Wiretaps and Precautionary Measures: Nullity for Failure to Make Available. Commentary on Ruling No. 27865 of 2025

In the complex landscape of criminal law, telephone and environmental wiretaps represent an investigative tool of crucial importance, often decisive for the outcome of a proceeding. However, their legitimacy and usability are strictly bound by compliance with rigorous procedural guarantees, aimed at protecting the fundamental rights of the investigated or accused person. In this context, the recent and significant ruling of the Court of Cassation, Ruling No. 27865 of June 25, 2025, sheds light on the consequences of the defense counsel not being provided with the wiretap recordings that form the basis of a personal precautionary measure.

The Supreme Court's decision is of particular interest as it reiterates the importance of the right to defense and the necessity for defense counsel to have full access to the evidentiary elements that justify a restriction of personal liberty. Let's examine the key points of this ruling and its practical implications.

The Context of Precautionary Measures and the Right to Defense

Personal precautionary measures, such as detention in prison or house arrest, are liberty-restricting measures that can only be adopted in the presence of serious indications of guilt and specific precautionary needs. Their application is a delicate moment in the criminal proceedings, where the right to defense, enshrined in Article 24 of the Italian Constitution and Article 6 of the European Convention on Human Rights (ECHR), must be fully guaranteed. This implies that defense counsel must have the opportunity to know and challenge all the elements on which the measure is based, including wiretaps.

Article 268 of the Code of Criminal Procedure (c.p.p.) governs the procedures for filing and accessing wiretaps, stipulating that defense counsel has the right to examine the transcripts and listen to the recordings. This access is fundamental to enabling effective defense and verifying the correctness and relevance of the acquired evidentiary elements.

The Cassation's Ruling: Nullity and Burden of Proof

Ruling No. 27865 of 2025 addresses precisely the issue of the wiretap recordings not being made available to defense counsel. The Supreme Court, with its ruling, has enunciated a clear and binding principle:

In matters of personal precautionary measures, the failure to make available to defense counsel, who is authorized to acquire the wiretap recordings forming the basis of the custodial measure, the relevant media, where defense counsel has documented their diligent efforts and stated they could not locate them, without this circumstance being disproven, constitutes a general nullity of intermediate regime, pursuant to Articles 178, paragraph 1, letter c), and 180 of the Code of Criminal Procedure. (Case in which defense counsel had stated they had gone to the offices of the judicial police delegated to execute the authorization order multiple times, without finding the media, and finally, the request to attest to the non-delivery, made via certified email to the public prosecutor's office and the wiretap archive, remained unanswered).

This ruling is of paramount importance. The Court establishes that the failure to deliver the wiretap media to defense counsel, if defense counsel has been authorized to acquire them, constitutes a general nullity of intermediate regime. But what does this mean exactly?

• General Nullity of Intermediate Regime: This is a category of nullities provided for by Article 178, paragraph 1, letter c) of the c.p.p., which relate to the intervention, assistance, and representation of the defendant and other private parties. Nullities of intermediate regime, governed by Article 180 c.p.p., must be raised within specific deadlines (before the deliberation of the first-instance judgment or, if they occur during the trial, no later than the deliberation of the judgment of the subsequent degree), otherwise they are cured.
• Defense's Burden of Proof: The ruling clarifies that it is incumbent upon defense counsel to demonstrate their "diligent efforts" in attempting to acquire the media and to state their inability to locate them. This means that a simple assertion is not enough; it is necessary to document the attempts made (e.g., formal requests, visits to offices).
• Failure to Disprove: For the nullity to be established, the circumstance stated by defense counsel (i.e., not being able to locate the media despite diligent efforts) must not have been disproven by the authorities.

In the specific case, the defense counsel for the defendant A. D. P. had documented that they had gone to the judicial police offices multiple times without finding the media and that a subsequent formal request (PEC) to attest to the non-delivery had remained unanswered. This diligent conduct and the lack of disproof allowed the Cassation to annul and remand the decision of the Tribunal of Liberty of Rome.

Practical Implications and Protection of Rights

The Cassation's decision strengthens defense guarantees in criminal proceedings, putting a brake on any inertia or delays in making crucial evidentiary material available. For defense counsel, the ruling emphasizes the importance of:

• Being proactive and documenting every attempt to access documents, particularly wiretap recordings.
• Formalizing requests for access and any disputes regarding the unavailability of the media.
• Promptly raising the nullity, following the timelines provided for by Article 180 c.p.p.

For the prosecution and investigative bodies, the ruling serves as a warning about the need to ensure rapid and complete access to documents by the defense, especially when precautionary measures affecting personal liberty are involved. Violation of this principle can have significant consequences on the entire proceeding, up to the annulment of the measures.

Conclusions

Ruling No. 27865 of 2025 by the Court of Cassation represents a fundamental pillar in the protection of the right to defense in the context of precautionary measures and wiretaps. It strongly reiterates that access to wiretap media is not a mere formality but an essential condition for a fair trial and the full exercise of the right to defense. The ruling clarifies the burden of proof on defense counsel but, at the same time, sanctions the authorities' lack of cooperation with nullity, if proof of the material's availability is not provided. This balance is crucial to ensure that the pursuit of truth always takes place with full respect for constitutional and conventional guarantees.