Possession of a Mobile Phone in Prison: The Court of Cassation Clarifies Article 391-ter of the Criminal Code with Judgment No. 25194/2025

The presence of mobile phones within penitentiary institutions represents a constant challenge for security and order. This issue, which undermines the effectiveness of the detention regime and facilitates illicit activities, has prompted the legislator to intervene firmly. In this context, the significant ruling of the Court of Cassation, Judgment No. 25194 of 2025, offers a clarifying and highly impactful interpretation on the application of Article 391-ter of the Criminal Code.

The Regulatory Context: Article 391-ter of the Criminal Code

Article 391-ter of the Criminal Code, introduced by Decree-Law No. 130 of 2020 and converted by Law No. 173 of 2020, aims to combat the use of unauthorized communication tools in prisons. The provision punishes the introduction, possession, reception, or procurement of mobile phones or other devices capable of communicating with the outside or recording audio/video by inmates. Its purpose is clear: to preserve security and order, preventing inmates from evading the restrictions imposed by their status.

The Case and the Legal Question

The case examined by the Supreme Court concerned G. C., accused of the offense under Article 391-ter, third paragraph, of the Criminal Code, for the undue possession of a mobile phone. The Court of Appeal of Bari had issued a decision that was subsequently appealed to the Court of Cassation. The central question was whether the mere possession of a mobile phone was sufficient to constitute the crime, particularly the aspect of 'undue reception.' It was necessary to establish whether proof of possession automatically equated to proof of reception.

And it is precisely on this point that the Court of Cassation, Sixth Criminal Section, with Judgment No. 25194 of 2025, ruled definitively, rejecting the appeal and confirming the already expressed orientation (such as No. 4189 of 2025). The legal principle is as follows:

For the purpose of constituting the crime of undue access to communication-capable devices by detained persons, provided for by Article 391-ter, third paragraph, of the Criminal Code, the unlawful possession of a mobile phone by the inmate constitutes sufficient evidence to prove the conduct of undue reception of the device, given that the perpetrator, due to their restrictive condition, could only have acquired possession through reception.

This ruling is fundamental. The Supreme Court clarifies that 'unlawful possession' of a mobile phone in prison is not merely an indication, but proof of 'undue reception.' The reasoning is logical: an inmate cannot lawfully come into possession of a mobile phone, acquiring it only through illicit reception. This principle simplifies the burden of proof for the prosecution, eliminating the need to specifically demonstrate the moment and method of reception when possession is established.

Implications of the Judgment and Prison Security

Judgment No. 25194 of 2025 has several significant implications:

• Strengthening Deterrence: The clear equation of possession with reception sends an unequivocal message to inmates: the discovery of a mobile phone leads to charges for the offense.
• Simplification of the Burden of Proof: For the prosecution, it will no longer be necessary to demonstrate the complex dynamics of how the phone came into the inmate's possession. Establishing possession is sufficient.
• Greater Protection of Internal Security: The ruling enhances security in penitentiary institutions, limiting unauthorized communications used to organize crimes or manage illicit activities.
• Promotion of a Law-Abiding Detention Environment: The judgment reaffirms the seriousness with which the legal system upholds respect for rules in prison, which is essential for the proper functioning of the penitentiary system.

This interpretation, aligned with a consolidated jurisprudential trend, underscores the gravity of the conduct and the need for a firm response to ensure the rehabilitative purposes and public safety.

Conclusions

In conclusion, Judgment No. 25194 of 2025 by the Court of Cassation is a definitive point in the interpretation of Article 391-ter, third paragraph, of the Criminal Code. It clarifies that the unlawful possession of a mobile phone by an inmate is sufficient proof of its illicit reception, given the impossibility of lawful acquisition. This decision not only simplifies the application of the provision but also strengthens the effectiveness of measures to ensure security and order in penitentiary institutions, which are fundamental for an efficient judicial system and for rehabilitation.