Evidentiary seizure of computer equipment – First the verification of the computer system and then, if anything, the seizure

The Italian Supreme Court, with judgment no. 37639/2019 on the subject of probative seizure of computer material, clarifies that the hardware must first be subjected to a search aimed at identifying only the digital material of interest for the investigations, since an indiscriminate acquisition of the entire content of a computer cannot be considered legitimate computer system.

The obvious consequence is that the acquisition of electronic and IT data can only be ordered after the "interesting" digital documents for the investigations have been identified and the pertinence link with the crime being prosecuted has been clarified.

According to the sentence under comment, what must be explained by the prosecuting judicial authority is the abstract configurability of the hypothesized crime in relation to the adequacy of the elements represented, certainly not in the perspective of a judgment on the merits of the concrete validity of the accusation, but with exclusive reference to the suitability of the elements on which the crime report is based in order to clarify the reason why it is useful to carry out further investigations to acquire certain or further evidence of the fact, not otherwise available without stealing the property from the suspect or the transfer of it to the availability of the judicial authority (Joint Chambers., n.23 of 11/20/1996, Bassi, Rv. 206657; among many others, Chamber 5, n. 13594 of 02/22/2015 , Gattuso, Rv. 262898, according to which the obligation to state reasons which must support, under penalty of nullity, the decree of probative seizure in relation to the reason for which the goods can be considered the body of the crime or things related to it pertinent and to the concrete probative purpose pursued, with the affixing of the real bond, must be modulated by the public prosecutor in relation to the hypothesized fact, to the type of offense to which the fact is concretely attributed, to the relationship that the things present with the offence, as well as the nature of the property to be seized; Chamber 2, no. 25320 of 05/05/2016, Bulgarella, Rv. 267007).

Although it should not result in a review of the concrete foundation of the accusation, what must be verified is the concrete possibility of subsuming the fact in a specific hypothesis of crime, since the mere "postulation" of its existence by the Public Prosecutor cannot be considered sufficient. that is, the exploratory perspective of an investigation with respect to a news of a crime.

The Judicial Authority, taking into account the state of the proceedings, must represent the concrete procedural findings and the situation emerging from the elements provided by the parties, explaining the congruence of the proposed crime hypothesis with respect to the facts to be ascertained (Chamber 4, no. 15448 of 03/14/2012, Rv. 253508; Chamber 6, n. 45591 of 10/24/2013, Rv. 257816; Constitutional Court, order n. 153 of 2007).