Judgment No. 16347 of 2023: Messaging on Sky ECC and the Admissibility of Evidence in Criminal Proceedings

The recent judgment No. 16347 of April 5, 2023, by the Court of Cassation offers an important reflection on the validity of evidence obtained through messaging on encrypted platforms, such as Sky ECC. In particular, the Court ruled that messaging acquired through a European Investigation Order from a foreign judicial authority does not fall under the interception regulations, making it admissible under Article 234 bis of the Code of Criminal Procedure.

The Issue of Evidence Acquisition

The case concerned group chat messaging on Sky ECC, acquired following a European Investigation Order. The Court clarified that such messages constitute documentary informational data stored abroad. This aspect is crucial as it determines their admissibility in court proceedings, allowing them to be considered valid evidence despite the absence of the typical guarantees of wiretaps.

It is important to note that, according to the Court, it is irrelevant whether the messages were acquired "ex post" or in real-time; what matters is that at the time of the request, the communication flows were not active. This principle is based on the idea that individuals' privacy must be respected, even when dealing with evidence in a criminal context.

Reference Legislation and Legal Impacts

Messaging on "Sky ECC chat" - Acquisition via European Investigation Order - Admissibility under Art. 234 bis Code of Criminal Procedure - Interception regulations - Applicability - Exclusion - Reasons. Regarding means of proof, messaging in group "chats" on the "Sky ECC" system, acquired via a European Investigation Order from a foreign judicial authority that performed decryption, constitutes documentary informational data stored abroad, admissible under Art. 234 bis of the Code of Criminal Procedure, and not a communication flow, thus the interception regulations under Articles 266 and 266-bis of the Code of Criminal Procedure do not apply. (In its reasoning, the Court clarified that it is irrelevant whether the messages were acquired by the foreign judicial authority "ex post" or in real-time, as at the time of the request, the communication flows were not active).

The judgment is based on specific articles of the Code of Criminal Procedure, particularly Article 234 bis, which governs the admissibility of informational documents. Furthermore, references to Articles 266 and 266-bis highlight the distinction between evidence acquired through wiretaps and that collected through different channels. This decision could have significant repercussions on how Italian and European authorities handle digital evidence.

Conclusions

Judgment No. 16347 of 2023 represents a significant step towards understanding and applying the regulations related to digital evidence. With the increasing use of encrypted communication tools, it is essential for laws to adapt to these new realities. The orientation of the Court of Cassation offers food for thought on the need to balance the right to privacy with the effectiveness of criminal justice. It will be interesting to observe how this judgment influences future cases and the approach of authorities in collecting evidence in similar contexts.