Supreme Court of Cassazione: the limits on the use of interceptions in proceedings registered by 31 August 2020

The Italian Supreme Court of Cassazione, Criminal Section VI, with judgment no. 9846 (dep. 08/03/2023) established that the new regulation of interceptions, as dictated by Legislative Decree no. 216 of 2017 and remodulated by Legislative Decree no. 161 of 2019, entered into force only after this last extension, with the exception of the modification made by Legislative Decree no. 216 of 2017, art. 6 in force and effective since 26 January 2018 and which had already extended the special discipline provided for by Legislative Decree no. 152 of 1991, art. 13 on the subject of interceptions for organized crime offenses also in proceedings for crimes committed by public officials against the public administration, and without considering:
a) the further amendments made by Law 9 January 2019, n. 3 (so-called Spazzacorrotti), which repealed Legislative Decree no. 216 of 2017, cited art. 6, paragraph 2 which excluded the use of the sensor to carry out interceptions in the places indicated by art. 614 criminal code in the absence of a well-founded reason that the criminal activity was taking place there;
b) the provisions of Legislative Decree 30 December 2019, no. 161, art. 2, paragraph 6 converted, with amendments, by Law 28 February 2020, n. 7, which have been subject to a diversified entry into force, because of immediate application, as a result of the provisions of the Legislative Decree 30 April 2020, no. 28 (which entered into force on 01/05/2020), and which concern the definition of the terms and methods of filing the deeds and provisions relating to interceptions exclusively in telematic form, referred to a decree of the Ministry of Justice.

The Supreme Court then specifies that, on the subject of connection pursuant to art. 12 C.p.p., beyond the reference to unidentified objective or subjective connections between the crime for which the tapping was ordered and those for which proceedings are being taken, the Court should have concretely verified the partial coincidence between the various defendants, the substantial connection between the crimes, and, therefore, the existence of the conditions set forth in art. 12 c.p.p., lett. b) and c)

In particular, if he wanted to refer to the art. 12 c.p.p., lett. b) the Court should have examined whether, at the time when B.B. decided to commit the first crime, had already conceived in its essential outlines the crimes for which they are proceeding, which, however, would have been committed in another place and with a different person.
Similarly, the Court, in the event that it wanted to refer to art. 12 c.p.p., lett. c), should have verified the existence of a substantial, objective link between the offences, i.e. a structural link between them, certainly not being able to consider such the mere circumstance - completely irrelevant - that all the facts would have accrued on the basis of the award o the execution of tender contracts which also took place in different places and between different subjects.

The decision was therefore annulled with postponement