Wiretaps: Commentary on Judgment No. 26297 of 2024

The recent judgment No. 26297 of May 15, 2024, issued by the Court of Cassation, offers an important reflection on the discipline of wiretaps and the crucial role of the authorizing decrees that legitimize their use. This decision is part of a complex legal context, where the protection of fundamental rights, such as the right to defense, intertwines with the investigative needs of the State.

Context of the Judgment

The Court examined a case where the public prosecutor had not attached the authorizing decrees relating to the wiretaps to the request for the application of precautionary measures. Following an appeal against the coercive measure, the review court had to assess the effectiveness of the wiretaps themselves. The Court ruled that the failure to attach the decrees does not automatically render the precautionary measure ineffective, contrary to what some previous interpretations suggested.

Meaning of the Judgment's Maxim

Failure of the public prosecutor to attach the authorizing decrees - Failure to transmit them to the review court - Ineffectiveness of the precautionary measure ordered - Exclusion - Unusability - Exclusion - Obligation for the review court to acquire the decrees ex officio - Existence - Case law. In the context of wiretaps, the failure of the public prosecutor to attach the relevant authorizing decrees to the request for the application of a precautionary measure, and the subsequent failure to transmit them to the review court, following an appeal against the coercive measure, does not lead to the ineffectiveness of the measure pursuant to art. 309, paragraph 10, of the Code of Criminal Procedure, nor to the unusability of the interceptions, which instead results from the adoption of decrees outside the cases permitted by law or in violation of the provisions of arts. 267 and 268 of the Code of Criminal Procedure, however, obliging the court to acquire these orders to guarantee the right of defense of the party who requested them for the purpose of verifying their existence and lawful adoption. (Case law in which the Court annulled the order of the review court that had failed to acquire the authorizing decrees on which the initial measure and the rejection of the appeal were based, on the erroneous finding of irrelevance of the defense argument, due to the public prosecutor having made available only the IT supports of the interceptions).

This passage highlights the court's obligation to acquire the authorizing decrees to guarantee the right of defense, even in the absence of their attachment by the public prosecutor. It is essential for the court to verify the existence and legitimacy of these decrees, as their absence does not automatically imply the unusability of the wiretaps, but requires a more in-depth review.

Conclusions

In conclusion, judgment No. 26297 of 2024 represents a significant step in protecting the rights of defendants and in managing wiretaps. It clarifies that, although the absence of authorizing decrees may seem like a procedural violation, it does not automatically render precautionary measures ineffective, provided that the court can verify their legitimacy. It is an important reminder of the importance of formality and substance in criminal law, which must always ensure a balance between investigative needs and the fundamental rights of individuals.