SUPREME COURT OF CASSATION
SECTION VI CRIMINAL
Judgment,
(date of hearing 09/07/2024)
20/09/2024, no. 35396
Dr. DE AMICIS Gaetano - President
Dr. VIGNA Maria Sabina - Rapporteur
pronounced the following
JUDGMENT
On the appeal brought by:
A.A. born in M on (Omissis)
against the order of 02/08/2023 of the Court of Review of Reggio Calabria.
Having regard to the acts, the order complained of and the appeal;
Hearing the report delivered by Councilor Maria Sabina Vigna;
heard the conclusions of the Public Prosecutor, in the person of Deputy Prosecutor General Alessandro Cimmino, who requested the dismissal of the appeal;
read the additional grounds and reply brief filed by the defense.
Facts of the case
1. With the order under appeal, the Court of Reggio Calabria rejected the petition for reconsideration of A.A., to whom the Judge of Preliminary Investigations had applied the measure of house arrest for the crime under Article 74 of Presidential Decree No. 309 of October 8, 199U and 416-bis. 1 of the Italian Criminal Code, because he associated himself with B.B., C.C., D.D., E.E. and others for the purpose of committing an indeterminate number of offenses relating to the importation, transportation, possession and subsequent transfer to third parties of narcotics.
Specifically, the suspect, operating in the German articulation of the association, together with F.F., G.G., H.H. and I.I., assisted the other members of the association in marketing the narcotics, as well as made his own car available for travel and rented others.
The review court points out that it had been established that, through bribed port operators in the ports of G, A, and R, the organization recovered cocaine shipments arriving by sea from South America, totaling 4,046 kilograms of cocaine; this was from May 2020 to May 2021.
2. A.A. appeals against the order in cassation, relying on the grounds summarized below, in accordance with the provisions of Art. 173 disp. att. cod. proc. penale.
2.1. Infringement of the law, in relation to Article 416-bis bcod. penale, for lack of the constitutive element of affectio societatis, A.A. having limited himself to accompanying members of the criminal syndicate by car on some trips, without, moreover, taking part in buying and selling lots of narcotics or picking up, during such trips, a crypto-phone functional to the activity of the mafia organization dedicated to drug trafficking.
he evidence gathered would only prove that J.J. and the appellant made a trip from Germany to S, but not also that they committed crimes. There is substantial misrepresentation of the evidence.
The appellant, moreover, is not implicated in any crime purpose.
The information concerning the assignment allegedly given by J.J. to A.A. to find buyers of narcotics in Germany would be derived from the contents of a wiretap on Belgian territory, as part of a wiretapping activity with respect to which no review of legitimacy was carried out by the competent court, given the failure to mention the authorization orders and their contents.
Furthermore, the defense notes that the conduct was carried out on Belgian territory; that the operations of interception of communications carried out inside J.J.'s car were not requested by the Italian authority from the Belgian authority; that the results of these operations acquired by the Belgian authority were not requested by the Italian judicial authority in the manner prescribed by law; that, therefore, the acquisition and transmission of these elements would not have taken place in a ritual manner and that, therefore, the data are unusable.
In conclusion, it is alleged that the decree validating the wiretaps ordered as a matter of urgency by the Public Prosecutor on February 4, 2020 in relation to A.A.'s utilities is null and void; that the extension decrees are null and void; and that the wiretaps are unusable.
Furthermore, it is complained that the motivation of the decree would be entirely based on the investigative outcomes resulting from the activity carried out by undercover agents whose identity was never disclosed. The non-disclosure of the records would not allow the legitimacy of the activity performed by the undercover agent and, in particular, the existence of the authorization to be ascertained.
3. The defense has filed additional grounds, which, move from the reading of ruling No. 44154/2023 of 26/10/2023 of this Section/ and the systematic reconstruction contained therein, censuring
-the failure to provide for the appealability of the investigation order;
- the presumption of legitimacy of acts performed abroad, the same having to be, from time to time, verified by paying attention to the content of the order issued to request and justify the performance of the ac.
-the impossibility for the private party to infer the illegitimacy of the o.e.i. before the Italian court.
Grounds for the decision
1.11 appeal is, on the whole, unfounded.
2.The first ground on the existence of affectio societatis cannot be upheld.
2.1. The Court of Review, with congruous and punctual reasoning, recalls all the serious indicia of guilt, from which this constituent element of the crime can be easily inferred. In particular:
- the intercepted wiretaps between J.J. and the suspect, who was instructed by the former to find buyers in Germany of “Moroccan” hashish, of which he also had a sample viewed;
- the interception in the course of which A.A. warned co-defendant H.H. that he had been subjected to a police check while returning to Germany from Belgium;
-the interception in the course of which A.A. requested a meeting, together with H.H., with a possible buyer, one K.K;
-the interception during which A.A. confided to his girlfriend that C.C., who was arriving in Germany, had asked him not to take his cell phone with him.
The contested order also highlights, 1) the appellant's movements to Belgium and S. Luca, where he met with co-conspirators and acted as a driver for the L.L. brothers; 2) his presence in A, in the company of M.M., coinciding with the arrival of 930 kilograms of cocaine; and 3) the circumstance that A.A. had placed his car at the disposal of H.H. and that the latter left for M in order to pick up J.J. and C.C.
Finally, the review court stressed that A.A.'s membership in the association is also derived from the participation offered by the appellant in the trip to C, together with other members of the German articulation, aimed at picking up the encrypted telephone that his associate H.H. would shortly thereafter use for interlocutions with associates during the trip to South America. The Court of Review has, in conclusion, exhaustively, logically and rationally argued (with reasoning undoubtedly not affected by flaws detectable here) the reasons for its conviction with regard to the fact that A.A. was a person of extreme trust of the sodality and that there were serious indications of guilt of the crime under Article 74 Presidential Decree No. 309 of October 8, 1990.
Lastly, it must be stressed that, in any case, the misrepresentations reported by the appellant are nothing more than an 'inadmissible reinterpretation of the circumstantial compendium.
3. The second ground is unfounded.
In the contested order, it is punctually explained that the information underlying the order is taken from the R.O.S. report of the L Carabinieri, as part of the related investigations developed (in Joint Investigation teams) in B and L.
It should be noted that Joint Investigation Teams (JITs) are an investigative tool that allows authorities from different states to jointly carry out transnational investigative activities, sharing the results acquired. In the European framework, the possibility of setting up joint investigation teams is part of the so-called horizontal judicial and police cooperation, i.e., that between the national authorities of member countries, representing a form of assistance of an operational and not “rogatorial” nature, aimed at the repression of criminal phenomena involving the territorial scope of two or more states. That is, it is the identification of a specific and unique common investigative space, in which the members of the team operate directly and in real time, carrying out all the acts and operations necessary for the purpose for which it was constituted and in all the territories of the States that are part of it, without having to resort to other forms of judicial assistance and applying, from time to time, the procedural rules according to the so-called criterion of the lex loci.
Correctly, therefore, to acquire wiretaps with German telephones, the o.e.i. was not used.
4. The additional grounds must be examined in light of the principles recently affirmed by the United Sections of this Court, which have ruled on the questions of law raised by the appellant, (Sect. U, No. 23756 of 29/02/2024, Giorgi; Sect. U, No. 23755 of 29/02/2024, Gjuzi).
Also in the cases submitted to the United Sections, the circumstantial compendium underlying the personal precautionary measures consisted mainly of elements acquired through o.e.i. by the Italian judicial authority (in this case, the Public Prosecutor's Office) and specifically of communications exchanged on group chat through an encrypted system, and already available to the French judicial authority.
4.1. The United Sections, after explaining the reasons why in the cases examined, similar to the one relevant here, reference cannot be made, in order to justify the acquisition of the chats, to Article 234-bis cod. proc. pen. - which is applicable in the different case of the direct acquisition of computer documents and data, stored abroad, if necessary with the consent of the holder, as, moreover, already noted in some pronouncements, which had nevertheless excluded the existence of causes of unusability (in this sense Sez. 6, no. 46833 of 26/10/2023, Bruzzaniti, Rv. 285543, Sez. 6, no. 48838 of 11/10/2023, Brunello, Rv. 285599, Sez. 6, no. 46482 of 27/09/2023, Bruzzaniti, Rv. 285363) -, ha/w recognized the substantial legitimacy of the European investigation orders: however one wishes to qualify the investigation activity independently carried out in France -reducible or not to wiretapping activity-, it was in this regard stressed that: 1) it was a matter of acquiring acts already in the availability of the French Prosecutor's Office; 2) in this perspective, the requirement of admissibility in a similar domestic case, as per Art. 6, par. 1, lett. b) of Directive 2014/41/EU, was in place, the instruments ensuring the circularity of evidence coming into play, even in the case of wiretapping, as provided for by Art. 270 cod. proc. penal, in any case not involving the authorizing intervention of the judge, it being understood that organized crime offenses were relevant; 3) there was the requirement of proportionality in relation to the targeted framework of investigation; 4) there were no apparent violations of fundamental rights during the execution of the European investigation orders, in any case not specifically attached and substantiated by the interested party; 5) the availability of the algorithm used for the decryption was not necessary for the usability of the evidentiary data, incident to the reliability of the data rather than its usability, it being understood that on a technical level only the correct algorithm would have ensured a reliable result in the absence of specific allegation of elements that could cast doubt on the real correspondence of the encrypted data to that resulting from the decryption; 6) the competence of the judge to adopt the European Investigation Order could not have been envisaged, not even in the perspective that correspondence came to the fore, the order of the Public Prosecutor being sufficient for this purpose as well, unlike what, in the wake of arrests of the Court of Justice of the European Union, is now provided for the purposes of the acquisition of printouts bearing external traffic and location data, by Art. 132
Legislative Decree No. 196 of June 30, 2003, which refers to the acquisition directly from an operator of telephone and telematic services and not to the acquisition of data already at the disposal of another Judicial Authority; 7) it is the burden on the party that deduces a profile of unusability, to attach documentation in this regard, all the more so if this is done in the court of legitimacy, where the burden of allegation and evidence of elements such as to prove flaws and deficiencies from which the unusability of elements acquired derives.
4.2. Having declined the aforementioned principles in relation to the case at hand, the additional grounds referred to above cannot lead to the annulment of the contested order. Indeed, the procedure followed for the acquisition by means of o.e.i. of the encrypted chats used against the appellant - entirely identical to that scrutinized by the United Sections - is legitimate, concerning crimes for which interception may be ordered in the domestic system pursuant to Article 266 of the Code of Criminal Procedure, nor has the appellant pointed out specific and concrete violations of fundamental rights capable of integrating the invalidity of the evidence acquired, and the acquisition of the chats transmitted by such o.i.e. being entirely legitimate.
5. In conclusion, the appeal must be dismissed, with the appellant ordered to pay the costs of the proceedings.
P.Q.M. (for this reasons)
Dismisses the appeal and orders the appellant to pay the court costs.
Conclusion
Thus decided at Rome, July 9, 2024.
Filed at the clerk's office on September 20, 2024.