Commentary on Judgment No. 16343 of 2023: Precautionary Measures and Deductibility of Acts

Judgment No. 16343 of March 29, 2023, issued by the Court of Cassation, offers an important reflection on the deductibility of acts within the scope of personal precautionary measures. In particular, the Court examined the issue of the necessity of processing data transmitted via the 'encrochat' system, highlighting how such communications can influence the adoption of precautionary measures.

The Deductibility of Acts in Precautionary Measures

The concept of deductibility of acts is crucial in criminal law, as it determines the possibility of using certain information as evidence to justify precautionary measures. According to the Court, for a precautionary measure to be adopted, it is necessary for the judicial authority to be able to deduce, and not just know, the procedural significance of the circumstantial evidence. This implies that the data must already show a clear suitability to support a request for a precautionary measure.

• The necessity of an already evidential scope.
• The non-requirement of further investigations to validate the evidentiary elements.
• The separation of related criminal offenses does not need to be necessary.

Encrochat Communications and Data Acquisition

A central aspect of the judgment concerns communications originating from the 'encrochat' system. The Court held that the complexity in acquiring such data, through European investigation orders, can affect the ability to deduce procedural meaning. This leads to a reflection on the balance between the need to ensure security and the rights of the investigated parties, highlighting how jurisprudence often has to manage intricate situations.

Deductibility of Acts – Notion – Contents of so-called "encrochat" communications – Necessity of data processing – Existence – Conditions – Factual case regarding the acquisition of data transmitted via the "encrochat" system. In the context of retrodating the commencement of pre-trial detention terms, the notion of "prior deductibility," from the acts pertaining to the first precautionary order, of the circumstantial sources forming the basis of the subsequent precautionary order, requires that, at the time of the indictment in the first proceeding, the judicial authority is able to deduce, and not merely know, the specific procedural significance, understood as suitability to support a request for a precautionary measure, of the elements relating to the crime on which the adoption of the subsequent precautionary measure for a connected crime is based, whose evidentiary summary must already demonstrate its own evidential scope and not require further investigations or processing of the acquired evidentiary elements, which would necessitate the separation or distinct registration of related criminal offenses. (Factual case in which the Court deemed the order of the review tribunal to be free from censure, which had excluded, in relation to the crime under art. 74 Presidential Decree of October 9, 1990, no. 309, the existence of the hypothesis of "chain prosecution," due to the complexity of the subsequent acquisition activity, via European investigation order, of communications on the "encrochat" system, contrary to the report that signaled the existence of the association).

Conclusions

Judgment No. 16343 of 2023 represents an important step in defining the limits and possibilities of using digital communications in the context of precautionary measures. The Court emphasized the need for in-depth analysis and clear deductibility of acts, posing a crucial question regarding the complexity of modern investigations and their ability to support precautionary measures. This approach not only protects the rights of the investigated parties but also contributes to a better administration of justice.