When the material acquired with a European investigation order has been the subject of a decryption activity by the judicial authority of another member state, the unencrypted computer data, obtained by the transformation of the "strings" into intelligible content by means of the special algorithm made available by the company that owns the operating system, is acquirable and usable in Italian criminal proceedings even if it is not known because it is covered by the secret in the state in acquisition how the encrypted communicative data were transformed into intelligible data: it cannot be ignored, in fact, that this activity is necessarily accomplished by making use of an algorithm and this "excludes the possibility of alteration or manipulation of the captured texts" allowing their faithful reproduction, subject to the possibility for the defense to attach elements to the contrary.
The acts carried out by the foreign state in compliance with its own laws do not appear to be in conflict with the fundamental and mandatory principles of the Italian legal system. It follows that the full usability of the material transmitted in execution of the E.O.s cannot be considered to have been obtained in violation of prohibitions established by the law of the requested state nor in violation of mandatory principles of the Italian legal system: in fact, the so-called European order of investigation active must have as its object evidence that can be acquired in the issuing State, while it is left to the executing State to actually acquire the same evidence, with the modalities and guarantees provided for in that system, being able to presume the respect by the delegated Authority, in the Union system, of the relative discipline and of the fundamental rights established by the CDFUE, as well as of the principle of proportionality, unless concrete verification of elements to the contrary is provided.
(automatic non official translation)
SUPREME COURT OF CASSATION
FOURTH CRIMINAL SECTION
hearing May 09, 2023 - filed June 5, 2023, no. 23999
Composed of the Honorable Messrs:
Dr. CIAMPI Francesco Maria - President -
Dr. VIGNALE Lucia - rel. Councilor -
Dott. ESPOSITO Aldo - Councilor -
Dr. BELLINI Ugo - Councilor -
Dr. CIRESE Marina - Councilor -
pronounced the following:
On the appeal brought by:
A.A., born in (Omissis);
against the order of 12/16/2022 of the TRIB. LIBERTY of NAPLES;
heard the report delivered by Counselor Dr. LUCIA VIGNALE;
heard the conclusions of the Public Prosecutor, in the person of Deputy Prosecutor Dr. PRATOLA GIANLUIGI, who requested the dismissal of the appeal;
Hearing of the defense attorneys present, attorney GC of the SANTA MARIA CAPUA VETERE Bar and attorney MG of the NAPOLI NORD Bar, who asked that the appeal be granted.
Unfolding of the trial.
1. By order of December 16, 2022 - filed on January 30, 2023 - the Court of Naples rejected the petition for reconsideration proposed in the interest of A.A. against the order issued on October 25, 2022 by the G.I.P. of the same Court, by which the suspect was subjected to the precautionary measure of custody in prison in relation to the crime under Art. 110 of the Criminal Code, Presidential Decree No. 309 of October 9, 1990, Article 73, paragraphs 1 and 6, Article 80, paragraph 2, (Chapter C).
2. The District Court held that it could not grant the petition in which the suspect's defense had requested the annulment of the order appealed or, in the alternative, the application of the measure of house arrest, and noted that the existence of serious indications of guilt was inferred from the findings of a complex investigation activity, which took the form of the acquisition of documentation relating to communications that took place on the encrypted messaging platforms "Encrochat" and "Sky-Ecc," the content of which was fully confirmed by the statements made by , and subjected to pre-trial detention in the same proceedings. The Tribunal found that the documentation relating to the communications that took place on the "Encrochat" and "Sky-Ecc" platforms - sent to the Italian Judicial Authority by the judicial police officers of the (Omissis) Agency (who had acquired it on behalf of the French, Dutch and Belgian judicial authorities) and then acquired by the Naples Public Prosecutor's Office through European criminal investigation orders issued pursuant to D. Lgs. June 21, 2017, No. 108 - was fully usable for the purposes of the decision and that the elements collected, combined with the statements made by the co-defendants, provided serious indications of A.A.'s full involvement in an activity aimed at exporting to Australia 600 cocaine bricks concealed inside a load of stones carried out between November 9, 2020, and January 26, 2021. He therefore found that there was a serious circumstantial framework and a concrete danger of recidivism, such that the application of the custodial measure was essential.
3. Against the aforementioned order, A.A.'s two defense attorneys, Lawyer Giovanni Cantelli and Lawyer Mario Griffo, lodged separate appeals, relying on several grounds of complaint, which are set forth below to the extent strictly necessary for the decision as provided for by Legislative Decree No. 271, Article 173, paragraph 1, of July 28, 1989.
Both appeals consist of three grounds. The arguments made are substantially overlapping, address the same issues with different accents and, therefore, can be illustrated together.
3.1. With the first ground of their respective appeals, the defenders complain of violation of the law and flaws in the reasoning with regard to the deemed usability of the investigation materials acquired through the agency (Omissis) and the European Investigation Orders (O.I.E.) addressed to the French authorities. The defense attorneys note that the evidence collected against A.A. consists almost exclusively of this material, which was allegedly used in violation of non-derogable principles of the legal system and the rules of domestic law placed to protect those principles.
The plaintiff defendants point out that the contested order could not clarify how the data transmitted by the French judicial authority was acquired and analyzed, and such information would have been necessary to verify the reliability of that data and the compliance with the mandatory principles of our legal system of the activities carried out by that judicial authority and the technicians delegated by the judges beyond the Alps to acquire and decrypt it. They argue that evidence acquired by the judicial authority of a foreign state, cannot be considered usable in the Italian legal system only because its legitimate acquisition is guaranteed by compliance with the rules of that state, and recall that Legislative Decree No. 108 of 2017 implemented Directive 2014/41/EU on European Investigation Orders by requiring compliance with the principles of the constitutional order and the Charter of Fundamental Rights of the European Union.
According to the defense, in executing the European investigation orders, the French Judicial Authority should have transmitted, together with the results of the activity carried out, also the minutes attesting to the methods of acquisition and the manner in which the data decryption and transcription operations were carried out; this did not happen since these were activities that the French State considered should be covered by secrecy. The defenders recall that, in our legal system, the right of defense also extends to the scrutiny of the modalities of acquisition of the material, and this implies that, when these modalities of acquisition are unknown, the resulting material is not usable under Article 191 of the Code of Criminal Procedure. In support of this assertion, the defense cites the judgment Sez. 4, no. 32915 of 15/07/2022, Lori and the order adopted by the Court of Rome, invested as a judge of referral of the decision on the usability of the data acquired in that proceeding.
The defense argues that, contrary to the findings of the judges of the review, in the case at hand, it cannot be said that the material in question consists of "documents" or "cold data" and was legitimately acquired pursuant to Article 234 bis of the Code of Criminal Procedure. The data provided by the French authority, in fact, would also be the result of wiretapping activities and, in compliance with the principle of cross-examination, it would have been proper to allow the defense to know whether such activities had been duly authorized and in what way in which the acquired data had been decrypted.
In the appeal signed by Mr. G, paragraph 28.2 of the Ministry of Justice Circular of October 26, 2017 (explanatory of Legislative Decree No. 108 of 2017) is referred to, which refers to the case in which the Italian judicial authority carries out wiretapping targeting apparatus or persons located on the territory of other EU states. The circular provides (in compliance with Legislative Decree No. 108 of 2017, Art. 44) that the prosecutor must inform the competent judicial authority of the relevant member state that the interception operations have been initiated and are in progress, and must interrupt them if they are activities that conflict with the domestic law of that state. The defender deduces from this provision that, in the field of international cooperation, investigative acts must be respectful not only of the law of the country that carries them out, but also of the law of the country in which the investigations are carried out, and he points out that, in the present case, this principle would not have been respected. More generally, according to the defense counsel, since with Directive 2014/41/EU a unified platform of minimum standards aimed at regulating the criteria for the admission and usability of evidence has not been created, such verification must be allowed to the defense of the suspect in compliance with the rules of the law of the state that is to use the evidence taken.
In the appeal signed by Mr. G, it is also argued that the material used for the purposes of the application of the measure would have been acquired on the basis of the activity of joint investigation teams, and it is pointed out that Directive 2014/41/EU, in Article 3, expressly excludes from the scope of the E.O. "the establishment of a joint investigation team" and "the acquisition of evidence within the framework of such a team."
In conclusion, and summarizing, the defenders argue that since the documentation on how data was acquired and decrypted was not made available to the defense, it would not be possible to know: whether it was documentary acquisitions or interception activities; whether the data was acquired in compliance with the right to confidentiality of communications; whether the data was acquired by specially established joint investigation teams; and whether Legislative Decree No. 108 of 2017 was applied outside the permitted cases. This would therefore be unusable evidence because it was taken contrary to mandatory principles of the legal system. Indeed, the following would have been violated: Article 111 of the Constitution, Article 47 of the Charter of Fundamental Rights of the European Union, and Articles 6 and 8 of the ECHR. 3.2. In the second ground of their respective appeals, the defenders of the suspect plead violation of the law and flaws in the statement of reasons for evaluating as reliable evidence against A.A. the statements made by B.B., C.C., D.D. and E.E.
Both defense counsel observe: that the declarants made statements confirming the content of a precautionary order that had been served on them; that, therefore, the concordance between the statements is not relevant data for the purposes of their reliability; that, when they made these statements, B.B., C.C. and D.D. were assisted by the same defense counsel and therefore the risk that they were "concerted statements, functional to direct the investigation and obtain easy prison benefits" was very high. The defense attorneys point out that this would have required special care in assessing the reliability of the declarants and, instead, this assessment was made by making use of stylistic formulas without providing an adequate response to the observations made by the defense.
In the appeal signed by lawyer C, it is observed that the argumentative path followed by the District Court is flawed because it takes its starting point from the statements of the co-defendants, whereas it should have preliminarily verified whether the precautionary framework, as outlined in the genetic order, was suitable to justify the application of the measure. Starting from these premises, Advocate Cantelli notes that in the genetic order, the serious circumstantial framework against A.A. was deemed to exist because he was considered the user of the PIN (Omissis), but the elements adduced in support of this assertion are far from unambiguous. Advocate Cantelli points out that the contested order considered that it was possible to supplement these elements with the statements made by D.D., but did not effectively argue about his reliability. Both defense attorneys consider significant of the declarant's unreliability the circumstance that, in the interrogations of October 25, 2022 and November 10, 2022, he did not mention A.A.'s name and this name emerged only in the interrogation of November 21, 2022. The appeals also report that D.D. claimed to have known A.A. because he had a porphyry company in (Omissis), a circumstance that today's appellant denied and the investigators did not verify. The defense attorneys note that A.A. does not appear to have ever operated a car wash in the (Omissis) area, and D.D. allegedly made untrue statements on this point as well. More generally, they argue that the statements made by the collaborators (and by D.D. in particular) are by no means intrinsically consistent, but have multiple profiles of illogicality that were brought to the attention of the Court of Review, but on which the contested order, which also attributed circumstantial value to the calls in corrections, did not rule.
3.3. With the third ground of their respective appeals, A.A.'s defense counsel argue that the review judges represented the recurrence of the need for precautionary measures without making any concrete and current verification of the suspect's ability to repeat the illegal conduct alleged against him. They complain, in particular, that the maximum measure was ordered without taking into consideration that A.A.-currently placed in a healthy social, family and work environment-is not burdened with any specific criminal record. The defenders note that A.A. is not accused of having been part of the criminal association under investigation and, according to the prosecution's hypothesis, he was involved in the export of a single consignment of cocaine bound for Australia, an involvement that would have been possible because of the contacts he had with D.D. and C.C. They infer from this that the danger of reiteration of similar crimes would be nonexistent and in any case could be concretely prevented through a less afflictive measure. They complain that the contested order did not explain why the measure of house arrest, manned by the use of an electronic bracelet and carried out in a town located in the province of L'Aquila, would not be suitable for precautionary purposes.
Reasons for the decision
1. None of the grounds of appeal deserves to be upheld.
2. It should be immediately pointed out that the judgment Sez. 4, no. 32915 of 15/07/2022, Lori (https://canestrinilex.com/en/readings/due-process-requires-transparency-of-evidence-gathering-in-sky-ecc-proceeding-cass-3291522) - which the defenders invoke in support of the exception of unusability of the material acquired through the French judicial authority - refers to a different case from the one under consideration. Indeed, a reading of the judgment shows that, in that case, the prosecutor had rejected the request to make available to the defense "the documentation handed over by (Omissis) following access to Sky-Ecc's servers with an indication of the manner in which (Omissis) itself acquired the data in question from the servers, with attached minutes of the activities carried out," arguing that these were information exchanges between police forces in different countries, which could not be used in court. Such a response was deemed detrimental to the principle of cross-examination and guarantees of defense because from it it was not possible to understand what was "the content of the aforementioned 'information exchanges between police forces of different countries'" and what had been the "manner of acquisition" of the material used for precautionary purposes; information "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." In the case at issue in the present case, on the other hand, as amply illustrated in the order under appeal and as emerges from the examination of the acts - necessary and possible because of the defect deduced (Sez. U, no. 42792 of 31/10/2001, Policastro, Rv. 220092) - the Public Prosecutor's Office made available to the defense all the documentation that had been transmitted to it by the French judicial authority; it reported that this was data independently acquired by the French judiciary within the framework of criminal proceedings opened in France; it clarified that, since this was information that the legislation of that state allows to be kept secret, the Paris Court did not transmit the documentation on how the data was acquired.
It is necessary to start from these premises in order to examine the question at issue in this appeal. Thus, it is necessary to bear in mind that - as is clear in unambiguous terms from the response provided by the prosecutors to the defense's request for access to the records - the material whose usability is disputed was not acquired on the basis of investigative activities carried out by a joint investigation team established pursuant to Legislative Decree No. 34 (implementing Council Framework Decision 2002/465/JHA of June 13, 2002), in which case Article 6 of the aforementioned decree would operate, pursuant to which "acts performed abroad by the joint investigation team have the same effect as corresponding acts performed under the provisions of the Code of Criminal Procedure and are usable under Italian law." Instead, this is material acquired pursuant to Legislative Decree No. 108 of 2017, through European investigation orders, and the entire acquisitive procedure was made available to the defense.
3. In particular, two orders of investigation (linked pursuant to Legislative Decree No. 108 of 2017, Article 34) are considered: E.O. No. 19 of March 22, 2021, and E.O. No. 34 of May 28, 2021, which the French judicial authority (Paris Tribunal) executed, transmitting the results to the Public Prosecutor's Office at the Court of Naples. Neither investigation order was issued pursuant to Legislative Decree No. 108 of 2017, Article 43, the heading of which reads, "request for interception of telecommunications with the technical assistance of the judicial authority of a member state." The Italian judicial authority, therefore, did not ask the French authority for technical assistance to carry out interception operations. Instead, it requested the "acquisition of information or evidence already in the possession of the executing authority" and the "acquisition of information contained in databases of the French police or judicial authorities" (this is verbatim the content of the two E.O.s). A reading of the orders shows that, among the materials transmitted, there could also be the results of the acquisition of data streams that took place in real time, there could also be, therefore, the results of interception activities independently ordered by the French judicial authority in accordance with the regulations in force in that state. These activities, moreover, had already been exhausted when the investigation order was issued so that, in the case at hand, Legislative Decree No. 108 of 2017, Article 43 could not apply.
That being said, it should be noted that the regulations in force in France (Art. 706-102-1 and Art. 230-1 of the French Code of Criminal Procedure) allow the prosecutor in the course of the investigation, and the investigating judge in the instruction phase, to make use of "state resources subject to national defense secrecy" to access computer data, record, store and transmit them even while they are being received and to proceed, if necessary, to decrypt them.
This is precisely what happened in the present case, so that the French judicial authority, in executing the Italian investigation order, did not provide any indication of the manner in which it had come into possession of the data. It did, however, certify - by means of a special report drawn up and signed by the judicial police officer in charge of compliance - the regularity of the transfer of those data on a non-modifiable computer medium; a medium that was sent in a sealed envelope to the Naples Public Prosecutor's Office.
In view of the foregoing, the evidentiary material of whose use the plaintiffs complain cannot be said to have been acquired in violation of prohibitions established by law. In fact, the O.I.E. sent by the Naples Public Prosecutor's Office to the Court of Paris and the entire documentation transmitted in execution of those orders, which referred to the results of investigative activities independently carried out by the transalpine judicial authority within the framework of criminal proceedings opened in France and in compliance with the regulations in force in that State, were made available to the parties.
4. As mentioned above, the investigation orders in question were issued by the Public Prosecutor's Office at the Court of Naples pursuant to Legislative Decree No. 108 of 2017 (containing the implementing rules of Directive 2014/41/EU of the European Parliament and of the Council of April 3, 2014) and, more specifically, pursuant to Article 45 of this decree (Request for documentation pertaining to telecommunications).
In implementing Directive 2014/41/EU, consistent with its provisions, the legislature has strengthened judicial cooperation in criminal matters, which is based-under Article 82(1) TFEU-on "the principle of mutual recognition of judgments and judicial decisions." This principle is based, in turn, on mutual trust as well as the relative presumption that other member states respect Union law and, in particular, the Charter of Fundamental Rights.
Consistent with these premises, Directive 2014/41 provides: in Article 2, that Member States shall execute E.O.s "on the basis of the principle of mutual recognition" and in accordance with the provisions of the Directive itself; in Article 9, that the executing authority shall recognize an E.O. transmitted in accordance with the provisions of the Directive, "without imposing any further formalities" and 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 the (...) Directive"; in Art. 11, that execution may be refused exceptionally, and following a case-by-case assessment, where there are serious reasons to believe that it would be incompatible with the fundamental rights guaranteed by the Charter.
The order must therefore relate to an investigation permitted in the issuing State, but the investigation can only be carried out according to the rules proper to the requested State "being able to presume the respect by the delegated Authority, in the Union system, of the relevant discipline and fundamental rights established by the CDFUE, as well as the principle of proportionality, unless concrete verification of elements to the contrary (Sez. 6, no. 48330 of 25/10/2022, Borrelli, Rv. 284027).
It follows: that, in the execution of a European investigation order, the concrete modalities of defensive assistance are governed, from time to time, by the law of the state in which the act is carried out; that it is up to the foreign judge to verify the correctness of the procedure and to resolve any questions regarding the conformity of the activity carried out with the mandatory principles of its domestic system; that the Italian judge is not required to ascertain the correctness of such activity and is entitled to presume it.
With specific reference to interception activities, Article 31 of Directive 2014/41/EU provides that, when the judicial authority of a member state of the Union authorizes such operations and they involve an apparatus operating on the territory of another state whose technical assistance is not necessary to continue the interception, the state that is intercepting must notify the competent authority of the state in which the interception is carried out. This notification is provided because the competent authority of the State in whose territory the interception is actually being carried out could complain about it and demand the immediate cessation of the interception activities if, in a similar domestic case, such invasive investigative activities were not permitted. Contrary to what is argued in the appeal signed by Mr. Griffo (which recalls paragraph 28.2 of the Ministry of Justice's October 26, 2017 circular and, therefore, Legislative Decree No. 108 of 2017, Article 44 with which Article 31 of the directive was implemented), this provision has the sole purpose of ensuring compliance with the principle of reciprocity with reference to investigative activities affecting the freedom and secrecy of communications and it is not clear why it should have operated in the case at hand. While it is true, in fact, that the French authorities could have acquired in real time data flows between cryptotelephones also operating in Italian territory; it is also true that, in the presence of serious indications of the crimes referred to in Presidential Decree No. 309 of 1990, Art. 73 and 74, our procedural system allows telephone and environmental wiretapping to be carried out also by means of computer captators, and that Italian legislation does not place limits on the usability of wiretap data in proceedings, such as the one at issue in this appeal, relating to crimes for which arrest in flagrante delicto is mandatory.
Therefore, the circumstance - referred to in the appeal signed by Mr. Griffo - that, having to use evidence acquired with O.I.E executed by the French judiciary having to do with data similar to those at issue here, the Berlin Land Court decided to raise a question for a preliminary ruling before the Court of Justice of the EU pursuant to Article 267 TFEU is not relevant. Indeed, the content of the questions submitted to the Court suggests that, in the case examined by the Berlin Land Court, the activities carried out by the executing state (in this case, France) had ab initio the purpose of later making the data obtained available to the investigating authorities of the issuing state (in this case, Germany). A different situation from the one that appears to have occurred in the present proceedings.
4.1. Even in the matter of international rogatory letters - which, unlike judicial cooperation, does not presuppose mutual trust and recognition - the principle of the prevalence of the lex loci over the lex fori applies, and the rules of the requesting country do not apply, but rather those in force in the state where the act is carried out (Sec. 2, no. 2173 of 22/12/2016, dep. 2017, Crupi, Rv. 269000). Even in this different matter, therefore (and even though art. 729 c.p.p. makes express reference to art. 191, paragraph 2), it has been held that the notarized authority cannot be required to apply the rules of the notarizing authority and that the prohibitions established by Italian law do not operate for acts performed by the foreign judicial authority, unless the evidence taken by that judicial authority is "in contrast with the fundamental and mandatory principles of the Italian legal system." Among these principles there is certainly also the right of defense and, however, it has been held that, due to the "prevalence of the lex soci", even in the matter of rogatory letters, the concrete modalities of defensive assistance are governed by the law of the State in which the act is carried out (Sez. 4, no. 19216 of 06/11/2019, dep. 2020, Ascone, Rv. 279246 p. 18 of the grounds). Also in this field in fact (and therefore a fortiori in the field of judicial cooperation between European Union states that share common guarantees and principles) the use of the acts transmitted by foreign judicial authorities is not conditioned to the ascertainment, by the Italian judge, of their regularity as 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 relating to compliance with the mandatory principles of the domestic system (Sez. 5, no. 45002 of 07/13/2016, Crupi, Rv. 268457; Sect. 5, no. 1405 of 11/16/2016, dep. 2017, Ruso, Rv. 269015; Sect. 1, no. 21673 of 01/22/2009, Pizzata, Rv. 243796; Sect. 2, no. 24776 of 05/18/2010, Mutari, Rv. 247750). An inevitable corollary of these principles is the affirmation that, since foreign law is a fact, it is up to the person who objects to the lack of compatibility to prove its content, and this is all the more so when it is the law of a member country of the European Union (Sec. 4, no. 19216 of 06/11/2019, cited above).
5. Moving within these hermeneutic coordinates, it should be noted that, in the case at hand, the French judiciary provided the Italian judiciary with documentation attesting to the regular transfer of data on the unalterable computer media transmitted, so that, for this part, the guarantees on the authenticity of the data were fully respected. As for the manner in which the data were initially obtained, the French judicial authority having been asked to share, with the Italian one, investigative materials that the former had independently acquired, the rights of the defense must necessarily modulate on the law of the state that executed the investigation order. The verification of the correctness of the procedure and the legitimacy of the activity carried out, in fact, must be carried out with reference to the procedural law of the requested State, and since, in the present case, this State can legitimately oppose secrecy on the point, the legitimacy of the modalities of acquisition and decryption of the data must be considered guaranteed by the control that the French judicial authority has carried out on that activity.
In the case at hand, the secrecy on the modalities of acquisition of the data was not opposed by the French state to the Italian prosecutors, but it is the French judicial authority that, in compliance with its own domestic law, considered that it could not make those data ostensible, even before the Naples Public Prosecutor's Office and (consequently) the defense counsel of the persons under investigation in the present proceedings, to the defense of the persons under investigation in France in the proceedings in relation to which the data were acquired.
The possibility, provided by French law, of maintaining secrecy about the manner in which the data were acquired, extracted and decrypted does not conflict Directive 2014/41 under which (Art. 9) the execution of an E.O. is ensured by the authority requested to do so "in the same way and in the same manner" as if the act in question "had been ordered by an authority of the executing State." No contrast, moreover, can be assumed with Directive 2012/13/EU of May 22, 2012 on the right to information in criminal proceedings. Indeed, while it is true that, pursuant to Art. 7(2) of this Directive, Member States must ensure that arrested or detained persons or their lawyers have "access to at least all evidentiary material in the possession of the competent authorities, whether for or against the suspected or accused person"; it is also true that, pursuant to paragraph 4 of the same provision, "by way of derogation from paragraphs 2 and 3, provided that this does not prejudice the right to a fair trial, access to part of the documentation relating to the investigation may be refused (... ) if such refusal is strictly necessary for the safeguarding of important public interests, such as in cases where access could jeopardize ongoing investigations, or where it could seriously threaten the internal security of the member state in which the criminal proceedings are taking place." In such cases, member states must ensure that the refusal measure is taken "by a judicial authority" or is at least subject to "judicial review," and in the present case, the decision not to allow access to the documentation in question was taken by the French judicial authority in compliance with the legislation in force in that state.
6. As mentioned above, the Naples Public Prosecutor's Office did not ask the French judicial authority to proceed with the interception of conversations or communications pursuant to Articles 266 or 266 bis of the Code of Criminal Procedure. In fact, the European investigation orders were not issued by applying Legislative Decree. No. 108 of 2017, Art. 43, but the Tribunal of Paris was asked, pursuant to Art. 45 of the same decree, to transmit "in forensic copy," the contents of communications that had already taken place, independently acquired by the French judicial authority in compliance with its domestic law. These were, therefore (as the contested order appropriately points out) data that had already been extracted from the servers of the "Encrochat" and "Sky-Ecc" platforms, stored on computer media and kept in accordance with the legislation of the foreign state.
It is not relevant here whether those data were acquired by the French judiciary ex post or in real time (thus as "cold data" or as "streams of communications"). In fact, when the Italian judiciary asked for those data and (even more so) when those data were transmitted to it, the communication flows were certainly no longer ongoing. The situation was not dissimilar, then, to that which occurs when a stream of communications, written or by images, stored in a telephone set, is acquired ex post. In these cases, jurisprudence has consistently held that the discipline of Articles 266 et seq. of the Code of Criminal Procedure cannot be applied since it is intended to operate only with reference to streams of communications in progress (Sect. 5, No. 1822 of 21/11/2017, Parodi Rv. 272319; Sect. 3, No. 29426 of 16/04/2019, Moliterno, Rv. 276358; Sect. 6, No. 22417 of 16/03/2022, Sgromo, Rv. 283319).
Recently, this Court of Legitimacy was called upon to rule on a case similar to the one at issue in this appeal, in which the French authority had been asked to transmit, after decryption, the contents of communications acquired in compliance with the domestic law of that state, and held that art. 234 bis c.p.p. (introduced by Decree Law No. 7, Art. 2, Paragraph 1-bis, of February 18, 2015, converted by Law No. 43, April 17, 2015), which allows "the acquisition of computer documents and data stored abroad, even other than those available to the public, subject to the consent, in the latter case, of the legitimate owner." In support of this interpretation, it was appropriately pointed out that, for the purposes of the application of Article 234 bis c.p.p., a document is any "communicative representation incorporated into a material base by a digital method," and a "legitimate owner" is the legal person who can legitimately dispose of the document (Sec. 1, No. 34059 of 01/07/2022, Molisso, unimmed, p. 8 of the grounds). It follows that if the judicial authority of a state of the European Union, in implementation of Directive 2014/41/EU, implements a European Investigation Order issued by the judicial authority of another member state by transmitting data that it has obtained in accordance with its own domestic legislation and has incorporated into a communicative base by digital method, there is consent on the part of the "lawful owner" - that is, "the one who lawfully retains the data" - to the acquisition of those data by the requesting judicial authority.
In support of these conclusions, it is useful to point out that - as already mentioned Italian legislation does not place limits on the usability of wiretap data in proceedings such as the one at issue in this appeal.
7. It has already been mentioned that, in the present case, the material acquired was subject to decryption. It is not known-because French law allows the state to impose secrecy on this data-how the encrypted communicative data was transformed into intelligible data. It is certain, however (it must be reiterated) that this activity was carried out on data streams already acquired by the French judicial authority. In this regard, it should be recalled that, according to a well-established jurisprudential guideline, "decryption of computer data is a distinct activity from capturing" and can also be carried out with the cooperation of the operating system manufacturer (sec.6, no. 18907 of 20/04/2021, Civale, Rv. 281819; Sec. 4, no. 49896 of 15/10/2019, Brandimarte, Rv. 277949; Sec. 3, no. 47557 of 26/09/2019, Scognamiglio, Rv. 277990). It cannot be ignored, moreover, that this activity is necessarily carried out by making use of an algorithm and this "excludes the possibility of alteration or manipulation of the captured texts" allowing their faithful reproduction (secz. 4, no. 30395 of 21/04/2022, Chianchiano, Rv.283454). As is obvious, this is without prejudice to the possibility for the defense to attach elements to the contrary, but this did not happen in the present case.
In cases similar to the one that is the subject of this appeal this Court of legitimacy has already oriented itself in the indicated direction. In fact, it has been affirmed that "on the subject of the interception of messaging exchanged with the encrypted system "Sky-Ecc" and "Encrochat," the decryption of conversations and communications is a distinct activity from the capture, such that the unencrypted computer data, obtained by the transformation of the "strings" into intelligible content through the special algorithm made available by the company owning the operating system, is acquirable under Art. 234-bis c.p.p. (Case in which the Court held legitimate, for precautionary purposes, the use of "chats" on the "Sky-Ecc" system, acquired by means of a European investigation order from foreign authorities that had carried out their decryption, as communicative representations incorporated into a material base by a digital method)" (Sez. 1, No. 6364, Oct. 13, 2022, dep. 2023, Calderon, Rv. 283998; in the same sense, Sec. 1, No. 6363, Oct. 13, 2022, dep. 2023, Minichino, not maximized).
8. It has been said that, in the case at hand, since the documentation was secreted by the French judiciary in compliance with the domestic law of that state, the information regarding the manner in which the data was acquired and decrypted was not withheld from the defense of the persons under investigation in the proceedings opened in Naples, but rather, before that, from the defense of the persons under investigation in France in the proceedings in relation to which the data was acquired. It should be emphasized here that the minutes attesting to the manner of acquisition and the manner in which the data decryption and transcription operations were carried out were not transmitted even to the Naples Public Prosecutor's Office, which, in fact, declared "no need to proceed" on the request for the ostention of documents made by the defense, attesting that it had transmitted to the G.I.P. and the Court for Review all the material acquired through the European investigation orders. The French judiciary, moreover, provided the Italian judiciary with documentation attesting to the regular transfer of the data on the unalterable computer media transmitted, so that, for this part, the guarantees on the genuineness of the data were fully respected and the datum could not be challenged, if unfavorable to the prosecution, even by the prosecutors proceeding. Therefore, the principle of equality of the parties in the trial - which has constitutional significance under Article 111 Const. - has not been violated. Nor are there any concrete violations of the principles enshrined in Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the ECHR. In fact, the acquisition of the data took place on the basis of Legislative Decree No. 108 of 2017, which implemented in domestic law Directive 2014/41/EU of April 3, 2014 "in compliance with the principles of the constitutional order and the Charter of Fundamental Rights of the European Union." It was also guaranteed that suspects and their defense counsel have access to "all evidentiary material in the possession of the competent authorities" as provided for in Article 7(2) of Directive 2012/13/EU of May 22, 2012.
Entirely irrelevant, then, is the reference to Article 8 ECHR since there is no reason to believe that, in the present case, there has been acquisition of privacy data in the absence of an order by the competent judicial authority.
As a result of the foregoing, in the present case, the acts carried out by the foreign state in compliance with its own laws do not appear to be in conflict with the fundamental and mandatory principles of the Italian legal system. It follows that the full usability of the material transmitted in execution of the E.O.s cannot be considered to have been obtained in violation of prohibitions established by the law of the requested State nor in violation of mandatory principles of the Italian legal system.
In the same sense this Court of legitimacy has already pronounced itself affirming the principle according to which "the so-called active European investigation order must have as its object evidence that can be acquired in the issuing State, while it is left to the executing State to actually acquire such evidence, with the modalities and guarantees provided for in that system, being able to presume the respect by the delegated Authority, in the Union system, of the relevant discipline and of the fundamental rights established by the CDFUE, as well as of the principle of proportionality, unless concrete verification of elements to the contrary is provided. (Case related to the acquisition of the decryption codes of the Sky ECC network "chats", present in the Eurojust "database", by the French judicial authority, which had transmitted them to the Italian one in the form of a computer document, in relation to which the Court rejected the censures of unusability, since no profiles of concrete prejudice in the modalities of data extraction were envisaged)" (Sez. 6, no. 48330 of 25/10/2022, Borrelli, already cited).
9. With the second ground of their respective appeals, A.A.'s defenders plead violation of the law and flaws in the statement of reasons for evaluating as reliable evidence against A.A. the statements made by B.B., C.C., D.D. and E.E.
9.1. This argument is of relevance primarily because, according to the defense, the circumstantial compendium on the basis of which the genetic order identified A.A. as the user of PIN (Omissis), would be insufficient in this regard and, for this, the contested order would have made ample reference to the statements made by the co-defendants confirming this attribution.
As is clear from a reading of the contested order (p. 52 et seq.), between November 9, 2020 and January 26, 2021, the user of PIN (Omissis) had contacts with the users of other PINs, identified in D.D. and F.F.. According to the judges of merit, these contacts unequivocally had as their object the shipment to Australia of a large quantity of cocaine that was concealed in a cover cargo contained in a container. A photograph of the cargo documents was sent via chat to D.D., and from this it is clear that the shipment was carried out by Word Stone Srl s. based in (Omissis). In the grounds of appeal, the defense does not dispute the circumstantial value of the data thus acquired in relation to the alleged violation of Presidential Decree No. 309 of 1990, Art. 73, however, it argues that the identification of A.A. as a user of the PIN (Omissis) would have taken place on the basis of circumstantial elements lacking the necessary character of gravity and, for this, it would have been necessary to supplement them with the accusatory statements made by the co-indicts.
A reading of the contested order belies the defense's argument. On pages 58 et seq. in fact, the review court dwelt on the reasons why the above-mentioned utility could be attributed to A.A. even before the co-defendants made statements to that effect. He reported, in particular, that on August 12, 2020, the user of that PIN sent a photograph to a chat room of which D.D. and E.E. were members in which a tractor-trailer was clearly visible and the relevant license plate numbers were legible: (Omissis) the tractor; (Omissis) the trailer. The photograph was followed by a message with which the PIN user (Omissis) advised not to run that image precisely because the vehicle's license plates were visible. The investigators ascertained: that the tractor was owned by G.G. Service Srl and the trailer owned by F.M.G. Trasporti Srl ; that A.A. is a partner in F.M.G. Trasporti and his brother H.H. is a partner in G.G. Service Srl These data, which link the PIN user to the person of A.A, are supplemented, according to the contested order, by a message sent on July 27, 2020, by D.D. offering condolences to the user of the user, whose nephew, a few days earlier, had lost his life in a traffic accident while riding a motorcycle, and by another message dated November 10, 2020, in which E.E. addresses the user of the PIN (Omissis) by calling him A.A. Indeed, it appears that I.I., son of H.H. and grandson of A.A., lost his life in a traffic accident on (Omissis) while riding a motorcycle.
The reasoning is congruous and not effectively refuted by defense arguments aimed at pointing out that other boys, grandchildren of people named A.A., could have been involved in an accident. And indeed, the user of the PIN (Omissis) had sent the accomplices photos of a tractor-trailer that could be traced back to the company in which A.A. worked, and the user of that PIN was concerned that the license plate of the vehicle was visible in the photos.
9.2. Contrary to the defense counsel's argument, therefore, the identification in A.A. of the user of the PIN in question did not occur on the basis of the statements made by B.B., C.C., D.D. and E.E., which were evaluated as additional evidence confirming the inferences of the investigations carried out.
Putting it in this perspective, the circumstance that, when they made statements against A.A., the collaborators were aware of the content of the genetic order does not appear to be diriment. As the contested order points out, in fact, the declarants did not merely confirm data that emerged from the order, but provided additional details, some of them different, due to the different roles played in the affair.
It should be recalled, then, that the review of legitimacy subsequent to the lodging of a cassation appeal in precautionary matters does not include the power to review the material and factual elements of the events under investigation, including the depth of the clues, and that of reconsidering the subjective characteristics of the suspect. Such appreciations, in fact, fall within the evaluations of the g.i.p. and the court of review, while the court of legitimacy is asked to examine the contested act in order to verify that it contains the exposition of the legally significant reasons that determined it and the absence of obvious illogicality; to verify, therefore, the congruity of the arguments with respect to the justificatory purpose of the measure (thus, among many others, Sec. 2, no. 9212 of 02/02/2017, Sansone, Rv. 269438-01).
In the case at hand, the reasoning appears adequate, consistent, and free from logical and legal errors; it therefore resists the appellants' claims. The control of legitimacy, established to guarantee the measure, in fact, does not involve the reconstructive judgment of the fact and the appreciations of the judge of merit about the reliability of the sources or the relevance and conclusiveness of the results of the evidentiary material.
10. With the third ground of their respective appeals, A.A.'s defenders complain of violation of the law and flaws in the statement of reasons in relation to the existence of precautionary requirements and the choice of measure. In this regard, it should be noted that the court inferred the concrete danger of recidivism from the extreme seriousness of the fact, the specific modalities of the conduct, symptomatic of a high level of professionalism in acting, the previous criminal record for robbery theft and weapons, and the not long elapsed time since the facts. The contested order also valued statements made by D.D. that A.A. was an old associate of his. It pointed out that these statements were corroborated by C.C. and E.E. without identifying specific reasons why they should have falsely provided converging statements to that effect. The Tribunal inferred from this, neither illogically nor contradictorily, the suspect's stable involvement in illicit activities and the concrete danger of reiteration of crimes of the same kind as the one for which he is being prosecuted.
As for the possibility of applying a less afflictive measure, the contested order pointed out: that due to the high dangerousness of the suspect, his ability to self-control cannot be relied upon, and that the measure of house arrest, even electronically manned, would not be suitable to prevent the continuation of contacts with criminal circles related to drug trafficking with which the suspect is seriously suspected of having connections. The decision, in addition to being congruently motivated, correctly applies the hermeneutic principles governing precautionary matters; it is therefore not censurable in this court of legitimacy.
11. The dismissal of the appeals is followed by an order that the appellant pay the costs of the proceedings.
Dismisses the appeal and orders the appellant to pay the court costs. Sends to the Clerk's Office for the fulfillments referred to in Article 94 disp. att. c.p.p., paragraph 1b.
Thus decided in Rome, May 9, 2023.
Filed in the Clerk's Office on June 5, 2023.