Usability of encrypted content gatherend abroad and transmitted to Italy with an EIO depends on how the foreign authority had acquired the conversations.
The acquisition and use of messages is subject to different rules, limits and guarantees that depend on how in which the foreign authority has acquired the data stored on the server.
In particular, if this was done by means of capture of a flow of communications in progress (real time interception), interception activity in separate proceedings has been carried out with the consequence that, although they may be requested by the Italian prosecutor by means of a European investigation order, Article 270 of the Italian Code of Criminal Procedure applies.
It is, however, up to the judge of the State of issuance of the European investigation order to assess the respect of fundamental rights, the right of defense and the guarantee of a fair trial.
If, on the other hand, transcripts of communications that have already taken place and are stored in the memory of the media used by the dialoguers were obtained from foreign judicial authorities, then the relevant data would be considered documents, which can be acquired under Article 238 of the Code of Criminal Procedure.
SUPREME COURT OF CASSATION
SECTION I CRIMINAL
(hearing date 12/03/2024, filed 03/04/2024), Judgment No. 13535
JUDGMENT
on the appeal brought by: A.A. born in C on (Omissis)
against the order of 06/22/2023 of the TRIB. LIBERTY of BARI
Hearing the report delivered by Councilor FRANCESCO ALIFFI;
heard the conclusions of PG OLGA MIGNOLO, who requested the dismissal of the appeal.
The trial
1. With the order indicated in the preamble, the Court of Bari, hearing the case pursuant to Article 309 of the Code of Criminal Procedure, upheld the order with which the Judge for Preliminary Investigations had applied to A.A. the precautionary measure of custody in prison because he had been reached by serious indications of guilt regarding the crime of attempted murder, committed against B.B. and C.C., aggravated by the mafia method and purpose as well as the instrumental crime regarding weapons.
According to the Judges of the precautionary measure, the involvement of A.A. in the organization and execution of the murderous episode, in addition to the conversations, telephone and environmental, intercepted in other proceedings, the encrypted chats acquired abroad by European or-dine of investigation, the technical findings made in 'immediacy, the images recorded by cameras located at the scene of the events and some summary information.
Of fundamental importance are the chats. These are voice conversations and messages extracted from the encrypted platform SKY ECC traceable to devices, marked with different PINs, in use by A.A. and other individuals affiliated with a group, the "(Omissis)", operating within the mafia-type organization known as "(Omissis)". In some of them, interspersed in March 2020, the interlocutors, including A.A., give an account of the organization of a murder against members of the rival clan, the "(Omissis)," and in particular B.B. In the conversations interspersed on the same day of the ambush, September 30, 2020, and in those immediately following, the interlocutors exchange explicit comments on the outcome and the role of material executor played by A.A.
The court finds that the chats are usable in accordance with the principles expressed in several widely cited Supreme Court rulings.
The messaging, written and voice, was acquired, after an exchange of information between police authorities, in execution of a European investigation order addressed to the competent French judicial authority. It was the latter that transmitted the data poured onto a DVD attached to the report of the operations carried out after decryption made possible by the identification of the necessary algorithm used by the company that owned the server.
Since this was documentary information data stored abroad, the procedural scheme set forth in Article 234-bis of the Code of Criminal Procedure was correctly applied. The discipline of wiretapping should not have been applied since the latter postulates the capture of ongoing communication flows. On the other hand, the prosecutor through the EUROPEAN INVESTIGATION ORDER never formulated a request to proceed with wiretapping activities but requested the transmission of copies of messages referable to the PIN of interest exchanged on the SKY ECC platform.
In the face of the presumption of regularity of the activity carried out abroad, the defense did not put forward any specific deductions regarding respect for fundamental rights and respect for the principles of proportionality in the terms indicated by the national s supranational regulations in ternational EIO.
As for the procedure for the upstream formation and acquisition of evidentiary data in the foreign country where these activities took place, it does not appear that the defense asked the prosecutor for documentation regarding the nature of the investigative activity in order to verify its compatibility with fundamental principles of our legal system. In any case, the absence of specific information regarding the investigative activity carried out by the police before and independently of the OEI does not infringe on the right to be heard. The plea that the order is null and void for lack of independent assessment regarding the profile of the usability of the encrypted chats is unfounded because it is generic in the face of a genetic order that is amply motivated on all profiles.
2. A.A. appeals, through his defense counsel, relying on three grounds, dealt with jointly, with which he complains of vice cli motivation and failure to comply with criminal law with reference to Article 292 of the Criminal Procedural Code, as well as violation of procedural rules and defect of motivation on the issue of the usability of encrypted chats.
The appellant argues that the contested order did not exhaustively respond to the defense grievances, limiting itself to observing that the independent assessment by the Judge for Preliminary Investigations could not be considered excluded in the presence of the mere reference to the records of the investigation file as summarized in the prosecutor's request.
The review court, in order to overcome the defense's remarks on the issue of the usability of encrypted chats, quoted verbatim motivational passages from a ruling of the Court of Cassation, Sec. 1, no. 6363 of 2023, without explaining the reasons why it adhered to the orientation that considers the acquisition legitimate under Article 234 of the Criminal Procedural Code and, conversely, the reasons for the 'unfoundedness of the opposing defense thesis also supported by different jurisprudence of legitimacy (Sec. 4, no. 3291S).
It gave no weight to the circumstance, although documented by the defense, of the filing with the secretariat of the prosecutor's office of the request, which remained unfulfilled, for documentation, among other things, attesting to the manner in which Europol executed the data contained in the server with attached minutes.
In the absence of documentation useful for verifying the manner in which the chats were acquired, the information note of the judicial police containing the transcript of the chats cannot be used because the judge cannot verify compliance with the fundamental principles of our legal system and respect for the right of defense.
In any case, it does not appear that the activity of capturing and deciphering telematic flows was carried out with the prior control of the judicial autoriti1 always necessary falling within the notion of correspondence if not data acquired through interception activities. For this reason, the French judicial authority, when executing the European Investigation Order, should also have transmitted the minutes attesting to the manner in which the computer data was acquired and the decryption and transcription operations were carried out in order to allow the defense to control compliance with the fundamental principles and mandatory norms of our legal system, starting with the right to adversarial evidence.
With this in mind, the defense had made a request to the District Prosecutor's Office, attached to the appeal for its self-sufficiency, to know how the data contained in the server was acquired as well as the procedure followed by the French judicial authority to proceed with the seizure of the server and in any case the acquisition from the messaging contained therein.
The lack of documentation makes it impossible to verify the correspondence between the texts and images exchanged telematically and the texts and images obtained through the decoding computer program.
Only control over the manner in which the evidentiary process was conducted can make it possible to ascertain whether the encrypted massage was acquired:
-by interception of the telematic flow;
-by inoculation of a computer capturer;
-by acquisition of the computer document stored in the server after the communication has been exhausted.
While in the first two cases, as can be deduced from Article 6(1)(b) of the EU Directive on the European Investigation Order, which requires compliance with the rules laid down by the requesting countries, the acquisition of the results would be lawful only if the conditions laid down in Art. 270 of the Code of Criminal Procedure, whereas if the acquisition took place by copying the computer data stored in the server or searching the computer or telematic system, the rules on forensic copying and guaranteeing the authenticity of the computer data must be observed.
Given the current regulations on tabuates, in any case the evidentiary acquisition of the content of messages exchanged thematically and stored in the server always requires prior authorization from the judicial authority.
Reasons for the decision
The appeal is well-founded to the extent clarified below. The complaint regarding the absence of autonomous assessment does not escape a declaration of inadmissibility due to its vagueness.
The appellant merely pointed out the material incorporation in the genetic order of the prosecutor's request without succeeding in demonstrating the absence on the part of the precautionary judge of an effective and autonomous scrutiny of the request and of the serious indicia of guilt, however present.
2. The complaints regarding the usability of encrypted chats hit the nail on the head.
2.1. In examining the sensitive issues concerning the use of encrypted messaging on the "SKY-ECC" platform acquired by European investigation order from foreign authorities that had carried out its decryption, the jurisprudence of this Court of Cassation has not reached uniform conclusions.
According to the prevailing orientation, the "chats" on "SKY ECC" system, constituting communicative representations embedded in a material basis by a digital method or otherwise information data of a documentary nature stored abroad and not communicative flow are acquirable by means of European order of investigation, pursuant to Art. 234-bis cod. proc. pen, so that the rules on wiretapping under Articles 266 and 266-bis of the Code of Criminal Procedure do not apply (Sect. 1, No. 6364 of 13/10/2022, Calderon, Rv. 283998 01; Sect. 3, No. 47201 of 19/10/2023, Bruzzaniti, Rv. 285350 - 01; Sect. 1, No. 34059 of 01/07/2022, Molisso, non mass.).
The opposing orientation excludes the legitimacy of the 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 "SKY ECC" platform does not constitute computer data. It considers, however, that a distinction should be made between the 'hypothesis in which the acquisition activity concerns communications that occurred in the "static" phase and that in which it concerns communications that occurred in the "dynamic" phase. In the first case the provisions on search and seizure apply and, in particular, in that of art. 254-bis cod. proc. penal, in the second case the activity must be framed in the discipline of Articles 266 et seq. of the Code of Criminal Procedure on the subject of wiretapping (Sec. 6, no. 44154 of 26/10/2023, Iaria, Rv. 285284 - 01; Sec. 6, no. 44155 of 26/10/2023, Kolgjokaj, Rv. 28536:2 - 01).
2.2. In the face of these discordant decisions, the Third Criminal Section of this Court by Order No. 47798 of November 3, 2023, highlighting the contrast in this matter, referred the matter to the United Sections, urging its ruling on these points:
- whether the transfer to the Italian Judicial Authority, in execution of a European Investigation Order, of the content of communications made through cryptophones and already acquired and decrypted by the foreign Judicial Authority in its own criminal proceedings, constitutes the acquisition of documents and computer data under Article 234 bis of the Code of Criminal Procedure or documents under Article 234 of the Code of Criminal Procedure, or is attributable to other rules relating to the acquisition of evidence;
- whether the above transfer should be subject to prior judicial review of its legality, in the state of issuance of the European Investigation Order;
- whether the usability of the investigative results referred to in (a) above is subject to judicial review in the State of issuance of the European Investigation Order.
Subsequently, the Sixth Criminal Chamber also decided to refer the matter to the United Sections, asking to clarify:
- whether the acquisition, by means of a European order of 'investigation, of the results of wiretaps ordered by a foreign judicial authority, in its own proceedings, on an encrypted computer platform and on cryptophones integrates the hypothesis governed, in the national system, by Article 270 of the Code of Criminal Procedure;
- whether, for the purpose of the issuance of the European order of investigation aimed at the aforementioned transfer, the prior authorization of the judge is required;
- whether the usability of the investigative results referred to in point a) above is subject to judicial review in the State of issuance of the European Investigation Order.
2.3. In its decision of February 29, 2024, the United Sections ruled separately on the two appeals, affirming in relation to the questions raised by the Third Chamber (Provisional Information No. 3 of 2024):
- that the transfer to the Italian Judicial Authority21ria, in execution of European Investigation Order, of the content of communications made through cryptophones falls within the acquisition of acts of a criminal proceeding, which, depending on their nature, alternatively finds its basis in Articles 78 disp. att. cod. proc. penale, 238, 270 cod. proc. penale and, as such, complies with Article 6 of Directive 2014/41/EU;
- that it is within the prosecutor's powers to acquire records of other criminal proceedings;
- that the judicial authority of the State of issuance of the European Investigation Order must verify the respect of fundamental rights, including the right of defense and the guarantee of a fair trial.
In connection with the appeal from the Sixth Chamber, the United Sections agreed (Provisional Information No. 4 of 2024):
- that the acquisition, by means of a European order of 'investigation, of the results of wiretaps ordered by a foreign judicial authority, in its own proceedings, on an encrypted computer platform and on cryptophones is an act attributable to Article 270 of the Code of Criminal Procedure, and that the European order of investigation can be requested by the prosecutor;
- that the Judicial Authority of the State of issuance of the European Investigation Order must verify the respect of fundamental rights, including the right of defense and the guarantee of a fair trial By virtue of these decisions, the two appeals --already assigned to the Third Chamber and the Sixth
Chamber--were dismissed.
2.4. It can be seen from the provisional information just examined that the Joint Sections overcame the principle affirmed by the majority jurisprudence under which the messaging under scrutiny can always be acquired in the proceedings pursuant to Article 234-bis of the Code of Criminal Procedure, in the same way as information 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 that 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 capture, conducted in real time, of a flow of communications in progress, interception activity in separate proceedings has been carried out with the consequence that, although they may be requested by the Italian prosecutor by means of a European investigation order, Article 270 of the Italian Code of Criminal Procedure applies. It is, however, up to the judge of the State of issuance of the European investigation order to assess the respect of fundamental rights, the right of defense and the guarantee of a fair trial. If, on the other hand, transcripts of communications that have already taken place and are stored in the memory of the media used by the dialoguers were obtained from foreign judicial authorities, then the relevant data would be considered documents, which can be acquired under Article 238 of the Code of Criminal Procedure.
3. That being the case, it is clear that the Court of Review, conforming to the principles set forth in the outdated guideline, erroneously considered it irrelevant to ascertain the manner in which the French authority had acquired the conversations stored in the server and then transmitted, in execution of the European Investigation Order, to the Italian prosecutor who had requested them. Such an ascertainment, appropriately solicited by the defense with the request for review, should, instead, have been made because, as clarified by the above-mentioned ruling in United Sections of February 29, 2024, functional to establish the rules of acquisition of the messaging in criminal proceedings and, consequently, the limits of its usability for the purposes of the precautionary decision.
4. Therefore, it is necessary to annul the contested order with referral for new judgment to the Court of Bari, which, in compliance with the principles set forth, will fill the motivational gaps and, in particular, those relating to the evidentiary procedure followed by the foreign authority to acquire the information data transmitted as a result of the European order of investigation.
P.Q.M.
Annuls the order appealed and refers for new judgment to the Court of Bari, competent pursuant to Article 309, para. 7, c.p.p. Sends to the clerk's office for the fulfillments referred to in Article 94, paragraph 1-ter, disp.at. c.p.p.