REPUBBLICA ITALIANA
IN NOME DEL POPOLO ITALIANO
composta dai signori:
- Giovanni Maria FLICK Presidente
- Francesco AMIRANTE Judge
- Ugo De Siervo "
- Paolo MADDALENA "
- Alfio FINOCCHIARO ”
- Alfonso QUARANTA ”
- Franco GALLO "
- Luigi MAZZELLA "
- Gaetano SILVESTRI "
- Maria Rita SAULLE "
- Giuseppe thesaurus "
- Paolo Maria NAPOLITANO "
gives the following Judgement
in judging the constitutionality of Article. 268 of the Criminal Procedure Code, sponsored by the Judge for Preliminary Investigations of the Court of Catanzaro, by order of December 22, 2005, registered as No. 570 of 2006 and published in the Register of Orders Official Gazette of the Republic No. 50, Special Series, in the year 2006.
Since the act of incorporation of NP ;
heard the public hearing of September 23, 2008 the Judge Rapporteur Gaetano Silvestri.
The facts
1. - The judge for preliminary investigations of the Court of Catanzaro, by order of December 22, 2005 (received by the Constitutional Court October 30, 2006), has raised - with reference to Arts. 3, 24, second paragraph, and 111, second and third paragraphs of the Constitution - an issue of constitutionality of Article. 268 of the Code of Criminal Procedure, to the extent that you do not deposit, or otherwise not available to the suspect and his legal counsel, when requested, records of telephone communications as a basis for a precautionary measure staff already executed, even before the filing procedure set by paragraphs 4 and following of that art. 268 cod. proc. pen.
Judge court is called upon to evaluate a request for withdrawal or replacement of the extent of pre-trial detention ordered against persona accusata dei delitti di associazione di tipo mafioso (art. 416- bis del codice penale) e usura (art. 644 cod. pen .).
La misura era stata applicata, alcuni mesi prima, sulla base degli elementi desunti da intercettazioni telefoniche e «ambientali», che il pubblico ministero richiedente aveva sottoposto al giudice della cautela solo per il mezzo di trascrizioni operate dalla polizia giudiziaria. La difesa dell’indagato aveva sollecitato il pubblico ministero a consentire l’ascolto e la riproduzione delle registrazioni originali, contando di dimostrare l’intervenuto travisamento della prova raccolta. Il magistrato inquirente, però, aveva respinto l’istanza, arguing on the continued conduct of preliminary investigations and assuming that the right of defense access to the records could be exercised only after the deposit of documents relating to the interception ("the stage of Subprocedure which will then prevail before the competent court.")
The defense of the suspect was then directed to the referring court, with a question de libertate under which assumes that in this case, transcripts of police used in the reconstruction of the circumstantial would be unreliable, as marked omissions and repeated references to incomprehensible sentences, thus changing the sense of the conversations instigated by the individual.
For this reason, and because the evidence-based care inaccessible for the defense, was primarily sought the withdrawal of the measure being implemented. In the alternative, the defense of the suspect to plead the unconstitutionality of Article. 268 cod. proc. pen. For the alleged conflict with the Articles. 24 and 111 of the Constitution, "in so far as the law does not provide for the transposition of the recordings on magnetic tape used in custodial request and subsequent order of application."
Judge court proceeds on the basis that the pubblico ministero avrebbe negato legittimamente l’accesso della difesa alle registrazioni che documentano le conversazioni intercettate. A partire dal comma 4, l’art. 268 cod. proc. pen . regola un procedimento che muove dal deposito dei verbali e delle registrazioni, e che subordina il rilascio di copie all’intervenuta celebrazione della cosiddetta udienza di stralcio, limitandolo dunque alle conversazioni indicate dalle parti e ritenute ammissibili dal giudice. La scansione dettata dalla norma, a parere del rimettente, non prevede alcuna deroga per la fase antecedente al deposito, neppure quando le conversazioni intercettate vengano utilizzate, a fini probatori, nell’ambito di un incidente cautelare.
According to the court a quo , the law does not preclude the prosecution service to transmit to the court supervision of the magnetic media or digital reproducing the intercepted communications. However, according to the unanimous line of decisions, the demand for care can also be evaluated and accepted on the basis of informal transcripts, edited by the judicial police. In these cases, the defense would remain free access to the records: in fact these are not included because they were submitted to the court, among the measures to be filed under Article. 293 cod. proc. pen. Immediately after the implementation of the restrictive measure, the deposit pursuant to art. 268 cod. proc. pen., On the other hand, may be postponed until the end of the preliminary investigation, thereby also delaying the exercise of the right of defense access to documents and recordings. In essence, the prosecutor would be allowed to "not settle or otherwise not available to the suspect and his lawyer, who so request, records of conversations form the basis of a personal protective measure." The referring
is reasonable, in front of urgency typical accident supervision and the continuing secrecy of investigations, that the law does not require the filing of wiretapping and to the fulfillment prima dell’uso delle risultanze a fini cautelari. Tuttavia le esigenze descritte vengono meno dopo la contestazione degli elementi indiziari acquisiti, e dunque non possono giustificare la perdurante esclusione della difesa dall’accesso alle registrazioni, specie quando venga negata la corrispondenza fra le trascrizioni redatte dalla polizia giudiziaria ed il contenuto effettivo dei colloqui intercettati.
Il giudice a quo , con specifico riguardo alla garanzia del diritto di difesa dopo l’esecuzione di un provvedimento cautelare, ricorda come
According to the referring court criticized the discipline infringes the principle of equality between the prosecution and defense, and still be entitled to the suspect being conducted as soon as the conditions necessary to prepare a defense (Article 111 of the Constitution). The
intervened 'publication' of the test after the implementation of the restrictive measure, then, would the parties to the proceedings on terms of substantial equality, which should have equal treatment in the perspective article. 3 of the Constitution and instead, under the current rules, the prosecutor would maintain exclusive access to the source of "primary" test it. The referring
reiterates that the right defensive access not be regarded as guaranteed by paragraph 3 of art. 293 cod. proc. pen. Because the deposit is required only for the file sent with the request for precautionary measures that the prosecutor is not required to integrate with the integration of media recording. Detrimental to the prescription, however, is found in art. 268 of the Code of ritual, because just this rule (omitting the provision of a mechanism for the exposition accident supervision) would preclude access to records, even against a defense request to that effect, until the filing of acts governed by paragraphs 4 and below.
In point of relevance, Judge court notes that the instance de liberty on which the person concerned is required to provide restricted in freedom according to the content of communications, according to the defense of the person concerned would have been misinterpreted due to a transcript summary, incorrect and incomplete.
2. - The suspect in the main proceedings before the court by an application filed December 20, 2006.
After a summary of the procedural scans already illustrated by the court, the memory of the constitution lists a series of communications that the police would be transcribed, and sometimes only a summary, a cursory and incomplete.
According to the private party should provide the required supervision, the case law on the primary value of records as sources of proof, by its magnetic or digital, at least in cases where it can not be promptly complied with the provisions of paragraph 4 of 'Art. 268 cod. proc. pen., Which requires the deposit of materials relating to the interception, unless indeed the possibility of a waiver, within five days of completion of play. In any case, should not be allowed to the prosecution to deny access to records after the execution of the injunction. Such foreclosure thwart the principle of equality between the parties and the right to a hearing of the accused, whose practice requires full knowledge of the sources of evidence similar to that of the accuser.
A "balance" the sacrifice of defensive collateral requirements do not apply to investigative secrecy or confidentiality of persons involved in the interception. The private shows in fact - in line with the findings of the referring court - that the complaint concerns the proposed communication only as a basis of the precautionary measure, therefore, already "revealed" dall'inquirente and already deemed relevant to the proceedings. The recognition of right to copy, on the other hand, does not amount to a permit disclosure of records, the circulation of "outside" would be governed by general rules of acts of the preliminary investigation.
The contested provision would betray the ratio of the aforementioned sentence no 192, 1997, by which the
legal considerations
1. - The judge for preliminary investigations of the Court of Catanzaro doubts - as Articles. 3, 24, second paragraph, and 111, second and third paragraphs of the Constitution - the constitutionality of Article. 268 of the Code of Criminal Procedure, in so which can not deposit or otherwise not available to the suspect and his legal counsel, when requested, records of telephone communications as a basis for a precautionary measure staff already done, even before the filing procedure regulated by Sections 4 and following of that art. 268 cod. proc. pen.
2. - The question is based within the limits specified below.
2.1. - Article. 268, paragraph 4, no. proc. pen. requiring the filing in the office of recordings of intercepted communications, together with the decrees and authorization to the minutes of the underlying transactions of listening, within five days after the conclusion of the operations themselves. However, if the deposit can result in a serious injury to the investigation, the court shall authorize the prosecutor to delay no later than the close of the preliminary investigation (paragraph 5). After filing, which allows the defenders to examine documents and hear the conversations, you start to drop during the so-called hearing, during which the court acquires the communications referred by the parties, delete them, even in the office, the communications where it is forbidden to use, it has the full transcript of communications acquired only with the forms and safeguards of the report (paragraph 6).
Paragraph 2 of that Article. 268 cod. proc. pen . consente la formazione dei cosiddetti «brogliacci», costituiti dai verbali nei quali è trascritto, a cura della polizia giudiziaria, anche sommariamente, il contenuto delle comunicazioni intercettate. La trascrizione integrale, nella forma della perizia, è poi disposta dal giudice per essere, infine, inserita nel fascicolo per il dibattimento (comma 7).
Si deve rilevare che, in caso di autorizzazione al ritardo del deposito degli atti concernenti le intercettazioni, la trascrizione non può avere luogo prima che decorra il termine dilatorio accordato dal giudice e che vengano compiuti gli adempimenti prescritti dai commi 6 e seguenti dello stesso art. 268. Solo a questo punto i difensori possono estrarre copia delle transcripts and enforce the implementation of magnetic tape recording (paragraph 8).
2.2. - In case of accident pre-trial if the prosecutor presents to the judge for preliminary investigations required to measure deprivation of liberty, may file in support of that claim, only the "waste books" and not recordings of intercepted communications. In this sense it is oriented to the constant and uniform law review (ex plurimis , the most recent Supreme Court Criminal, Case No. 36439 of 2004, Case No. 39469 of 2004). However, the same Court of legitimacy is also constant and uniform in arrange for the transcript (also the expert) does not constitute direct evidence of a conversation, but it should be regarded as a representative transaction in graphic form the content of evidence obtained by recording audio (formerly plurimis , among the most Recent Criminal Cassation, Judgement No. 4892 of 2003, Case No. 10890 of 2005).
3. - The court, after noting that the rules do not require the prosecutor to the filing of the records nor any obligation to make available to defendants, at their request, questions the constitutionality of Article. 268 cod. proc. pen. because the same not providing the right of defense to have direct knowledge of the communication log form the basis of the request and the subsequent measure restricting personal liberty of the suspect, diminishes the right to defense (Article 24, second paragraph of the Constitution), alters, down the suspect and the equality of parties before the court (Article 111, second paragraph of the Constitution) and does not allow the accused person to have the conditions necessary to prepare his defense (Article 111, third paragraph, Constitution) . The contested provision would also be contrary to the principle of equality of citizens before the law contained in art. 3 of the Constitution.
believes that listening to this Court direct the conversations intercepted communications can not be superseded by more transcriptions, without contradiction, by the judicial police, which may be, for explicit legislative requirements (Article 268, paragraph 2, no. proc. pen.), including summary. It is hardly necessary to observe that direct access to the records may be deemed necessary by the defense of the suspect, to assess the real significance of such evidence. The quality of the recordings may not be perfect, and impose a real work of 'interpretation' of words and phrases recorded, especially if the conversations are used dialects or foreign languages. In any case, are often relevant to the intonations of the voice, the pauses, which, for the same transcription of phonemes, may change all or part of the meaning of a conversation. There is no doubt that the transcription of the talks is an expert mode of assessment of the evidence more reliable than it is in fact the police operator and, a fortiori, the synthesis that may be contained in the "waste books". The expert is an expert, with specific equipment, and operates between the parties, possibly through consultants. The same provides a literal transcription, but also additional information when needed (intonation of voice, length of pause etc.), which may affect the meaning of a communication. The transcript also may contain components expert interpretation, but is guaranteed by the strangeness of its author in the investigation and hearing.
is clear that in the absence of the transcript made by the expert, the interest on direct defensive pins, each time in which the defense believes it should check the authenticity of the transcripts made by the police and used by the public prosecutor for court to make its demands. This is precisely the subject of the case law of this case. The possibility for the prosecutor to deposit only "waste books" to support a request for custody of the suspect, if justified by the need to proceed without delay to safeguard the objectives that the Code of ritual allocated to the measure, can not limit the right of defense direct access to the test in order to assess the probative value of the elements that led the prosecutor to ask the judge to issue and a measure restricting personal freedom.
should be added that, if the demand and application of personal protective measures - such as the subject of court proceedings - with confidentiality requirements for further investigation and possible reasons of confidentiality are totally failed in relation to communications form the basis of the restrictive measure, the content of which was revealed following the presentation by the prosecutor, in support of the request, transcripts made by the judicial police.
The lesion of the right guaranteed by the defense. 24, second paragraph of the Constitution is thus presented in its entirety, since the restriction on access to records is not balanced by any other interest recognized by the law of the case. Also affected must be considered the principle of equality of parties before the court under Article. 111, second paragraph of the Constitution.
4. - Full protection right of defense and the principle of equality of the parties in the process requires a decision of acceptance of this Court, limited to the absence of provision in art. 268 cod. proc. pen., Defenders of the right of direct access to the records, getting the transposition on magnetic tape.
The larger solution proposed by the court, referring to a filing process after execution of the enforcement action, it is not necessary in the particular context at issue here, for the guarantee of the interest protected by Article defensive. 24, second paragraph of the Constitution, and therefore can not be accepted. A prediction of filing specifically refers supervision incident, and asked only to communications to the subject of the request, would result in a new procedural rule and in many ways unusual, starting with the fact that performance relates to acts which are not presented to the court, and would be supervised by a person other than the court itself, which provides directly, according to the provisions of paragraph 3 of art. 293 cod. proc. pen., To file documents on which it based its decision.
constitutionally protected interest of the defense is to know the records at the base of the measure carried out in order to effectively bring all remedies under the rules of procedure. In the case that such records are not included among the documents sent with the request order, the self-defense claim of access to direct evidence of intercepted communications is not satisfied by the right of access to the documents filed at the Court, according to the third paragraph of art. 293 cod. proc. pen. After the implementation of the restrictive measure. Hence the interest in question can be provided by the forecast - also proposed by referring to the alternative - the defenders of the right to access records in the possession of the prosecutor.
This right should be reflected by the possibility of obtaining a copy of the audio track, according to the principle already stated by this Court in its Judgement No 192, 1997, regarding the applications lodged at the court after the service or execution supervision order.
The absence of a legislative provision to that effect is due to unconstitutionality of the contested provision. Neither would be sufficient to ensure full compliance with art. 24, second paragraph of the Constitution, recourse to Article. 116 cod. proc. pen., Which governs the release of copies of pleadings. That provision in fact, considered together with art. 43 of the implementing provisions of the Code of Criminal Procedure, not attributes - as the Court's legitimacy - an unconditional right to the party concerned to obtain copies of the documents, but only a mere possibility, since the request pursuant to paragraph 2 of that article shall be assessed by the court. This forecast does not make sense if it had a right to release the full copy. Confirmation of this interpretation is taken from the cited art. 43 disp. att. cod. proc. pen. Which, by providing that the authorization of the court is not required in cases where the applicant has expressly recognized the right to receive the copy, implicitly rejected the possibility that there is a general and unconditional right to obtain a copy of the pleadings (in this sense the Joint Sections of the Court of Cassation, Judgement No. 4 of 1995).
the face of this jurisprudence is necessary to state clearly that in this case the legislation at issue in these proceedings, referring to the protection of the right of defense in regard to a measure restricting personal liberty has already been executed, the defenders should have the right unconditional access, upon their request, the records form the basis of the request of the prosecutor and not submitted in support of the latter, since replaced by the transcripts, including summary executions, carried out by the police. The right
access implies, as a natural consequence, to achieve the transposition on magnetic tape recordings themselves.
for these reasons
declares the constitutional illegitimacy of article. 268 of the Code of Criminal Procedure, in so far does not provide that, after notification or enforcement of the ordinance provides for a precautionary measure staff, the defender can get transposed onto magnetic tape recordings of conversations or communications intercepted, used to for the adoption of protective measure, even though not filed.
Così deciso in Roma, nella sede della Corte costituzionale, Palazzo della Consulta, l'8 ottobre 2008.
F.to:
Giovanni Maria FLICK, Presidente
Depositata in
0 comments:
Post a Comment