Criminal justice

New limits on eavesdropping come into force today

Duration set at 45 days. Transitional phase to be clarified. Exceptions for the most serious offences

by Giovanni Negri

24 April 2025

INTERCETTAZIONI TELEFONICHE TELEFONO DISPOSITIVO POSTALE

3' min read

Key points

Criticality risk
When 45 days do not count
Comparison with EU countries

3' min read

Effective as of today, Thursday 24 April, the new rules on wiretapping, which, for the first time, introduce a limit on duration, set at 45 days. The provision, strongly contested by the judiciary, in particular by prosecutors, debuts without an explicit regulation of the transitional phase, thus paving the way for possible uncertainties on the application of the novelty to ongoing investigations.

Criticality Risk

A note of the criminal chambers highlighted the risk of criticality, for which, on the basis of the principle of tempus regit actum, 'it is not clear, as regards the calculation of the overall limit of 45 days and the moment of emergence of the elements justifying the continuation of the operations themselves, whether the new regulatory provision should apply also to ongoing criminal proceedings or only to those of new registration'.

The law, No. 74 of 2025, in addition to establishing the unprecedented chronological post, also admits a possible transgression, admitting the possibility of an extension in the event of absolute indispensability of operations for a longer duration, justified by the presence of specific and concrete elements. The latter must then be the subject of express justification.

When 45 days do not count

In any case, the 45-day limit does not apply for certain offences, which are in any case considered particularly serious: in particular for offences of organised crime, for those committed using mafia methods or to facilitate a mafia association, for organised activities for thetrafficking, for offences committed for the purpose of terrorism, for the kidnapping for the purpose of extortion, for threatening by telephone, for computer crimes and against the inviolability of secrets.

The 45-day limit will not apply to investigations into this type of offence, confirming a specificity that current legislation already recognises in other respects, such as with regard to the prerequisites. For the latter, in fact, it is envisaged that the clues will drop from 'serious' to 'insufficient' and the 'indispensability' for investigations will drop to 'necessity'.

The comparison with EU countries

Limits on the duration of wiretapping are also set in other European countries. The comparative survey conducted by the Senate Justice Committee, in fact, recalls that in France, after the 2016 reform, the duration cannot exceed four months and operations can continue under the same conditions of form and time, without the total duration of the interception being able to exceed one year or two years in investigations for the most serious crimes. In Germany, the order for telecommunication surveillance and acoustic surveillance outside private premises must generally be limited to a maximum of three months and may not be extended for more than three months for a maximum total of six months; acoustic surveillance of private premises, on the other hand, must generally be limited to a period of one month and may not be extended for more than one month.In Spain, the initial maximum duration of listening is three months, which may be extended for subsequent periods of equal duration up to a maximum period of eighteen months.

Today's intervention is, however, only the latest in a series regarding the regulation of listening. The whole legislature has in fact been studded with them. Gradually, measures have been introduced with the aim of protecting privacy, brakes against 'trawling' listening, with effects on other proceedings, economic reporting obligations for prosecutors on the costs of operations, strengthening ofjustifications on the use of trojans.