4On December 15, 2023, the Court of Cassation issued a judgment annulling with referral of the Review Court order, which upheld the probative seizure decree of forensic copies of computer material related to the offenses of corruption and unauthorized access to computer systems.
Computer Seizure: The appeal to the Court of Cassation
The defendant filed an appeal to the Court of Cassation, claiming, among other things, a violation of the law by the Public Prosecutor in activating an undifferentiated search on all documents on the devices, without prescribing to the Judicial Police to select only relevant data for the investigation of the alleged crimes provisionally, without specifying the correlation between the measure and the crimes, and without conducting data selection as quickly as possible.
The decision of the Court of Cassation
The Supreme Court preliminarily recalled the most relevant precedents concerning digital and computer evidence and applied them to the case, outlining a list of rules that the Public Prosecutor must adhere to in these cases:
- The probative seizure decree must contain a reasoning clarifying the purpose pursued for finding the facts: it must explain why confiscation is necessary and why it is the appropriate measure for the specific case, while less invasive precautionary measures are inadequate.
- The Public Prosecutor may order the probative seizure of even very extensive content when examining a large amount of data whose contents are relevant to the investigations.
- The Public Prosecutor may retain the complete copy only for the time strictly necessary to carry out technical operations, in compliance with the principles of proportionality and adequacy.
- It is Public Prosecutor’ duty to select data that satisfy the instrumental connection between them, the crime, and the evidentiary need, as the constraint can be maintained only if the digital material is relevant to the crime and serves a necessary evidentiary function.
- The Public Prosecutor must organize adequately to select telematic information fulfilling the probative function of the seizure as quickly as possible.
- The Public Prosecutor must promptly return seized items as soon as a reasonably necessary time for investigations has elapsed, especially when data has been seized from persons unrelated to the crime.
- The forensic copy of the data included in the seized container is not relevant as something pertaining the crime – i.e., what the Public Prosecutor is authorized to put under constraint serving an evidentiary function – as it includes an indefinite set of data.
- The complete copy constitutes only a means copy allowing the return of the devices and does not justify the retention of all acquired data.
- In case of failure to return in a timely manner, the interested party may file an application for restitution (considering, however, that the reasonable duration shall be evaluated in relation to the technical difficulties of data acquisition and the possible lack of cooperation of the suspect in providing access keys to the devices).
- The concept of excessive sacrifice of the individual’s right regarding the measure is at stake when exceeding the time necessary to select data relevant to the crime.
In the case at hand, the reasoning of the challenged provision was apparent; therefore, the Court annulled it with referral.
Case law of the ECHR
Times and methods of copying the memory of seized devices must also comply with supranational principles. The principle of proportionality is recalled by the case law of the ECHR in cases concerning interferences with the property right protected by the ECHR. In particular, the Strasbourg Judges have highlighted that the balance between the interests of crime investigation and those of property respect is not satisfied if the individual has suffered an excessive burden on his property rights.
Therefore, there is a violation of the property right and the principle of proportionality when the proper balance between the requirements of the general interest and the compromised right is not respected.
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