Wiretaps from abroad: approval granted for their use in court proceedings

European and Italian legislation recognises the validity of digital evidence obtained through a European Investigation Order, provided that the fundamental rights guaranteed by the Constitution and the Charter of Fundamental Rights of the European Union are respected. The Italian court presumes the lawfulness of the activities carried out by the foreign judicial authority, unless the party concerned demonstrates specific breaches of those rights. This is emphasised by the Court of Cassation in its judgement no. 33327, filed yesterday, which ruled that the defence’s arguments against the pre-trial detention order imposed on a suspect for offences of possession of weapons and handling stolen goods – aggravated by links to Mafia activity – were unfounded.

The defence specifically contested the collection, use and attribution of conversations on the encrypted ‘Sky-Ecc’ platform: the recordings were, in fact, inadmissible due to a breach of the defence’s fundamental rights, thereby placing the defence in a situation where it was objectively impossible to verify the authenticity, integrity and correct decryption of the digital data.

The Court of Cassation, drawing on the rulings of the Joint Divisions, points out, however, that, with regard to the European Investigation Order, the order issued by the public prosecutor with a view to obtaining the content of communications exchanged via encrypted mobile phones, which have already been seized and decrypted by the foreign judicial authority in criminal proceedings pending before it, need not be preceded by authorisation from an Italian judge, as a necessary condition under Article 6 of Directive 2014/41/EU, because, under national rules governing the circulation of evidence, such authorisation is not required to obtain access to the content of communications already obtained in other proceedings.

As regards the assessment of compliance with fundamental rights , the well-established principles of case law affirmed by the Court of Cassation itself are central to this matter; these principles concern the relative presumption of compliance with fundamental rights in the activities carried out by foreign judicial authorities, by virtue of the judicial cooperation arrangements enshrined in European Union legislation: ‘The principle of the presumption of lawfulness of activities carried out abroad for the purposes the gathering of evidence is, in fact, consistently and generally affirmed by the case law of the Court of Cassation’.

The Italian judge is therefore required to assess, in order to ensure the admissibility of the investigative documents obtained via a European Investigation Order, ‘not their compliance with national rules, given that delegated investigative activities are subject to lex loci, but only compliance with mandatory rules and the fundamental principles of the legal system, without prejudice to the presumption of lawfulness of the activity carried out by the foreign court with regard to verifying the correctness of the procedure and, on the basis of the statements made by the Joint Divisions, the burden of proof, resting on the defence, to adduce circumstances from which a violation of the rights enshrined in the Constitution and the Charter of Fundamental Rights of the European Union may be inferred’.