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Firm profile


Due process requires transparency of evidence gathering in SKY ECC proceeding (Cass, 32915/22)

15 July 2022, Corte di Cassazione

The evidence cannot be contrary to the fundamental and inviolable principles of the Italian legal system and thus to the inviolable right of defense. 

The principle of cross-examination implies that the procedural dialectic is not only carried out with regard to the screening of the acquired material but extends to the manner of acquisition of the said material.

Evidence acquired in violation of the prohibitions established by law cannot be used in pretrial detention procedure.  

No pretrial detention can be imposed without transparency  in how Sky ECC messages have entered into investigation files. 

(unofficial automatic translation)

Corte di Cassazione

IV Criminal Section

judgment No. 32915 Year 2022

Hearing Date: 07/15/2022

On the appeal brought by:
LA born in ROME on **/1991
against the order of 03/02/2022 of the Tribunale della libertà of ROME
after the report by Justice EMANUELE DI SALVO; read/heard the conclusions of the Public Prosecutor MARIA FRANCESCA LOY who concludes for the dismissal of both appeals.
Present is attorney MEN of the Rome Bar in defense of LA
counsel present refers to the grounds of appeal and asks that they be granted
Attorney BG of the PERUGIA Bar is present in defense of LA
counsel present refers to the grounds of appeal and asks that they be granted
Court of Cassation - unofficial copy


1. LA appeals for cassation against the order in the epigraph indicated, which confirmed, in the review, the order applying the measure of custody in prison, with regard to the crime referred to in art. 74 d. P. R. 9-10-1990, n. 309 (criminal association for drug trafficking, added) .

2. The L, with a first appeal signed by the lawyer ENM, pleads violation of the law and failure to state reasons, in that the judge a quo did not provide adequate response to the defense argument inherent in the absence of the prerequisites for the registration on the crime register  of ED, determined not by specific circumstantial elements but by mere suspicions, resulting in an illegitimate authorization to carry out the activities of external monitoring of the property located in v. F No. 39 and subsequently to the wiretapping operations, since no suitable crime report had been acquired and the investigation was therefore initiated in a totally irregular manner. The external monitoring first and the wiretapping later were initiated on the basis of the findings of the April 20, 2020 report of the Carabinieri, containing mere hypotheses, and therefore the wiretapping was requested in order to research the crime report. Conversely, it is necessary that it turns out, in a highly probabilistic key, a historical fact integral to a well-defined hypothesis of crime, the ascertainment of which requires the adoption of the means of searching for evidence, on the basis of objective, solid and sure elements. On the actual consistency and unambiguity of the circumstantial basis, the review court must necessarily perform the necessary control. Conversely, in the case at hand, the authorization reproduces the prosecutor's request and is entirely apodictic, revealing the circumvention of the task of control incumbent on the g.i.p. The order of the review court also slavishly reproduces the authorizing order of the g.i.p. (Judge of investigations, added), without adding anything about the suitability of D's criminal profile, also in relation to the sighting of other people in the latter's house, to integrate the requirement of serious indicia of the commission of the crime under Article 74 drug act. Therefore, Articles 267 and 268 of the Code of Criminal Procedure, concerning the obligation to state reasons for the decree regarding the prerequisites of the operations, are violated, resulting in the unusability of the wiretap results.

2.1. The genetic order is nebulous and contradictory where it links the aggravating circumstance under Article 416 bis.1 of the Penal Code to Demce's ties with the D'A clan, allied with the historic M clan of Naples. But there are no elements for the configuration of the alleged mafia method, moreover certainly not shared, by L.

2.2.On the point of precautionary needs, the motivation is also lacking, since one of the precedents cited by the Court dates back a good 13 years and the other, inherent to the 2019 crime of evasion, is certainly not symptomatic of current danger of recidivism. Conversely, the value of the work activity performed by the defendant and duly documented is neutralized.

3. In a second appeal signed by lawyer GiB, he complains about the lack of independent evaluation of the evidence by the G.i.p., who, after enunciating the genesis and development of the investigation, devoted four pages of the order to summarizing the criteria enucleated by the jurisprudence of legitimacy for the configurability of the crime under Art. 74 I. stup, without explaining what the repercussions of these principles were on the position of the suspects, and specifically of L, nor in what respect the serious indications with regard to the crime of association, which is the only one contested against the appellant, had emerged from the investigations carried out, limiting itself to an integral copy and paste of the contents of p. 153 of the precautionary request, without providing any explanation of his own conviction and without enunciating either the facta probanda or the rules of judgment adopted. Pages 11-18 of the interlocutory order are generic and narrative and do not elaborate on the appellant's position. On pages 128 and 129, L is only mentioned as belonging to the criminal structure, without specific indication of either the reasons why he is considered as such or the role he actually played in the consortium. Pages 130 - 138 of the G.i.p.'s order pertain to the indictment under Chapter B4), which is not contested against the appellant. On pages 256 -259 of the G.i.p.'s order, on the subject of precautionary needs, the judge does not evaluate L's position at all. This prevented the examination of the elements concerning the appellant's real and effective participation in the criminal syndicate, the only hypothesis for which he is responsible. The failure to examine the content of the wiretaps between D and L and the error regarding the ownership of the car used to transport the narcotics led to erroneous conclusions.

3.2. The summary note prepared by the Carabinieri on January 24, 2022, containing the acquisition of chats exchanged through cellular apparatuses using the Sky- Ecc system, including that of the appellant, extracted following decryption of the system, could not find entry in the judgment, since the defense's request to make available the documentation delivered by Europol had been rejected by the prosecutor, who had replied that these were information exchanges between police forces of different countries, which could not be used in court. But both the activity of capturing and deciphering the telematic streams took place without any prior request from the Prosecutor's Office and in the absence of any prior direct control by the judicial authority. Erroneously, the review court invoked the alleged nature as documents under Article 234 of the Criminal Procedural Code of the written messages and multimedia files exchanged through the cellular apparatuses in question, thus excluding that the recalled messaging could fall within the notion of correspondence or that of interception, understood as the capture of ongoing communication flows. Incongruously, the review court added that since these were documents transmitted by foreign judicial authorities, the usability of them would not be conditioned on the Italian court's ascertaining their regularity, since there was a presumption of legitimacy of the activity carried out. The Public Prosecutor's Office in fact, by not making available to the parties the police documentation that had preceded the acquisition of the said material, effectively prevented an assessment of the manner in which the relevant data was acquired. Indeed, the evidence cannot be contrary to the fundamental and inviolable principles of the Italian legal system and thus to the inviolable right of defense. And thus the scrutiny of the compatibility of the process of acquiring the evidence with the right of defense was completely frustrated by the choice of the Prosecutor's Office to make available only the outcomes of the activity carried out abroad and not also the path of acquisition of that data, having also to review the suitability, necessity and proportionality of the evidence with a view to ensuring the least possible injury to fundamental rights. The defense was not placed in a position to perform this control, which is essential for the purposes of assessing the legitimacy and usability of the evidentiary data.

3.3..The statement of reasons on the subject of precautionary needs is deficient, since it fails to take into account the path of resocialization experienced by the appellant, who started a business, was hired indefinitely by a company, with the qualification of worker, took on the position of sole director of a company, which he then sold, going to live in F together with his partner and a daughter. Therefore, no opportunities to commit further crimes of the same kind can be envisaged, especially since the appellant requested to be placed under house arrest in a place at least 150 kilometers away from Rome, the territory where, according to the accusatory hypothesis, the association was rooted. What's more, these proceedings have led to the arrest of as many as 27 suspects, including the leaders and promoters of the two contending factions, so no current precautionary needs are apparent. Therefore, annulment of the appealed order is sought.


1.The analysis will start from the argument referred to in paragraph 3.2, which is well-founded and has an absorbing character. In the case at hand, it appears from the grounds of the contested order (p. 5-6) that this is messaging acquired through access to the servers of Sky ECC (a Canadian production system owned by the company Sky Global, specializing in the provision of secure communication tools and protected by a data encryption system, according to the judicial police) that stored it in memory, operated in March 2021 by Europol, which coordinated the activities of the French, Belgian and Dutch police.

 The chats were formally acquired to the file by European Investigation Order.

But, as correctly pointed out by the judge of the preliminary investigations, the need to assess, in the context of both the
main proceedings and in the incidental de libertate proceedings, that the manner of acquisition of such messaging is not contrary to mandatory rules and fundamental principles of our legal system. This implies knowledge of the manner of acquisition of said material.

In this perspective, the Defense, as it appears from the records - access to which is allowed to the court of legitimacy, since the censure is inscribed in the viewpoint outlined by Article 606, paragraph 1, lett. c), cod. proc. pen. (Sez. U., 31-10-2001, Policastro, Rv. 220092; Sez. U., No. 21 of 19-7-2012, Bell'Arte) - , on 31-1-2022, asked the prosecutor to make available to the defendants the "documentation ( including files) delivered by Europol in March 2021, following access to Sky ECC's servers, indicating how Europol itself acquired the data in question from the servers, with attached minutes; the minutes of the activities carried out by the R.O.N.I. of the Lazio Carabinieri for police purposes referred to in the declared preliminary analysis."

By order of February 1, 2022, the prosecutor rejected the petition, on the basis of the remark "the documents requested by the defense are not contained in the trial file, since they are information exchanges between police forces of different countries which, as such ( precisely for the purposes of the principle of "legality" in the acquisition of sources of evidence cited by the defense), are not procedurally usable" and considering that, "as already communicated with the notice of filing of January 24, 2022, for the acquisition of the documentation relating to the SKY ECC servers had been forwarded special 0. I.E., having No. 105/21, and its results were received on December 20, 2021 from the French judicial authority and that all documents were made available to the defenses." Thus, from this response it is not possible to understand what was the content of the aforementioned "information exchanges between police forces of different countries," and therefore through what modalities the investigative activity was carried out.

Conversely, it should be emphasized that the principle of cross-examination implies that the procedural dialectic is not only carried out with regard to the screening of the acquired material but extends to the manner of acquisition of the said material. This is functional to the control of the legitimacy of the acquisitive procedure, also in the perspective outlined by Article 191 of the Code of Criminal Procedure, which establishes the unusability of evidence acquired in violation of the prohibitions established by law, projecting its effects also in the specific context of the incidental de libertate proceedings, provided, of course, that, as in the case at hand, the actual incidence of the demonstrative element under scrutiny on the judge's conviction appears (Cass., Sec. 4, no. 18232 of 2 -5-2016, Rv. 266644). The manner of acquisition of the evidentiary material is also relevant, from the point of view of assessing the epistemic value of the latter, under the profile, as far as it pertains to the specific issue sub iudice, of the correspondence of the textuality of such messaging to the literal tenor of the messages originally sent and received as well as the utilities of the senders and recipients identified with the actual ones, which is why the issue under consideration unfolds its relevance also with respect to the phase of the capture and decryption of telematic flows. All this implies inescapably the possibility of knowing the manner in which the investigative activity carried out and the procedure for the acquisition of such messaging, in order to allow the full explication of the right of defense, through the establishment of a profitable procedural dialectic with regard to any profile of rituality, relevance, reliability and demonstrative value that may come to the fore, in the perspective of the indictment. This was not allowed to the defense counsel in the present case.

Therefore, in the case at hand, a rescindent pronouncement is required, aimed at allowing the referring judge to clarify, in the adversarial process of the parties, all the segments of the process of acquisition of the messaging, in order to proceed to the evaluations of competence with regard to the profiles just highlighted.

2. The contested order must therefore be annulled, with referral, for new judgment, to the Rome review court. Finally, the fulfillments referred to in Article 94, paragraph 1-ter, dispositions. att. cod. proc. pen. should be carried out. The rescinding nature of this decisional epilogue determines the ultroneity of the examination of the further nnotiyi of appeal.


annuls the appealed order and refers for new trial to the Rome Tribunale della libertà (review Court, added). Sends to the clerk's office for the fulfillments referred to in Article 94, paragraph 1b, disp. att. cod. proc. pen.