Communication Devices in Prison: Ruling 25746 of 2025 and the Requirement of Communication Capability

Security within correctional facilities is an absolute priority for the State, aimed at ensuring order, discipline, and the prevention of further offenses. In this context, the illicit introduction and use of communication devices by inmates is a phenomenon that legislation has sought to firmly counter. Article 391-ter of the Criminal Code is the key provision in this matter, but its practical application can raise complex questions. It is precisely on one of these aspects that the Court of Cassation, with ruling no. 25746 of July 14, 2025, has provided a clarification of fundamental importance, precisely defining the boundaries of criminally relevant conduct. This pronouncement not only sheds light on a critical point of prison law but also offers food for thought on the interpretation of criminal norms and the principle of offensiveness.

The Regulatory Framework: Art. 391-ter c.p. and the Fight Against Illicit Communications

The introduction of Article 391-ter of the Criminal Code, enacted by Decree-Law of October 21, 2020, no. 130 (converted with amendments by Law of December 18, 2020, no. 173), marked a crucial moment in the strategy to combat the use of mobile phones and other communication devices within prisons. The norm punishes anyone who unduly introduces or possesses, within a correctional facility, mobile phones or other devices capable of communication. The primary objective of this provision is clear: to prevent inmates from communicating with the outside world without authorization, thereby maintaining ties with organized crime, planning offenses, or simply evading the controls required for legal communications.

The penalty provided is severe, testifying to the gravity that the legislator attributes to such conduct, considered a direct threat to the security and rehabilitation of convicts. However, the wording "devices capable of communication" has, from the outset, generated various interpretations, especially in situations where the introduced device was not immediately operational or complete in all its parts.

Ruling 25746/2025: A Crucial Clarification by the Cassation Court

The Supreme Court, with ruling no. 25746 of 2025, found itself examining an emblematic case. The defendant, M. B. B., had been convicted for introducing a mobile phone into a correctional facility. The peculiarity of the case, however, lay in the fact that the device was missing both the SIM card and the battery. The central question that the Cassation Court was called upon to resolve was whether, under these circumstances, the offense under Article 391-ter c.p. could still be constituted.

The crime under Art. 391-ter of the Criminal Code is not constituted if a telephone device lacking a SIM card and battery is unduly introduced into a correctional facility, as the device's capability to make communications constitutes a necessary requirement of the offense.

This maxim crystallizes the principle enunciated by the Court. In simple terms, the Supreme Court has established that a mobile phone, to be considered "capable of communication" for the purposes of Article 391-ter c.p., must possess all the essential components that make it effectively operational and capable of transmitting or receiving communications. The absence of the SIM card and battery, in fact, renders the device inert, a mere shell devoid of communicative functionality. This means that the potential dangerousness of the device must be assessed concretely: it is not enough for it to be a "telephone" in a generic sense, but it must be capable, at the time of introduction or possession, of performing its communicative function.

The pronouncement aligns with a rigorous and protective interpretation of criminal law, which requires an offense to be constituted only when the incriminated conduct produces an actual injury or endangerment of the legally protected interest. In this case, the legally protected interest is the security and order of the correctional system, threatened by the actual capacity for illicit communication. An inoperative device cannot, by its nature, threaten this interest.

Practical Implications and Jurisprudential Trends

Ruling 25746 of 2025 has significant practical implications for the application of Article 391-ter c.p. and for future jurisprudence. It clarifies that the requirement of communication capability is not a mere detail but an essential constituent element of the offense. Consequently, for the offense to be constituted, it will be necessary to demonstrate that the device introduced or possessed is concretely capable of making communications. This implies that the authorities will need to ascertain not only the presence of the device but also its functionality.

This trend is in line with the principle of offensiveness, a cornerstone of our criminal system, which requires that conduct be punishable only if it is capable of harming or endangering a legally protected interest. An object that resembles a telephone but cannot communicate lacks the offensive capacity that the norm intends to prevent. The Cassation Court has previously addressed similar issues, as in the case referenced by the ruling itself (No. 42941 of 2024 Rv. 287262-01), consolidating an interpretive path that favors substance over form.

Here are the key points to consider for the constitution of the offense:

• Objective Element: Introduction or possession of a device.
• Subjective Element: Intent, i.e., the awareness and will to introduce/possess a capable device.
• Essential Requirement: The actual and concrete capability of the device to make communications. Without a SIM card and battery, this capability is excluded.

Conclusions: Legal Clarity for the Protection of Rights

Ruling no. 25746 of 2025 by the Court of Cassation represents a virtuous example of how jurisprudence can contribute to more precisely defining the boundaries of criminal norms, ensuring legal certainty and protecting the fundamental principles of our legal system. By establishing that the communication capability of a device must be concrete and not merely potential, the Supreme Court has provided a clear parameter for the application of Article 391-ter c.p. This not only protects the defendant from convictions for conduct lacking actual dangerousness but also offers legal professionals, including lawyers and judges, valuable guidance for correctly interpreting and applying such a delicate norm. In an area like the correctional system, where the balance between security and rights is constant, decisions like this strengthen confidence in justice and its ability to adapt to concrete challenges, always in compliance with constitutional principles.