Criminal Court of Cassation: Limits on the Use of Trojan Horses

1. The facts

   The case arises from an investigation conducted by the Public Prosecutor's Office regarding alleged episodes of corruption for the exercise of functions and for acts contrary to official duties. According to reports from national newspapers such as Il Sole 24 Ore, investigators had obtained authorization to install an IT captor on a suspect's smartphone to monitor movements and conversations. During the investigations, the device recorded ambient dialogues occurring within places qualified as private residences, including private offices not open to the public and homes. The Review Court initially confirmed the legitimacy of the precautionary measure based on such evidence, believing that the weight of the evidence of corruption justified the electronic intrusion. However, the defense challenged the decision before the Court of Cassation, pleading the inadmissibility of the results captured in the domicile, since no criminal activity was ongoing at the time of recording (lack of flagrante delicto) and the contested crimes did not fall within the scope of structured organized crime. The proceedings reached the Court of Cassation for a legality review on the correct application of procedural rules regarding ambient wiretapping.

2. 

   Applicable legal framework

   The heart of the matter lies in the coordination between different regulatory sources.

   1. Article 14 of the Constitution establishes the inviolability of the domicile, allowing inspections or seizures only in cases provided by law and with the guarantees prescribed for personal liberty.
   2. Article 266, paragraph 2-bis, of the Code of Criminal Procedure regulates the insertion of the IT captor on mobile devices for wiretapping between those present.
   3. Article 267, paragraph 1, of the Code of Criminal Procedure imposes an insurmountable limit for common crimes: wiretapping in a private residence is permitted only if there is a well-founded reason to believe that criminal activity is taking place there.
   4. Decree Law 152/1991 introduces a derogation for proceedings relating to organized crime offenses, allowing wiretapping in the domicile even in the absence of flagrante delicto, but this derogation does not automatically extend to crimes against the Public Administration not aggravated by mafia purposes.

3. What the case law says

   The case law of the Supreme Court has clarified that the Trojan must be considered an exceptional tool due to its ability to follow the subject in every moment of daily life. According to established jurisprudence, corruption crimes, despite their extreme social gravity, cannot be equated sic et simpliciter with organized crime for procedural purposes, unless a stable and structured associative bond emerges. The judges specified that the protection of privacy and confidentiality in the domicile prevails over the need to seek evidence if the restrictive requirements of flagrante delicto are not met. It was also reaffirmed that the burden of verifying the place where the recording occurs lies with the judicial police and the public prosecutor, who must remove from the evidence any material acquired in violation of the spatial limits imposed by the authorization decree for ordinary crimes.

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8. What it teaches professionals

   1. Always check the authorization decree to see if automatic inhibition of the captor near GPS coordinates corresponding to private residences was provided.
   2. Immediately plead inadmissibility during the review stage to prevent tainted evidence from crystallizing the precautionary framework.
   3. Carefully analyze the start and end recording logs to cross-reference times with the suspect's geographical location.
   4. Rigorously distinguish between the final crime (corruption) and the means crime (association), as only the latter allows for overcoming the barriers of the domicile.

References: Articolo 14 CostituzioneArticolo 266, comma 2-bis, c.p.p.Articolo 267 c.p.p.D.L. 152/1991Sentenze della Cassazione Penale

Editorial oversight: Avv. Federico Papa·ICAMUpdated 9 November 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction