Seizure of phones, prosecutors in Rome exclude the judge

You do not need a judge's authorisation to proceed with the seizure of smartphones or any other device. At least for the Rome Public Prosecutor's Office, whose chief, Francesco Lo Voi, has signed a circular that, taking note of the recent contrast expressed by the Supreme Court, provides a series of operational indications to carry out the precautionary measure on information media. A subject so delicate, however, that it is the subject of a much contested bill under discussion in the Chamber (after approval by the Senate), with the drastic reform of the whole procedure, under the banner of reducing the prerogatives of the public prosecutor.

In the meantime, however, the Prosecutor's Office of Rome is moving along a different line, referring in large part, by analogy of situations, to the discipline in matters of wiretapping, with a particular focus on the guarantee measures of the confidentiality of suspects and other persons involved.

The guidelines distance themselves from the orientation of the Supreme Court of Cassation, crystallised in a judgment of a couple of months ago (Sixth Section, judgment no. 13585), according to which access to data contained in an IT device in the context of a criminal investigation must be subject, on the basis of the case law of the European Court of Justice, to the control of a judge or an independent administrative body that must be third parties with respect to the body requesting access. A control function, the Court of Cassation concluded, that cannot be exercised by the public prosecutor due to its nature as a party to the proceedings.

The guidelines, however, adhere to the opposite orientation, which excludes the need for the judge's intervention. The Public Prosecutor may therefore proceed autonomously, but, when ordering the seizure of an electronic device or a search aimed at acquiring devices, he must indicate, with adequate motivation, what are the things to be searched for inside the electronic media, what is the connection between the things to be searched for and the facts under investigation, also explaining the criteria to be used to search for the relevant material inside the device to ensure the proportionality of the measure.

The extent of the criteria and modalities of the search, the guidelines note, will depend on the type of crime and the direction of the investigation. For instance, in an investigation for stalking, it is mainly the messages sent by the suspect to the offended person that are relevant, whereas in an investigation for voluntary manslaughter with an unknown perpetrator and motive, the analysis of the devices used by the victim can only be very extensive.