Supreme Court of Cassation: for the United Sections, the acquisition from cryptophones of chats from abroad is legitimate.

With two provisional notices, respectively No. 3/2024 and No. 4/2024 of 29 February 2024, the United Criminal Sections outline a set of rules for the acquisition and use of encrypted chats acquired abroad by means of a European investigation order.

In the two provisional information the SS.UU. Penal answer a number of questions:

With regard to Provisional Information No. 3/2024, it is asked whether:

1. "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 computer documents and data within the meaning of Article 234-bis of the Italian Criminal Procedure Code or of documents pursuant to Article 234 of the Italian Criminal Procedure Code, or is it subject to other rules relating to the acquisition of evidence".
2. "the aforementioned transfer must be subject to prior judicial verification of its legitimacy, in the State of issue of the European Investigation Order".
3. "the usability of the investigative results referred to in (a) above should be subject to judicial review in the State of issue of the European Investigation Order".

At the hearing of 29 February 2024, the SS.UU. adopted the following solutions: 

1. such transfer falls within the acquisition of acts of criminal proceedings which, depending on their nature, are alternatively based on Articles 78 disp. att. c.p.p., 238, 270 c.p.p. and, as such, comply with Article 6 of Directive 2014/41/EU;
2. negative; as it is within the PM's powers to take documents from other criminal proceedings;
3. affirmative; the court of the State issuing the European Investigation Order must verify respect for fundamental rights, including the right of defence and the guarantee of a fair trial.

In Provisional Information No. 4/2024, the SS.UU. Criminal responds to the following questions:

1. "Does the acquisition, by means of a European Investigation Order, of the results of interceptions ordered by a foreign judicial authority, in its own proceedings, on an encrypted computer platform and on cryptophones integrate the hypothesis governed, under national law, by Article 270 of the Code of Criminal Procedure?
2. Does the issuing of the European Investigation Order for the purposes of that transfer require the prior authorisation of the court?
3. Is the usability of the investigative findings referred to in point a) above subject to judicial review in the State in which the European Investigation Order is issued?".

The United Criminal Sections, at the outcome of the hearing on 29 February 2024, adopted the following solutions:

1. affirmative;
2. negative;
3. affirmative; the judicial authority of the State issuing the European Investigation Order must verify respect for fundamental rights, including the right of defence and the guarantee of a fair trial.