Unauthorized access to communication devices: comment on judgment no. 4189 of 2025

Judgment no. 4189 of January 14, 2025, issued by the Court of Cassation, represents an important reference point in criminal law concerning unauthorized access to communication devices within penitentiary institutions. In this decision, the Court clarified the necessary conditions for the crime of unauthorized access to be constituted, providing an interpretation that deserves careful analysis.

The specific case and the Court's decision

In the specific case, the inmate M. V. was accused of receiving a mobile phone illegally introduced into the penitentiary. The Court ruled that the crime of unauthorized access to communication devices cannot be constituted if the inmate has not previously agreed with the person who introduced the device. This means that the mere receipt of a telephone device, without an agreement with the introducer, does not in itself constitute the specific crime.

Crime of unauthorized access to communication-capable devices by inmates - Improper introduction into a penitentiary institution of a telephone device or other communication-capable device in the absence of prior agreement with the inmate - Constitutability of the crime - Exclusion - Receiving stolen goods - Possibility - Existence - Reasons. The crime of unauthorized access to communication-capable devices by an inmate is not constituted if the inmate receives the telephone device or other communication-capable device without having previously agreed with the person who abusively introduced it into the penitentiary institution, although the act of receiving, due to the reservation clause provided for by art. 391-ter, third paragraph of the Criminal Code, may constitute the more serious crime of receiving stolen goods, as the received item is the proceeds of the aforementioned crime of unauthorized access to communication-functional devices.

Legal implications of the judgment

The decision of the Court of Cassation offers relevant insights for the interpretation of criminal law provisions. In particular, Article 391-ter of the Criminal Code, which concerns receiving stolen goods, is cited to highlight that the inmate's act of receiving the device could constitute this crime. This aspect is crucial, as it implies that, even in the absence of an agreement, receiving stolen property can lead to criminal liability.

• The constitutability of the crime of unauthorized access is excluded in the absence of an agreement.
• The receipt of the device may constitute the crime of receiving stolen goods.
• The received item is considered the proceeds of another crime.

Conclusions

In summary, judgment no. 4189 of 2025 offers an important clarification on the distinction between different crimes related to access to communication devices by inmates. The Court has drawn a clear line between the crime of unauthorized access and receiving stolen goods, emphasizing the importance of prior agreement. This decision could have significant repercussions in the management of crimes within the penitentiary system and in ensuring security within prison facilities.