Judgment n ° 16130 of 2 May 2002
DISTANCE CONTROLS WITH GPS DETECTION SYSTEMS DO NOT REQUEST AUTHORISATION AS THE COMMUNICATION INTERCETZERS. (Fifth Criminal Section - President F. Brown - Speaker M. Fumo)
THE COURT LOOKS AT FACTS
The Turin Court of First Instance, by the contested decision, confirmed, inter alia, the custody order in custody issued by the competent GIP on 31/8/2001 against BL, MB, CF and others, all Investigated for association crimes for aggravated delinquency and robbery.
The defense counsel of the three investigators mentioned above is acting in cassation and infers: the nullity of the order appealed against by law, the defect, the contradiction and the illogical nature of the motivation.
During the investigations, the applicants' moves were monitored and reconstructed through a satellite survey activity.
It is a real intercepting activity, which must therefore be authorized by the GIP.
In the present case, although permits have been issued for the execution of environmental interception, no authorization is required (and therefore granted) for the activity of detecting the movement of the vehicle in use to the suspects.
It follows that the Court of First Instance erred in its rejoinder when it rejected its defensive exception, promptly brought before it.
Hence the nullity of the contested order; Breach of law and lack of motivation with reference to the existence of serious indications.
Indeed, the precautionary judge has undoubtedly favored circumstances (favored by the suspects), arguing that the mere availability of a garage or porch and a car is the logistical structure and the predisposition of the means, that is to say those elements from which to deduce The existence of an associative structure and therefore of the offense ex art. 416 c.p. .
The Court of First Instance's finding is more supportive of the claim that it sees another symptomatic element in the alleged existence of the same modus operandi and the existence of links with some recipients.
The Court is likewise in the process of examining the elements of individual offenses.
With reference, in fact, to the participation of the above mentioned investigated to the individual thefts prepared in the damage of various PPs. OO, it is argued that the incompatibility of the hours in which the offenses would have been consumed, the failure to locate the GPS system of the car at the place where the theft was consumed, or the failure to match the number of suspects with the number Of people noticed on board the car are irrelevant circumstances.
Arbitrarily, however, it was considered conclusive that during conversations intercepted by cars, names or nicknames could be pronounced that might correspond to those of the suspects; Breach of law and lack of motivation as regards the existence of precautionary requirements.
On the one hand, the Court of First Instance did not give reasons for the only apparent cautionary presumption (Article 274 (C)), on the other hand, did not consider that, pursuant to Article II bis of Art. 275 c.p.p., the custodial measure can not be applied when there is reasonable justification for granting the conditional sentence (a benefit which can certainly be accessed by B. and C.).
The application must be dismissed and the three applicants must be ordered, jointly, to pay the costs.
The first complaint is unfounded.
They argued that the failure to crawl in the c.p.p. Of the need for authorization also for the cc.dd. GPS intercepts derive solely from the fact that, at the time of writing the code, that satellite control system had not yet been realized.
However, this is always a matter of interception and therefore the court's authorization is necessary.
The foregoing statement can not be shared, as the localization of a moving person (or object) can never be considered an interception activity, though made with modes and technologies similar to those with which they are brought To execute, in fact, the intercepts provided by the rite code.
Chapter IV of Book III of the aforementioned code recalls, as is well known, interception of communications and conversations.
Article. 266 contemplates the interception of conversations, telephone communications or other forms of telecommunication.
The last paragraph of this article refers to the intercepts between the present.
Article. 266-bis is related to the interception of computer or telematic communications.
Article. 268 provides for the recording and transcription of intercepted communications.
It is therefore evident that the concept of interception, although never explicitly defined by the legislator, is related to an (Or reading) communications and capturing communications between two or more persons. It is, in a sense, consistent with the seizure of an immaterial good: the content of a communication. The investigation activity is followed by the Movements on the territory of a subject, to locate it and therefore to control, at a distance, not the flow of communications that it sends or receives, but its presence at a particular place at a certain time as well as the itinerary followed, meetings It has, in short, a technologically characterised mode of copying. As such, it falls within the means of research of the cc.dd. Moreover, while intrusion into other communications involves the compression of the freedom and secrecy of the same, that is, of a constitutionally protected value (Art 15 Cost.), And therefore the need for justified authorisation by the judicial authority , The localization, even at a distance, of a subject may fall within the ordinary control and prosecution activities of the judicial police (see Articles 55, 347, 370 cpp). However, not only does Provisions ex artt. 266 and following cpp, relating to interceptions of conversation and / or communications, but without the foregoing constitutional principle, does not necessarily need the decree motivated by the PM, which is indispensable, for example, for the capture of traffic tickets (See SU No. 6 of 23/2/2000, D'Amuri, 215841). Furthermore, when the legislator intended to adapt the ritual code to the new findings of the technique, it intervened by issuing specifics Norms. 11 of Law 547/93, which introduced art. 266-bis, which specifies that it is permissible, with the modalities and within the limits set out in the previous articles, to intercept the flow of communications relating to computer and telematic systems, with reference to offenses under art. 266 c.p.p. (As well as those made by the use of technologies, namely, computer or telematics). It therefore excludes that the GPS monitoring of the movement of the suspect can in the future be through the issuance of appropriate derogating rules of the general principles in Of preliminary investigations, specifically disciplined. The second complaint is inadmissible, in part, manifestly unfounded, in part entrusted with considerations of merit. It is certainly legitimate to hypothesize on the basis of the availability of premises (garage, building), means of transport (Audi car), as well as the stability of the agreement with the hosts and the persistence of the operating modes, the existence of a criminal association (In this case, thefts in apartments). It is, of course, symptomatic about the existence and stability of the associative constituency, which must be appreciated and critically scrutinized. Other did not make the Court of Auditors, which He recalled that the three suspects, along with other non-recurring, were involved in several criminal episodes, carried out with identical techniques, always using the same car, admitted to a well-identified caretaker. The thefts followed contacts with well-identified receptors. In short, the prudent judges have certainly motivated their conviction, bearing in mind the Reason for which they considered that, in the state, the existence of a delinquent structure, which acted according to an experimented (and respected) protocol, should be hypothesized. The allegations concerning the allegations by the pre-trial judges regarding individual thefts (crimes- End) are in fact censored in the face of an argumentative interpretation of the factual data of the Court of First Instance, which explained, in a non-illogical manner, why it was plausible, in the state, the reconstructive hypothesis offered by the Prosecution Finally, the Court of Appeal clearly and reasonably refers to the danger of recurrence of criminal conduct, the danger of escape (only for C.), the proportion between the magnitude of the Facts and the sanction that could be imposed on them. They thus overcome the applicants' claim, which rests on the dictate of paragraph II bis of art. 275 c.p.p. If guilty of their alleged offenses (association for delinquency and multiple thefts), the suspects could be sentenced to a penalty higher than the one that allows the granting of the benefit under art. 163 c.p. This is the explicitly expressed consideration by the pre-trial judge who has taken into account his conviction (implicitly referring to the parameters ex Article 133 c.p.) and that it is therefore unworthy of the lenient censorship. 94 d