Cassation

Smartphone, the third party may also challenge the seizure

Challenge admissible even by non-owners. But it is not enough to argue that the mobile phone contains sensitive data in the abstract

by Giovanni Negri

9 May 2026

2' min read

Translated by AI

Versione italiana

Key points

Opposition to the taking of evidence
Seizure and sensitive data

2' min read

Translated by AI

Versione italiana

Even someone who is not the owner of the smartphone may lodge appeal against seizure by the judicial authority. However, the commonplace that the mobile phone makes the repository of important segments of the owner's life does not in itself legitimise a challenge. In two separate recent judgments, No. 15010 and No. 15894, both by the Third Section, the Supreme Court clarified the legitimacy of challenging the seizure of a mobile phone.

Opposition to the taking of evidence

In its first pronouncement, the Court of Cassation emphasised that in the case of probatory seizure of an asset, such as a mobile phone, the interest of the appellant does not reside solely in the removal of the real lien, resulting in the restitution of the property itself, but also in opposing the acquisition of evidence, which can be extracted from it, such as the data contained in the mobile phone that can be used, against the appellant, in the trial on the merits.

The essential datum is thus constituted, for the Court, by the fact that whoever appeals aspires to the seizure, as an outcome from which derives, also for him, a concrete utility, also in the form of the elimination of a prejudice, referable "to a subjective legal situation protected and recognised by the legal system and not only subjectively assessed as such in a factual way, perhaps in relation to a range of situations involving family relationships, affective and economic collaterals, which do not give rise to specific recognisable legal positions directly affected by the constraint of non-liability".

The appeal by the co-defendants is then admissible because, as emerges from the seizure decree itself, the telephone was considered indispensable evidence for the ascertainment of facts, in confirming the identification of certain suspects and highlighting their role in a criminal association context.

Security and sensitive data

In its second judgment, the Court of Cassation highlights howthe owner of sensitive data contained in computer or telematic documents who intends to challenge a seizure order is always obliged to attach to the appeal a concrete and current interest in their exclusive availability.

To hold, the Court states, that in the event of the seizure of a computer tool, intended by its very nature to collect information technology data of a personal and professional nature (and the judgment exemplifies this in audio-visual material, location data, e-mail, passwords, telephone traffic data, messaging data) to justify the challenge would be excessive.

For the Court of Cassation, in fact, the consequence would be to oblige the public prosecutor, for the very legitimacy of the measure, to a constraint of motivation so stringent as to be then inexcusable in practice, with an excessive compression of the investigative activity. In fact, it should be recalled the "peculiar connotation of computer documents, which, in the generality of cases, require, both on account of their content, often promiscuous, and of their bulk, technical assessments to extrapolate and select what is useful for the investigation".