Italian Courts’ Decisions on access to external communications records after the ruling of the CJEU
On March 2, 2021, the Court of Justice of the European Union (“CJEU”) ruled on (i) the criteria for establishing the lawfulness of public authorities accessing external communication records (“ECR”) stored by electronic service providers to carry out criminal investigations; and (ii) the possibility of using such data as evidence during a criminal proceeding (decision No. C‑746/18 H.K./Prokuratuur).[1]

One of the most important principles established by the CJEU related to the essentiality of review prior to the public authority accessing ECR, to be carried out by a court or by an independent body. This independent role may not be played by the public prosecutor’s office that directs the investigations and brings the public prosecution before the court, as in Italy. Therefore, the public prosecutor’s office is not in a position to authorize access to ECR.

The decision of the CJEU set an important precedent supporting the need to adopt specific regulations on the limits and modalities by which Italian public authorities access ECR. The interpretation of the CJEU is highly relevant in evaluating the compatibility of Italian legislation with EU law. Pursuant to Italian law, in fact, access to ECR must be authorized by a decree of the public prosecutor, regardless of the seriousness of the crime involved.

Italian jurisprudence has always provided an interpretation aimed at safeguarding the internal regulation, but, in the wake of the CJEU decision, Italian judges for preliminary investigations, as well as Italian courts, started to issue contradictory decisions concerning whether the EU directive on privacy and electronic communications may be considered directly applicable in Italy.

In particular, a judge for preliminary investigation of the Court of Rome[2] provided authorization for acquisition of ECR, in response to an application submitted by the public prosecutor, on the basis of the direct applicability of the EU legislation and the subsequent disapplication of internal rules, by stating that the indications provided by the CJEU may be considered clear, precise, and specific—and therefore likely to be directly applicable with erga omnes effects.

On the contrary, another judge for preliminary investigation from the same court rejected an application for the same submitted by the public prosecutor, based on the impossibility of directly applying the EU regulation in Italy, given the vagueness of the judgment of reference with regard to cases in which data and telephone records may be sought.[3]

In order to resolve the differing interpretations that may be applied to the abovementioned regulation, the Court of Rieti, by means of a decision on May 4, 2021,[4] submitted a request to the CJEU for a preliminary ruling concerning the “interpretative doubts” resulting from the CJEU judgment of March 2, 2021.

In particular, the Court of Rieti asked for explicit clarification with respect to the scope and effectiveness of the CJEU judgment, by evaluating the possibility to establish:

  • that the public prosecutor, as designed by the Italian legal system, offers sufficient independence guarantees to continue to be indicated as the subject having the power over acquisition of ECR; and/or
  • that the CJEU decision has non-retroactive effects, in order not to prejudice the fundamental principle of legal and investigative certainty with respect to pending judgments, in terms of prevention and repression of serious crimes.

The aim of the Court of Rieti is to trigger potential useful intervention on the part of the Italian legislature without engendering unjustified differences in treatment with regulations concerning similar matters (e.g., with respect to telephone tapping).

The different interpretations and the request made by the Court of Rieti, as described above, highlight the urgent need for the Italian legislature to take action, as it seems to be the sole subject entitled to regulate this matter, involving as it does the limitation of the fundamental individual right of privacy, which is protected at both the internal and the EU level.

[1] We discuss the decision of the CJEU and its possible consequences for criminal investigations in Italy in the following article: https://portolano.it/en/newsletter/portolano-cavallo-inform-digital-ip/the-cjeu-restricts-access-to-and-use-of-external-communication-records-in-criminal-proceedings.

[2] You can find the decision of the judge for preliminary investigation of the Court of Rome at the following link: https://www.giurisprudenzapenale.com/wp-content/uploads/2021/05/GIP-Roma-decreto-acquisizione-dati.pdf.

[3] You can find the decision of the judge for preliminary investigation of the Court of Rome at the following link https://www.giurisprudenzapenale.com/wp-content/uploads/2021/05/GIP-Roma-non-luogo-a-provvedere.pdf.

[4] You can find the decision of the Court of Rieti at the following link: https://www.giurisprudenzapenale.com/wp-content/uploads/2021/05/Ordinanza-Tribunale-di-Rieti-Tabulati-telefonici.pdf.

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