Privacy: No to the use of telephone records
by Fulvio Sarzana of S.Ippolito, Lawyer.
This is the solution reached by the Supreme Court of Cassation in a ruling at the end of September 2022.
The Court accepted the exception proposed by the defendant's defense, with which the Court was asked to declare the inadmissibility of the "telephone and telematic acquisitions" in the documents; on which the sole basis would have been the defendant's judgment of liability.
This exception was based on the consideration that, pending the trial, Article 1 of Legislative Decree no. 132 of 2021 had come into force, with a consequent amendment to Article 132 of the Private Code, i.e., the regulatory parameter for the acquisition of data used in the proceedings in question.
According to the defense, it would have been necessary to take the new provisions into account also in the ongoing proceedings and the sanction of inadmissibility, as a consequence of failure to comply with the new conditions – in particular due to the absence of a reasoned judge's decree – should also have been applied to data acquisitions prior to Legislative Decree no. 132 of 2021.
The law has also dictated a specific transitional discipline to the paragraph 1-bis of art. 1 of Legislative Decree no. 132 of 2021, according to which the "data relating to telephone traffic, telematic traffic and unanswered calls, acquired in criminal proceedings prior to the date of entry into force of this decree, can be used to charge the accused only in conjunction with other evidence and exclusively for the investigation of crimes for which the law establishes the penalty of life imprisonment or a maximum term of imprisonment of not less than three years, determined pursuant to Article 4 of the Code of Criminal Procedure and Crimes of threatening and harassing or disturbing people by means of the telephone, when the threat, harassment or disturbance is serious.".
Privacy: No to the use of telephone records
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