The Pm cannot seize the smartphone

The Italian regulation on the seizure of smartphones, in fact of any electronic device, is not aligned with EU law. And it is not so in particular in allowing the operation without the pre-emptive examination of an independent judicial authority (for Community law also only administrative). Indeed, the public prosecutor, who in criminal proceedings is rather a party, cannot be considered as such. To affirm this, consciously distancing itself from previous conclusions always reached in the course of 2025, is the Cassazione with sentence no. 13585 of the Sixth Criminal Section.

The Court was faced with an application for the disapplication of domestic legislation on evidentiary seizure for conflict with Directive 2016/680, as interpreted by the EU Court of Justice in its judgment of 4 October 2024, C-548/21. In detail, the Court of Justice held that processing ofpersonal data, broadly understood, must be subject to assessment by a court or an independent administrative body. The defence argued that Article 4 of the Directive, as interpreted by the Court, is in conflict with domestic legislation that gives the public prosecutor the power to seize computer equipment during preliminary investigations (Article 253 et seq. of the Code of Criminal Procedure).

The Court of Cassation, in ruling No. 8376 at the beginning of the year, had held that the public prosecutor can be qualified as an independent administrative body, because 'a judicial authority that in the exercise of its public functions proceeds with investigations in accordance with the specific rules dictated by the legislator that are also suitable for guaranteeing the rights of the suspect'.

A position from which the same Supreme Court now disagrees. And it does so by anchoring itself in another Judgement of the Court of Justice, dated 2021, C-746/18, in which it was stated that, "in the criminal sphere, the requirement of independence implies (...) that the authority responsible for such a preventive control, on the one hand, is not involved in the conduct of the criminal investigation in question and, on the other hand, has a position of neutrality towards the parties to the criminal proceedings. That is not the case with a public prosecutor who conducts the investigation and, where appropriate, prosecutes'.

For the Court of Cassation, then, access to the data contained in a computer device for investigative purposes requiresthe control of a judge or of an independent administrative body, which, according to the case-law of the Court of Justice, must be third parties with respect to the body requesting access: 'it follows that this control function cannot be exercised by the public prosecutor, due to his nature as a party to the proceedings, regardless of his autonomous status'.