The procedural act that this contribution proposes concerns a delicate criminal procedural issue: the possibility of acquiring messages whatsapp without a formal provision of apprehension adequately motivated at the base and the consequent possibility of placing the evidentiary relevance of such telematic data at the basis of a personal custodial precautionary measure.
The legal solution adopted by the Judge of Nomophylachy intervenes, in fact, on this thorny issue.
At the end of a rather linear and absolutely shareable motivational path, the Supreme Court of Cassation states that the precautionary custodial measure cannot be supported, in terms of serious evidence of guilt, on the content of the messages whatsapp that it was acquired following a “telematic inspection” and not on the basis of a formal and adequately motivated evidentiary seizure order.
The heavy procedural reverberation of such an interesting iter motivational is that the chat acquired in this way, during a computer inspection and before the return of the forensic copy as ordered by the Review Court, constitutes a hypothesis of so-called pathological unusability of the said data, which will not be usable not only in the preliminary investigation phase but also for precautionary purposes.
The technical precipitate of the interesting excursus The motivation of the Judge of Nomophylachy is represented by the following principle of law: «The computer inspection decree by which the public prosecutor, before ordering the return of the “forensic copy” of the data acquired through the evidentiary seizure of cell phones, annulled by the review court, acquires the same data again, is illegitimate, since this is a measure that does not comply with the jurisdictional decision with the consequent loss of the power of the investigating body to further affect the asset, not even subject to mandatory confiscation, so that the acquisition of such data constitutes a violation of the sphere of freedom and confidentiality of correspondence, outside the conditions established by art. 15 of the Constitution.».
Content reserved for subscribers
Subscribe to
1 anno
€ 69,00