Justice

Wiretapping, cap at 45 days: the Senate approves the bill

A drastic change from what has hitherto been provided for in the Code of Criminal Procedure

by Giovanni Negri

9 October 2024

Come si fa un’intercettazione

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Key points

The stages of wiretapping reform

3' min read

Coming to the finish line is the new intervention on intercessions, a subject on which the government and majority have been exercising themselves on several occasions.

Today in the Senate, with 83 yes, 49 no and one abstained, the law was approved at first reading, which for the first time provides for an express limit on the duration of listening operations, 45 days in all, which can be extended in the event of absolute indispensability justified by the emergence of specific and concrete elements, which must be the subject of express justification.

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This is a drastic change from what has hitherto been provided for in the Code of Criminal Procedure, which, in fact, does not (and did not) place any chronological limit on the duration of wiretaps: the prosecutor's decree requesting authorisation from the judge, in addition to being based on serious indications of guilt and the indispensability of the listening for the investigation, must indicate the timing and methods of the operations

The duration may not exceed 15 days but may be extended by the judge by reasoned decree for successive periods of 15 days if the conditions for the order persist (without limitation as to the number of extensions).

The law does, however, provide for an exception, recognising the specificity of mafia and terrorism proceedings: the 45-day limit will not apply to investigations into these types of offences, confirming a particularity that also has its place in the prerequisites.

For the latter, in fact, the current legislation already provides that the clues from 'serious' drop to 'insufficient' and the 'indispensability' for the investigation drops to 'necessity'.

This is a new step in the broader reform project, dismantling according to the opposition, of the regulation of wiretapping. Most recently, the Nordio law, in force since the end of August, introduced limits on publication, raised the level of guarantees for outsiders in the investigation, and prevented listening between defence counsel and suspect or defendant.

The Stages of Wiretapping Reform

But already in the summer of 2023, another package of significant changes had been approved: first of all, the extension of the more flexible requirements for mafia wiretaps to investigations on crimes committed using mafia methods, sterilising the impact of a Court of Cassation ruling, providing for a strengthening of motivations in authorisations to use trojans, restoring the old and more restrictive discipline of the usability of wiretaps in different proceedings, and obliging the prosecutor to a timely reporting of the costs of operations.

And among the asserted privacy-protecting measures, we should at least mention the bill under discussion in the House, but already approved by the Senate, to make the seizure of smartphones and computer devices less easy.

For the first signatory of the bill approved yesterday, Pierantonio Zanettin (Forza Italia), it should be recalled that 'after the 45 days, the extension of wiretapping is still allowed, but it must be specifically motivated on the basis of what has been acquired in the various investigations, and therefore it is to be avoided, as has already been mentioned by someone, indefinite extensions as a result of the so-called crutches between the public prosecutor and the judge for preliminary investigations, de facto automatic extensions, tiredly repeated, with which, from experience, the case files lying in our courts are stuffed.

Instead, we call for extensions to be justified by the emergence of specific and concrete elements, which must be the subject of express justification'.

But for the former Attorney General of Palermo, now 5 Star Senator, Roberto Scarpinato "with this reform the majority is stipulating that for very serious crimes (such as massacres, multiple homicides, feminicides, robbery, aggravated extortion, code red crimes, trafficking in persons, organ trafficking, buying and selling slaves, and many other crimes) the judiciary can investigate for two years because they are serious crimes and yet, after just 45 days, if it does not have the fortune of acquiring concrete specific elements in that handful of days, it has to pull the plug on wiretapping and continue investigations for another twenty-two months only by the same means that were used before the technological age (tailing, remote observation)'.