, limits and guarantees, which depend on the manner in which the foreign authority has, in turn, acquired the data stored on the server. In particular, if this was done by means of wiretapping, conducted in real time, of an ongoing flow of communications, wiretapping activity has been carried out in separate proceedings with the consequence that Article 270 of the Code of Criminal Procedure applies. If, on the other hand, transcripts of communications that had already taken place were obtained from foreign judicial authorities and stored in the memory of the media used by the dialoguers, then the relevant data would be considered documents, which can be acquired pursuant to Article 238 of the Criminal Procedure Code
1.3.2. Therefore, the provision of Article 234-bis cod. proc. penale is inapplicable in the matter of acquisition and usability of data relating to communications that took place through the encrypted system (Omissis), because it is an alternative discipline and, therefore, incompatible with that relating to the O.E.I. system. In the case at hand, moreover, the O. E.I. has as its object the acquisition, by the Italian judicial authority, of messages exchanged on group chats through an encrypted system, and already at the disposal of the French judicial authority; a circumstance, moreover, which is incontrovertible, agreeing, on this point, both the contested order and the appellant's own prospectus.
The Public Prosecutor, therefore, acted under the powers provided in Chapter I of Title III of Legislative Decree No. 108 of June 21, 2017, implementing Directive 2014/41/EU of the European Parliament and of the Council of April 3, 2014, on the European Investigation Order in criminal matters. This is an instrument intended to implement the already existing forms of criminal cooperation within the Union referred to in Article 82(1) TFEU, which is based on the principle of mutual recognition of judgments and judicial decisions. This principle, in turn, is based on mutual trust, as well as the relative presumption that other member states respect Union law and, in particular, fundamental rights. The provision of such an instrument, therefore, correlates with the need to ensure an effective mechanism, of a general nature, respectful of the principle of proportionality (set out in the eleventh recital of the Directive), which in turn is linked to that of mutual recognition and trust in the respect of Union law (set out in the sixth recital) by the Member States and which, in any case, must ensure respect for fundamental rights (twelfth recital).
Within this framework are Article 2 of the directive, which states that “Member States shall execute an E.O. on the basis of the principle of mutual recognition and in accordance with this Directive,” and Article 9, which states that “The executing authority shall recognize an E.O, transmitted in accordance with the provisions of this Directive, without imposing any further formalities and shall ensure its execution in the same manner and in the same manner as if the investigative measure in question had been ordered by an authority of the executing State, unless it decides to invoke one of the grounds for non-recognition or non-execution or one of the grounds for postponement provided for in this Directive.” Therefore, the European Investigation Order must relate to evidence that can be acquired in the issuing State and must be executed in accordance with the provisions of the executing State for the performance of a similar act of evidentiary acquisition, with the presumption, moreover, of compliance with such discipline and fundamental rights, unless concrete verification to the contrary is provided (Sec. 6, No. 48330 of 25/10/2022, Rv. 284027, in reasoning).
The Public Prosecutor, with the E.O.I. under review, did not request the judicial authority of the other EU member state to proceed with an act of investigation, but acted pursuant to Article 45 of the aforementioned decree, for the limited purpose of requesting the transmission of documentation acquired in the course of a different proceeding pending in that country. In the case at hand, therefore, the European Investigation Order only had to give an account of the specific object of the evidence, the concrete acquisition of the evidence to be transferred being left to the executing state, in the manner provided for in that system (Sec. 2, no. 2173 of 22/12/2016, dep. 2017; 269000).
In conclusion, what was requested by the Italian judicial authority, and delivered by the French judicial authority, pertains to evidence already in the possession of the competent authorities of the executing state; what has important consequences for the purposes of the applicable discipline.
1.3.3. Nonetheless, this assumption does not render illegitimate the acquisition, nor does it preclude the usability of the data relating to the communications that took place through the encrypted system (Omissis), obtained by the French judicial authority in execution of O.E.I. issued by the Italian Public Prosecutor.
In fact, the qualifying error in which the contested order incurred does not determine its annulment, based on the provisions of Article 619, paragraph 1, of the Code of Criminal Procedure: precisely, the detected error did not have a decisive influence on the operative part, since, in the present case, the conditions of admissibility necessary to legitimately issue the E.O.I. subsist and there are no violations of fundamental rights.
In the first place, the admissibility condition set forth in Article 6(1)(b) of Directive 2014/41/EU, which requires that the requested act or acts could have been issued under the same conditions in a similar domestic case, can in fact be considered to have been met. Well, in the Italian criminal procedural system, evidence already available in other proceedings can be requested and acquired by the parties concerned. With the consequence that, when the O.E.I. advanced by the Italian Public Prosecutor concerns evidence already in the possession of the competent authorities of the executing State, there are no reasons to consider that the same must obtain prior authorization from the judge of the proceedings in which they would like to use them, as a necessary condition under Article 6 of Directive 2014/41/EU, since this condition is not provided for in our system, nor otherwise inferable from the O.E.I. system (Sez. U, No. 23755 of 29/02/2024, Rv. 286573-02; Sez. U., No. 23756 of 29/02/2024, Rv. 286589-02).
The issuance, by the Public Prosecutor, of E.O.I. aimed at obtaining the content of communications exchanged by means of cryptophones, already acquired and decrypted by the foreign judicial authority in criminal proceedings pending before it, therefore, does not have to be preceded by authorization of the Italian judge - as occurred in the case at hand - because such an authorization is not required, in the Italian legal system, for the acquisition of the content of telephone communications already acquired in other proceedings, possibly even if, pursuant to Article 132 of Legislative Decree no.,196 of 2003, from telephone or telematic service operators. According to the principles enunciated, moreover, even assuming that said acts qualify as results of interceptions of conversations or communications, their acquisition can be carried out on the basis of E.O.I. issued by the Public Prosecutor in the absence of prior authorization from the judge, since such authorization is not required in Italian law for the use of the results of interceptions in proceedings other than those in which they were ordered.
Nor, moreover, can a power to scrutinize the legitimacy of the procedure for acquiring the documentation in question be deemed to exist in the hands of the Italian deciding authority, this argument being belied by the reference regulatory context and the nature of the investigative tool used. Contrary to the appellant's claim, in fact, it has already been affirmed in the jurisprudence of legitimacy that the use of the documents transmitted by active rogatory, is not conditioned on an assessment by the Italian judge concerning the regularity of the acquisition procedures carried out by the foreign authority, since there is a presumption of legitimacy of the activity carried out and it is up to the foreign judge to verify the correctness of the procedure and the possible resolution of any question concerning the irregularities complained of in the preliminary investigation phase (ex multis, Sez. U, no. 23755 of 02/29/2024, in motivation; Sect. 6, no. 44882 of 04/10/2023, Rv. 285386; Sect. 3, no. 1396 of 12/10/2021, dep. 2022, in which in motivation reference is also made to Sect. 5, no. 1405 of 16/11/2016, dep. 2017, Rv. 269015; Sect. 2, no. 24776 of 18/5/2010, Rv. 247750; Sect. 1, no. 21673 of 22/1/2009, Rv. 243796; Sect. 5, no. 45002 of 13/7/2016, Rv. 268457).
Thus, the principle should be reiterated that the requesting authority is precluded from a review as to the legality of the manner in which the rogatorial act was carried out if no specific formality was indicated in the request for judicial assistance, and all the more so when the act of investigation was carried out previously, in the course of autonomous investigations undertaken by the foreign state, without prejudice to the fact that such an act, once introduced into the Italian proceedings as a result of rogatorial relations, and therefore usable, will then be subject to all the procedural and substantive rules proper to the Italian legal system, in particular with regard to the judge's evaluation of the compendium of documentary and investigative acquisitions and the possibilities for the suspect to exercise the prerogatives of protection (Sez. 3, no. 1396 of 12/10/2021, dep. 2022).
What, in other words, is equivalent to saying that the Italian judge cannot and should not know about the regularity of the acts of execution of investigative activities carried out by the foreign judicial authority, since said investigative activity is carried out according to the legislation of the foreign state; and, a fortiori, this is true when the original investigative activity was not carried out at the request of the Italian judicial authority, but was carried out, in the context of other proceedings instituted in the foreign state, on the initiative of that judicial authority whose results were transmitted, as c. d. cold, since it was acquired at a time prior to the request for O.E.I. (Sez. 1, no. 6364 of 13/10/2022, dep. 2023. Rv. 283998, in motivation).
As previously clarified, in the case under consideration, moreover, this is not a request to proceed with wiretapping, but a request for the acquisition of the documentary results of investigative activities that the foreign authority has already carried out, in its full autonomy, in compliance with its legislation in relation to other crimes; so that judicial protection relating to such acts can only find a place in that system. 1.3.4. Equally complied with - in the case under consideration here - is the other condition of admissibility, posed by Article 6(1)(a) of Directive 2014/41/EEU, relating to the need for proportionality of the E.O.I. Indeed, the examination of this profile must be carried out having regard to the proceedings in the context of which the European Investigation Order is issued. In the present case, no precise question appears to have been raised in relation to this aspect; in any case, the contested order points out that the E.E.I. was issued after the acquisition of precise elements against A.A., at that time already under investigation for the crimes of participation in the association dedicated to drug trafficking, headed by C.C. and D.D.
1.3.5. Nor, in light of the foregoing, can it be said that fundamental rights have been established to have been violated in these proceedings. In the first place, the evidentiary data transmitted by the French judicial authority were acquired in criminal proceedings pending before it on the basis of authorization orders adopted by a judge in connection with investigations for serious offenses and amply motivated in terms of the seriousness of the evidence - with respect to which, moreover, the very use of the system (Omissis) also constitutes a concrete and specific source of evidence against the users -; second, it must be ruled out that the unavailability of the encryption keys necessary to make the acquired communications intelligible constitutes a violation of the rights of defense and the guarantee of due process (see infra, sub 1.6.).
1.3.6. As for, then, the alleged illegitimacy of the data collection system executed through the use of the IMSI Catcher investigative tool, please refer to the considerations made below under 1.7. As for the censured lack of motivation with regard to the argumentative segment concerning the personal identification of the appellant A.A. as the person who allegedly made use of the telephone apparatus to send the telematic messages, the motivation of the order is sufficiently consistent, when (on pp. 21-29) it expressly highlights the multiple individualizing elements and findings: the frequent references to such A.A. ; the references often made in the conversations to his kinship relations with his uncle C.C.; the indications of birthdays of close relatives verified by the operating P.G.; the further clarifications regarding kinship relations and private life facts, also ascertained by the investigators; and the localizations of the IMEI codes matched to the accounts attributed to the present appellant, coinciding with the checks carried out in the territory against him.
1.4. The fifth ground of censure, which alleges violation of Article 270 of the Code of Criminal Procedure on the grounds that the filing of the minutes and recordings, as legislatively provided for, would never have been carried out, even though it concerns the use of the results of wiretaps carried out in other proceedings, is manifestly unfounded. For the purpose of the usability of the results of wiretaps legitimately carried out in other proceedings pursuant to Article 270 of the Code of Criminal Procedure, the filing of the recordings of them, as well as of the minutes and decrees of authorization, is not required, since such non-compliance is not among those indicated, with the character of peremptory nature, by Article 271 cod. proc. penal (ex multis, Sez. 5, no. 1801 of 16/07/2015, dep. 2016, Rv. 266410; Sez. 5, no. 14783 of 13/03/2009, Rv. 243609; Sez. 6, no. 27042 of 18/02/2008, Rv. 240972; Sez. 6, no. 26010 of 23/04/2004, Rv. 229973; Sez. 4, no. 44518 of 24/09/2003, Rv. 226815). This rule, in fact, makes the unusability of the results of wiretaps consequent only to the hypotheses governed therein; with the consequence that, since the existence of those normatively indicated prerequisites is not disputed in the case in point, the unusability of the results of those wiretaps cannot be considered. As, then, to the identification of the discipline applicable to the acquisition, carried out by means of O.E.I., of messages exchanged on group chats through an encrypted system, and already at the disposal of the foreign judicial authority, the considerations made under 1.3.
1.5 must be considered fully recalled. The sixth ground of appeal - concerning the manner of acquisition of the circumstantial elements deduced from the content of the telematic messages - is unfounded. The considerations made under 1.3. apply on this point, to be understood here in full.
1.6. The seventh and eighth complaints - which can be dealt with jointly since they both concern the failure to deliver the telematic flows and the key to proceed to their decoding, which would inhibit the private party from exercising the right of defense, including the possibility of demonstrating the manipulation of the flows and the data derivable from them - are also unfounded.
1.6.1. Indeed, these are improper requests, since they relate to access to an illicit messaging system, such as the system (Omissis). , representing an encrypted communication platform that allows the exchange of communications using cryptophones, i.e. smartphones suitably modified in software with the sole purpose of guaranteeing their inviolability, since the relevant operating system is characterized by special security requirements that can be summarized in the encryption of transmitted and stored data, in the possibility for the user to delete, almost in real time and even remotely, the entire memory of the phone by entering a c. d. panic code, or in the possibility of reporting the presence of detection systems or attempts at cyber-attack by external agents. On the subject of wiretapping of communication flows, moreover, it is a well-established principle that the unavailability of the algorithm that can be used to decrypt computer data does not determine any infringement of the right of defense, given that the interested party can avail himself of the procedure provided for in Art. 268, paragraphs 6 and 7, Code of Criminal Procedure to verify the content of the captures, but cannot also claim direct control through the exclusive and unmediated use of the decryption program (Sez. 6, no. 14395 of 27/11/2018, dep. 2019, Rv. 275534). Principle that, most recently, has also been reiterated by the United Sections of this Court, which specified, once again, that the inability of the defense to access the algorithm used within a communication system to encrypt the text of the same does not determine any violation of fundamental rights, having to deny, unless specific allegations to the contrary are made, the danger of alteration of data since the content of each message is inseparably matched to its encryption key. And an incorrect key has no chance of decrypting it, even partially (U.S. Sec., No. 23755 of 02/29/2024, Rv. 286573-06; U.S. Sec., No. 23756 of 02/29/2024, Rv. 286589-05). Nor, on the other hand,” the aforementioned United Sections point out, ”does supranational jurisprudence appear to have affirmed that the unavailability of the decryption algorithm to the trial record constitutes, per se, a violation of fundamental rights. In this regard, indeed, the EDU Court, ruling in relation to a case in which the data acquired had not been made available to the defense and the guilty verdict had been based on the mere fact of the use of an encrypted messaging system called (Bylock), merely stated that giving the appellant the opportunity to take cognizance of the decrypted material against him could construct an important step in preserving his defense rights without having, at the same time, asserted that such failure to make it available constituted an infringement of fundamental rights (EDU Court, Grand Chamber, 9/26/2023, Yuksel Yalginkaya v. Turkey, para. 336).
1.6.2. It follows from the foregoing that the censure must be considered inadmissible insofar as it complains of the lack of motivation regarding the advisory report filed by the defense, since it relates to the denial of the acquisition of evidence that, as the record stands, would in any case have been irrelevant for the purposes of deciding the case, taking into account the evaluations into which the same advice would have resulted. As put forward by the defense, in fact, the invoked consultancy would have been limited to providing merely repetitive evaluations of what was in any case censured in the grounds of appeal, in any case, duly analyzed and rejected by the judges of merit.
1.7. The ninth ground of complaint, referring to the nature of the act of acquisition of the telematic messages, is unfounded. The considerations made under 1.3 apply on this point, which are to be understood here in full. 1.8. Finally, the last ground of appeal, alleging violation of Article 354 of the Code of Criminal Procedure and of the principle of inviolability of the home under Article 14 of the Constitution, must be declared manifestly unfounded. It should first be pointed out that the IMSI code, which stands for International Mobile Subscriber Identity, is a numeric code, globally unique, stored in a special chip of the Sim card, which identifies a customer of the telephone network. That is, it is a code that identifies not already the device, but rather the user; what makes it clear, then, that the acquisition of this code does not pertain to conversations or communications, but only to the user subject. It, therefore, represents a tool of identification and geolocation, through an activity of identification of the user to be subjected to wiretapping by monitoring the users present in a given area, which is not, therefore, in itself, executive of an interception of conversations, but is necessarily prodromal to it. It is, therefore, a detection activity that is aimed exclusively at the identity of the individual telephone apparatus, and which is not even aimed at acquiring elements on any telephone contacts that such apparatus entertains in a given time frame - so that not even it could be spoken of, contrary to what the defense envisages in the first ground of appeal, as an activity assimilable to the acquisition of telephone records - being able ultimately to be traced within the acts that the Judicial Police put in place on its own initiative for the purposes of Art. 55 cod. proc. pen, with a view to subsequent investigative activities, and in a manner not dissimilar to others specifically provided for in the Code of Criminal Procedure. With the consequence that this activity, which does not operate any intrusion into the conversations in transit on the monitored device, does not violate any constitutional or supra-constitutional principle and cannot be assimilated to a means of searching for evidence, constituting only the operational prerequisite of the capturing activity of conversations.
It follows that, in order to carry out monitoring aimed at identifying the users to be subjected to wiretapping, an authorization decree is not necessary, which is instead indispensable - and obviously constitutes a condition sine qua non of the usability of wiretapping - in order to be able to pick up conversations passing over the user to be monitored, after the latter has been identified (Sec. 4, no. 41385 of 12/06/2018, Rv. 273929).
As for the question of constitutional legitimacy, promoted in the memorandum of August 30, 2024, finally, the College observes that it, while relevant to the case at hand - the appeal having as its object the declaration of usability or otherwise of the results acquired through O.E.I. - is manifestly unfounded. The non-necessity of any filing under Article 270 of the Code of Criminal Procedure, indeed, derives from the circumstance that the results of the interception in the proceedings a quo affect the authorizations of the proceedings ad quem as a mere factual assumption, affecting the motivation of the subsequent, autonomous authorization measures only in terms of their relevance for the verification of serious indications of crime, required by Article 267, paragraph 1, of the same code, thus constituting a legislative choice that is not manifestly unreasonable, fully compliant, not only with the right of defense, but also with the principles of formal and substantive equality and due process. On this point, moreover, it has already been clarified under 1.4. that, on the subject of wiretaps ordered in other proceedings, the failure to file the relevant documents with the authority competent for the different proceeding does not determine their unusability, since said sanction is not provided for by Article 270 of the Code of Criminal Procedure. and is not included in the list of those in art. 271 cod. proc. penale having a peremptory character: a principle that retains its validity even following the Constitutional Court's ruling No. 336 of 2008, which - declaring the constitutional illegitimacy, with reference to Articles 3, 24, second paragraph, and 111 Const, of Art. 268 of the Code of Criminal Procedure, insofar as it does not provide that, after the service or execution of the order ordering a personal precautionary measure, the defense counsel may obtain the transposition on magnetic tape of the recordings of intercepted conversations or communications, used for the purposes of the adoption of the precautionary measure, even if not deposited - expands the rights of the defense, affecting the forms and methods of depositing the reels, but without affecting the regime of procedural sanctions on the subject of unusability of interceptions referred to in Art. 271 of the Code of Criminal Procedure (Sec. 5, No. 14783 of 03/13/2009, Rv. 243609).
3. In view of the foregoing, the appeal must be dismissed, with the appellant ordered to pay the court costs.
P.Q.M.
Dismisses the appeal and orders the appellant to pay the court costs. Sends to the clerk's office for the fulfillment of the requirements of Article 94, paragraph 1-fer, disp. att. cod. proc. pen Thus decided in Rome on September 26, 2024. Filed in the Registry on December 3, 2024.