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Source: US Global Legal Monitor

(Jan. 31, 2020) On January 1, 2020, Decree Law No. 161 of December 30, 2019 (Decreto-Legge 30 dicembre 2019, n. 161) (D.L. 161), Urgent Amendments on the Topic of Interception of Conversations or Communications, entered into force in Italy. The new measures are aimed at updating criminal procedures for obtaining evidence from telephone and cyber communications.

Temporal Application of the Reforms

D.L. 161 amends article 9(1) of Decree Law No. 216 of December 29, 2017 (Decreto-Legge 29 dicembre 2017, n. 216) (D.L. 216) to read that the latter’s provisions will apply to interception operations authorized in criminal procedures commencing after February 29, 2020. (D.L. 161, art. 1(1)(1), amending D.L. 216, art. 9(1).)

Amendments to the Code of Criminal Procedure

D.L. 161 also amends the Code of Criminal Procedure (C.C.P.) to prohibit even the partial publication of the content of interceptions not carried out according to the law. (D.L. 161, art. 2(1)(a), amending C.C.P. art. 114, in relation to C.C.P. arts. 268 & 415-bis.) The reform authorizes the interception of communications between individuals by inserting a computer sensor on a portable electronic device belonging to a person of interest in a criminal investigation. In addition to cases of crimes committed by public officials against the public administration that are punished with imprisonment of not less than five years, the reform also authorizes interceptions for crimes against the public administration by public officials or persons in charge of the public service that carry a penalty of imprisonment of not less than five years. (D.L. 161, art. 2(1)(c), amending C.C.P. art. 266, para. 2-bis.)

Other amendments to the C.C.P. authorize the interception of communications for crimes against the public administration committed by public officials or persons in charge of the public service when other crimes are involved. (D.L. 161 art. 2(1)(d)(1), amending C.C.P. art. 267, para. 1; art. 2(1)(d)(2), amending C.C.P. art. 267, para. 2-bis; art. 2(1)(d)(3), amending C.C.P. art. 267, para. 4.)

An additional amendment provides that the public prosecutor must carry out interception operations personally or avail himself of a judicial police official, who in turn must report to the public prosecutor concerning the content of the communications or conversations. (D.L. 161, art. 2(1)(d)(4), amending C.C.P. art. 267, para. 4.)

The public prosecutor must indicate and ensure that the transcriptions do not contain expressions that cause injury to a person’s reputation or that concern personal data defined as sensitive by law, except in the case of interceptions deemed relevant for the investigations. (D.L. 161 art. 2(1)(e)(1), amending C.C.P. art. 268, para 2-bis.)

D.L. 161 provides that within five days from the conclusion of an interception operation, the transcripts must be transferred to the public prosecutor for their preservation and archiving. (D.L. 161, art. 2(1)(e)(3), amending C.C.P. art. 268, para. 4.) If the filing of the transcript with the respective court may cause a serious prejudice to ongoing investigations, the judge may authorize the public prosecutor to delay such filing to a date no later than the closure of the preliminary investigations. (D.L. 161, art. 2(1)(e)(5).) The accused’s defender must be given immediate access to examine the transcripts electronically, and has the same right as that afforded to the public prosecutor to participate in the preparation of the excerpt prepared by the judge on the basis of the transcripts. (D.L. 161, art. 2(1)(e)(6).) The transcripts must be included in the case file before the respective court. (D.L. 161, art. 2(1)(e)(7).)

Transcripts of interceptions must be kept until the judicial decision in the respective case is no longer subject to appeal. The concerned party may request that the judge who authorized or validated the interception approve the destruction of the transcripts for reasons of confidentiality. (D.L. 161, art. 2(1)(f)(3), amending C.C.P. art. 269, para. 2.)

Amendments to the Regulations Implementing the Code of Criminal Procedure

D.L. 161 also amends the regulations of the C.C.P. contained in Decree Law No. 271 of July 28, 1989 (Decreto Legislativo 28 luglio 1989, n. 271) (D.L. 271) to adapt the provisions related to the interception of communications in accordance with judicial proceedings related to the aforementioned amendments to the C.C.P. The new legislation requires that precise information be indicated in the respective archive, including the details of the decree that ordered the interception; the description of the registration procedures; the annotation of the day, start time, and cessation of interception; the names of the people who took part in the operations; whether a computer sensor on a portable electronic device was used; the type of program used; and, when possible, the places where the communications or conversations took place. (D.L. 161, art. 2(1)(a), amending D.L. 271, art. 89.)

The general attorney of the republic must ensure that the archive of the transcriptions guarantee the secrecy of interceptions that are not necessary for the procedure, or are irrelevant or whose use is prohibited, or that concern particular categories of protected personal data. (D.L. 161, art. 2(2).)

Likewise, computer programs used to store and archive transcripts of interceptions must comply with technical requirements that guarantee their reliability, safety, efficacy, and availability only to authorized operators. (D.L. 161, art. 2(4).) Moreover, the Ministry of Justice must issue a decree establishing the methodology and terms for the filing the documents in all electronic interception procedures. (D.L. 161, art. 2(6).)