Messages acquired by Judicial Police on cell phone are unusable

The Court of Cassazione, Criminal Section VI, with ruling no. 39548/24 criticized the decision of the territorial Court that had illegitimately rejected the exception of inusability of the messages acquired by the Judicial Police from the mobile phone, since it was based on the erroneous assumption that the messages sent or received via WhatsApp have the nature of documents and can, therefore, be acquired through a mere photographic reproduction.

On this point, the Supreme Court recalled that this approach was definitively overcome by the Supreme Court Judges following the ruling of the Constitutional Court no. 170 of 2023 in which the Judge of the Laws, although ruling in the context of a conflict of attribution between powers of the State, had clarified that "the exchange of electronic messages - e-mail, SMS, WhatsApp and similar - represents, in itself, a form of correspondence", and this even in the case in which they are messages already received and read by the recipient, with the sole exception that, due to the time that has passed, the message has not lost all character of topicality, in relation to the interest in its confidentiality, transforming into a mere "historical" document.

The decision observes that this updating of the notion of correspondence with respect to the new means of communication has led to the extension also to electronic messages of the sphere of protection provided for by art. 15 of the Constitution, which ensures all members of society the freedom and secrecy "of correspondence and of any other form of communication", allowing its limitation "only by reasoned act of the judicial authority with the guarantees established by law".

Following the clear indications of the Constitutional Court, the Court of Cassazione abandoned the orientation cited in the contested ruling, stating that emails, WhatsApp messages and SMS stored in the memory of an electronic device constitute correspondence even after receipt by the recipient, at least until, due to the passage of time or other causes, they have lost all character of topicality, in relation to the interest in its confidentiality, transforming into a mere "historical" document, so that, until that moment, their acquisition must occur according to the forms provided for by art. 254 of the Code of Criminal Procedure for the seizure of correspondence.

From this it follows that its acquisition in the criminal proceedings must necessarily occur on the basis of a provision of the judicial authority, or, as regards the seizure in question, with a reasoned decree of the public prosecutor.

The Court recalls that a similar conclusion had already been shared by the United Sections, which, in addition to embracing the indications of the Constitutional Court on the notion of correspondence, had clarified that the protection provided for by art. 15 of the Constitution does not require that a judicial order be required to limit the freedom and secrecy of correspondence and, therefore, to acquire it for criminal proceedings.

The Court of Cassazione recalled that this also emerges from the case law of the European Court of Justice, according to which the expression "judicial authority" indicates a category which includes both the judge and the public prosecutor.

This conclusion, the United Chambers continue, is confirmed by the procedural code and, in particular, by art. 254 of the penal procedure code, which provides that the seizure of correspondence is ordered by the "judicial authority" without any reference to the need for the intervention of the judge, which is instead required for the purposes of seizure in the offices of the defenders by art. 103, paragraph 4, of the penal procedure code.