Commentary on Judgment No. 15836 of 2023: Geolocation Data and the Right to Secrecy

The recent judgment No. 15836 of January 11, 2023, by the Court of Cassation sheds new light on the regulations concerning the acquisition and usability of geolocation data contained in telephone records. In particular, the Court has established that such data, obtained without the necessary authorization decree from the judicial authority, are considered to be affected by pathological inadmissibility, which raises fundamental questions about the protection of privacy and the secrecy of communications.

Regulation of Telephone Records

The primary legislative reference is Article 132, paragraph 3 of Legislative Decree No. 196 of 2003, which establishes the need for an authorization decree to acquire geolocation data. The Court has clarified that the violation of this rule entails the exclusion of the data from the trial, as it infringes upon the right to the secrecy of communications, protected by the Italian Constitution. This aspect is particularly relevant in the context of abbreviated proceedings, where the timeliness and correctness of evidence are fundamental.

• Evidence infringing the secrecy of communications
• Pathological inadmissibility of unauthorized data
• Relevance of personal data protection

Reasons for Exclusion

The Court motivated its decision by emphasizing that the acquisition of sensitive data without adequate authorization constitutes a violation of fundamental individual rights. In this regard, the judgment reiterates the importance of respecting the procedures established by law to ensure the integrity of the proceedings and the protection of the rights of the persons involved.

Telephone Records – Regulation pursuant to Article 132, paragraph 3, Legislative Decree No. 196 of 2003 – Geolocation Data – Acquisition by judicial police in the absence of an authorization decree from the judicial authority – Usability in abbreviated proceedings – Exclusion – Reasons. Regarding the acquisition of data contained in telephone records, geolocation data relating to telephone or telematic users, contained in records acquired by the judicial police in the absence of an authorization decree from the judicial authority, in violation of Article 132, paragraph 3, Legislative Decree No. 196 of June 30, 2003, are not usable in abbreviated proceedings, as they constitute evidence infringing the constitutionally protected right to the secrecy of communications and are therefore affected by pathological inadmissibility, which is not remedied by the request for the definition of the trial under alternative procedures.

Conclusions

Judgment No. 15836 of 2023 represents an important affirmation of the principle of legality and the protection of fundamental rights. It reaffirms that the protection of privacy cannot be overlooked, even within the scope of criminal investigations. For lawyers and legal professionals, it is crucial to keep this judgment in mind when assessing the admissibility of evidence, especially in a context where technologies and personal data play an increasingly central role in investigations.