Precautionary Measure Annulled: Violation of the Right to Defense – Milan Court of Review

By Avv. Roberto A. Catanzariti - Legal Aid

With order of October 3, 2022, the Milan Court of Review ordered the annulment of the precautionary measure of house arrest previously applied to a woman accused of crimes related to the exploitation of prostitution and money laundering, noting a serious impairment of the right to defense in violation of Article 178 letter c) of the Italian Code of Criminal Procedure.

THE CASE

The measure subject to review had been issued by the GIP (Judge for Preliminary Investigations) at the Court of Monza on September 12, 2022, based on serious indications of guilt largely derived from telephone and environmental interceptions, as well as audio-video recordings made inside a massage center. However, the defense had not been able to fully exercise its right of access to these technical investigative acts, despite a timely and specific request for the release of the recordings and transcripts.

THE DECISION

Accepting the defense appeal, the Court of Review held that the lack of access to the technical acts – in particular to the audio files of the interceptions – had substantially harmed the right to defense, leading to an incurable nullity pursuant to Article 178 of the Italian Code of Criminal Procedure. In particular, the Panel emphasized the consistent orientation of the Court of Cassation according to which:

"in the matter of review, the omission by the public prosecutor to deliver the audio recordings of the interceptions, used for the motivation of the precautionary order, determines their unavailability for precautionary purposes" (Cass., Sez. 3, n. 37136 of 10/06/2021; Cass., Sez. Un., n. 20300/2010).

The Court also highlighted how the conduct of the investigated person, as described in terms of managing a massage center suspected of illicit activities, did not constitute the elements of the alleged crimes, in the absence of suitable elements to demonstrate the organization and control over the alleged prostitution activities of others.

RELEVANCE OF THE RULING

This order is part of the path traced by the jurisprudence of legitimacy on the central value of the right to defense even in the phase of precautionary measures, reiterating the principle that the use of acts with technical content (interceptions, audio-video recordings, IT acquisitions) is subject to their concrete availability to the defense counsel in fully effective and timely terms.

The Court emphasizes that any technical problems (such as network malfunction for receiving files) cannot in any way justify a restriction of the right of access to documents. It is therefore the duty of the prosecuting authority to ensure that IT and logistical tools are fully functional, in order to guarantee an effective adversarial process even in the incidental phase.

OPERATIONAL CONCLUSIONS

The Milan ruling constitutes an important confirmation of the orientation according to which the adversarial process on the fumus cannot disregard a full usability of the evidentiary sources by the defense, especially where the precautionary order is based on audio-video recordings or complex technical data. In the review phase, the concrete unavailability of such acts entails the unavailability of the relevant elements, with the consequent annulment of the measure.

For the criminal lawyer, this is a useful precedent for setting up defense strategies in cases where the defense is hindered, even indirectly, in accessing technical acts: it will be essential to formalize specific requests, indicating the necessary files and the reasons for urgency, in order to highlight the relevance of the lack of response for the purposes of procedural nullity.