The prohibition against the use of conversations or communications of defense attorneys, pursuant to Article 103, paragraph 5, of the Code of Criminal Procedure, does not indiscriminately apply to all conversations of individuals holding the role of defense attorney but only to those which, upon subsequent review, are found to pertain to the function being exercised.
Pursuant to Article 271, paragraph 2, of the Code of Criminal Procedure, "interceptions concerning conversations or communications of the individuals indicated in Article 200, paragraph 1, may not be used when they pertain to facts known due to their ministry, office, or profession, unless the same individuals have testified about such facts or have disclosed them in another way." According to consistent case law of the Supreme Court, the prohibition on using the results of interceptions, established by Article 271, paragraph 2, of the Code of Criminal Procedure, is intended, among other things, to protect attorneys (as well as other individuals listed in Article 200, paragraph 1, of the Code of Criminal Procedure) and the exercise of their function, even if not formalized by a professional mandate, provided that such exercise is the reason for the knowledge of the fact. An attorney may, by virtue of their profession, become aware of facts related to a person who is not their client.
It follows that this prohibition exists and applies when intercepted conversations or communications are relevant to the professional activity carried out by the individuals listed in Article 200, paragraph 1, of the Code of Criminal Procedure, and, consequently, concern facts known due to the profession exercised by these individuals, regardless of whether it involves indirect interception. Conversely, the prohibition on use established by Article 271, paragraph 2, of the Code of Criminal Procedure, does not apply when intercepted conversations or communications are unrelated to the professional activity performed by the individuals indicated in Article 200, paragraph 1, of the Code of Criminal Procedure, and consequently do not pertain to facts known due to the profession exercised by the same individuals.
Supreme Court of Cassation
Section V, hearing of November 8, 2024 (decision issued on December 11, 2024), No. 45578
Facts
The ordinance dated July 11, 2024, issued by the Court of Review of Catania, is contested. It upheld the ordinance issued by the Investigating Judge (G.I.P.) of the Court of Catania on May 30, 2024, which applied the precautionary measure of detention in prison against G.R., who was strongly suspected of the crime of external complicity in a mafia-type criminal association (count 1) for making his business activities available to the clan led by G.E., considered a branch of (OMISSIS), by concluding a synallagmatic agreement that generated undue advantages.
The contested measure focused, first and foremost, on the criminal profile of G.E. and his criminal rise, reconstructed through references to statements made by cooperating witnesses, according to whom G.E. had started his entrepreneurial activities with the financial support of mafia members C.-D. and through the use of funds of illicit origin. Over time, he strengthened his role by demonstrating a great ability to establish equal relationships with key figures of local criminality, becoming a point of reference in the (OMISSIS) context (in this regard, the statements made by cooperating witness P.A. were also cited), consolidating around himself a new criminal group and being able to interact on equal terms with other mafia figures such as R.S., then leader of the Catanese family of (OMISSIS), as well as members of the mafia family of (OMISSIS) and the (OMISSIS).
The case involving the detention in prison of R.G. (against whom the hostility of other inmates dissipated following the intervention of the "friends from Catania," conversation dated 27/10/2021) was also considered indicative of G.E.'s "mafia charisma," as well as the conversations of V.G. on 14/08/2021 and 05/11/2021, which were similarly deemed indicative of G.E.'s mafia stature.
Furthermore, after the confiscation of the company (OMISSIS) and other packaging businesses traceable to G.E. (already under seizure and judicial administration since 24/01/2019) became definitive through a decree issued by the Catania Court of Appeal on 22/10/2022, it was noted that G.E. and his associates persisted in operating in the same economic sector, which was significant for territorial control and for the collection of profits destined for the same members of the organization.
Within this context, the activities carried out by G.R. were examined. According to the reconstruction of the investigating judge, G.R. entered into an illicit agreement with G.E. and R.S., a prominent mafia figure from Catania, resulting in reciprocal advantages.
2. The appeal, filed by the defense counsel, articulated two grounds.
2.1. With the first ground, the defense challenges the contested measure on the basis of legal violations, arguing the inadmissibility of the telephone conversation that took place on 22/04/2019 (No. 2385) between the appellant and the attorney. The defense contends that the ruling cited by the Court of Review (Section 5, No. 42854 of 25/09/2014) should have led to a different conclusion, as it concerned a case in which the lawyer was under investigation for external complicity in a mafia association and was himself intercepted: the conversation was deemed admissible in light of the familiarity and confidentiality of the relationship existing between the interlocutors, whereas in the present case, no such familiarity or confidentiality existed.
The other ruling of this Court cited by the Court of Review also concerned a case different from the one at hand; the defense invokes the application of the principle established by this Court (in ruling No. 32905 of 2020), according to which the prohibition against interceptions applies even independently of a specific and formal mandate, when the existence of a mandate can be inferred from the nature of the conversations themselves.
2.2. With the second ground, the defense alleges legal and motivational errors concerning the immediacy and concreteness of precautionary needs, as the relationships between the appellant and G.E. dated back to 2019, even though they were formally contested until 2021. The reasoning of the contested measure is also described as illogical and contradictory in terms of the adequacy of the measure.
3. The Deputy Prosecutor General concluded for the inadmissibility of the appeal.
The defense concluded in favor of the acceptance of the appeal.
In law
1. The objection forming the basis of the first ground of appeal, with which the defense counsel, attorney ID, contests the admissibility of conversation No. 2385 of 22/04/2019 between the appellant and himself, is manifestly unfounded.
According to Article 271, paragraph 2, of the Code of Criminal Procedure, "interceptions concerning conversations or communications of the persons indicated in Article 200, paragraph 1, may not be used when they pertain to facts known due to their ministry, office, or profession, unless such persons have testified about the same facts or disclosed them in another way." According to the established case law of the Supreme Court, the prohibition on the use of intercepted conversations, established by Article 271, paragraph 2, of the Code of Criminal Procedure, is aimed, among other things, at protecting the lawyer (as well as the other subjects indicated in Article 200, paragraph 1, of the Code of Criminal Procedure) and the exercise of their function, even if not formalized in a professional mandate, provided that such exercise is the cause of the knowledge of the fact. A lawyer can, by virtue of their profession, become aware of facts relating to a person who is not their client.
It follows that this prohibition exists and is applicable when the intercepted conversations or communications are relevant to the professional activity performed by the subjects indicated in Article 200, paragraph 1, of the Code of Criminal Procedure and, consequently, concern facts known due to the profession exercised by these subjects, regardless of whether it is an indirect interception (Section 5, No. 31548 of 24/06/2021, Rv. 281685-01; Section 5, No. 17979 of 05/03/2013, Iamonte, Rv. 255516, which criticized the decision of the trial judge who concluded that the results of intercepted conversations between the defendant and a lawyer were admissible. The judge distinguished between facts known by the lawyer as a defense counsel in a civil proceeding and facts known as a friend, which were outside the scope of the prohibition. The judge failed to consider that the reason for the knowledge of those facts was still the role of the lawyer, who was advising the defendant as such).
Conversely, the prohibition on use established by Article 271, paragraph 2, of the Code of Criminal Procedure, does not apply when the intercepted conversations or communications are unrelated to the professional activity performed by the persons indicated in Article 200, paragraph 1, of the Code of Criminal Procedure, and, consequently, do not concern facts known due to the profession exercised by these persons (Section 6, No. 18638 of 17/03/2015, Bellocco, Rv. 263548).
1.2. The contested measure follows this precedent, having considered, in rejecting a similar defense objection, that: at the time of the conversation, no defense mandate had been issued in favor of attorney D, which was granted five years later; at the time of the interception, G.R. was merely an injured party in relation to the attempted murder perpetrated against him by G.E.; and, in any case, the content of the conversation suggested that G.R. was not addressing attorney D as his defense counsel.
The prohibition on the use of conversations or communications of defense lawyers, pursuant to Article 103, paragraph 5, of the Code of Criminal Procedure, does not indiscriminately apply to all conversations of those who hold the status of defense lawyer but only to those that, upon subsequent verification, are found to pertain to the function exercised.
The precedent cited by the defense (Section 2, No. 32905 of 30/10/2020, Rv. 280233-01, which states that "For the applicability of the prohibition on interceptions concerning conversations or communications of defense lawyers, it is not necessary that the defensive activity be proven by a specific and formal mandate conferred in accordance with Article 96 of the Code of Criminal Procedure. The existence of a fiduciary mandate can also be inferred from the nature of the conversations themselves") is not relevant to the present case. This precedent still requires that the conversation in question, for which inadmissibility is claimed, be relevant to a (possible) fiduciary mandate, even if not formally conferred, meaning that the very reason for the statement in the intercepted conversation must be attributable to the professional activity carried out by one of the interlocutors.
In the present case, however, the appellant did not request any advice, and, on the other hand, the interlocutor did not express any opinion, merely receiving the information content neutrally without expressing any interest in the disclosure. Moreover, the literal tenor of the conversation in question, as reported in the contested measure, provides no basis for considering the content of the statement made by the judge to be attributable to the professional activity performed by his interlocutor.
2. The second ground of appeal is inadmissible. Without disputing the consistency of the incriminating elements against the appellant concerning the crime under Articles 110 and 416-bis of the Criminal Code, the defense argues the absence of concrete and current precautionary needs, citing the existence of evidence of conduct that occurred up until 2019 but not “up until 2021.”
2.1. Article 275, paragraph 3, of the Code of Criminal Procedure, as is well known, provides for a relative presumption of social dangerousness regarding the existence of precautionary needs. This presumption also applies in cases of charges concerning external complicity in a mafia association and can only be overcome through a prognostic assessment based on factual data emerging from the investigative findings, evaluating the repeatability of the situation that led to the extraneus’s contribution to the life of the organization. This evaluation must consider whether or not common interests persist with the mafia association, without the need to prove the severance of ties, which, in theory, may have never existed (Section 6, No. 18015 of 13/04/2018, Maesano, Rv. 272900; Section 2, No. 32004 of 17/06/2015, Putorti, Rv. 264209; contra Section 1, No. 10946 of 16/12/2020, issued 2021, Rv. 280757-01).
Furthermore, regarding the immediacy of precautionary needs, the requirement under Article 274, paragraph 1, letter c), of the Code of Criminal Procedure is not equivalent to the imminence of specific opportunities for recidivism. Instead, it requires the precautionary judge to make a prognostic evaluation of the likelihood of repeat offenses based on a thorough analysis of the specific case. This analysis must consider the modalities of the conduct, the personality of the subject, and the socio-environmental context. The evaluation should be more detailed the greater the temporal distance from the facts but does not include predicting specific opportunities for recidivism (Section 5, No. 12869 of 20/01/2022, Rv. 282991-01; Section 5, Judgment No. 11250 of 19/11/2018, issued 13/03/2019, Rv. 277242; in accordance: Section 1, Judgment No. 14840 of 22/01/2020, Rv. 279122; Section 5, Judgment No. 33004 of 03/05/2017, Rv. 271216; Section 2, No. 5054 of 24/11/2020, issued 2021, Rv. 280566).
The prognostic judgment must be based solely on a rigorous and comprehensive evaluation of the behaviors and modalities of the facts attributed to the subject while also considering the temporal remoteness of the criminal acts for which the precautionary measure is issued.
2.2. The complaint does not address the above interpretative guidelines or the reasoning of the contested measure, which highlighted the weight of the incriminating elements gathered against the appellant. Specifically, it noted the existence of a synallagmatic agreement concluded with G.E. and R.S. (head of the Catania (OMISSIS) family) from which reciprocal and prolonged advantages derived and which provided elements for evaluating the concreteness of precautionary needs under the prediction of Article 274, paragraph 1, letter c).
2.3. The contested measure, in particular, gave detailed consideration to multiple elements relating to the operation of a criminal group in (OMISSIS), led by G.E. and linked to the Catanese (OMISSIS) family. It highlighted the activities carried out in this context by the appellant, who turned to G.E. as an intermediary for the illicit purchase of fuel, avoiding taxation and excise duties, and concluded an agreement with G.E. and other members of the mafia family (OMISSIS) in Catania (particularly R.S.). The agreement stipulated that a portion of the profits would be shared with these individuals. After some delays in payments, G.E. fired a gunshot at the appellant (conversation of 18/04/2019, "to not lose the friendship"), resulting in G.E.’s arrest.
The intercepted conversations also revealed that, even after G.E.’s arrest, the appellant continued his relationship directly with R.S., to whom he paid the agreed sum (conversation of 08/08/2019), and continued to send monthly payments to G.E. (conversation of 29/11/2019), further confirming the mafia nature of these commercial dealings.
The continuation of the relationship between the appellant and mafia members of the Catania family, even after G.E. shot him, knowing that the money paid to R.S. was "for the family," was considered a negative indicator of the suspect’s personality (along with other elements, including a prior conviction for the offense under Article 416-bis of the Criminal Code).
In the present case, however, the defense generally argues that the appellant’s conduct persisted “up until 2021,” without contesting the content of the conversation of 20/12/2021 (No. A2.5354), which the Court used to infer that the illegal activity continued at least until that date.
3. Consequently, the appeal must be declared inadmissible, and the appellant is ordered to pay legal costs and a fine of three thousand euros to the Cassa delle Ammende. The court clerk is instructed to fulfill the requirements of Article 94, paragraph 1-ter, implementing provisions of the Code of Criminal Procedure.
For this reasons
Declares the appeal inadmissible and orders the appellant to pay legal costs and a fine of three thousand euros to the Cassa delle Ammende. Directs the court clerk to fulfill the requirements of Article 94, paragraph 1-ter, implementing provisions of the Code of Criminal Procedure.