Limits on Trojan Usability for Common Crimes

1. The facts

   The case stems from an investigation by the Public Prosecutor's Office into suspected corruption in judicial acts and trafficking of illicit influence. According to reports from Il Dubbio and Guida al Diritto of Il Sole 24 Ore, investigators had obtained authorization to plant a computer interceptor in a suspect's smartphone. The GIP had issued a generic authorizing decree, allowing the recording of conversations between present parties wherever the phone was located. However, the Trojan recorded dialogues that took place inside private offices and homes, constituting interceptions in private dwellings.

   The procedural background involved an appeal to the Court of Cassation after the Review Court had rejected the plea of inadmissibility raised by the defense. The issue reached the Sixth Criminal Section, called to decide whether the reform that extended the Trojan to crimes by public officials also eliminated the obligation to indicate the locations of home interceptions. The decision overturned the lower court's ruling, annulling the order with remand and establishing the prohibition of unlimited itinerant use of the Trojan for common crimes.

2. 

   The relevant legal framework

   The normative core lies in Art. 267 c.p.p., which governs the statutory requirements for authorizing interceptions. For common crimes, the decree must state the reasons for urgency and the indispensability of the measure, while respecting the limits set by Art. 266, paragraph 2, c.p.p. for home interceptions. Art. 266, paragraph 2-bis c.p.p., introduced by recent reforms, permits the use of the Trojan for corruption offenses, but jurisprudence clarifies that this derogation is not absolute. Outside organized crime offenses (Art. 51 c.p.p.), the constitutional protection under Arts. 14 and 15 of the Constitution remains intact, protecting the dwelling as an extension of personal liberty. Violation of these guarantees entails the inadmissibility of evidence under Art. 191 c.p.p., preventing the court from basing its decision on data acquired in breach of statutory rules.

3. Case law analysis

   Case law from the Court of Cassation has reaffirmed the exceptional nature of computer interceptors. In the past, the Joint Sessions had already distinguished between organized crime offenses and other crimes, establishing that only for the former can the Trojan function as a universal bug without spatial limitations. For common crimes, the prevailing orientation requires the GIP's authorizing decree to specify the places where criminal activity is reasonably presumed to be taking place. The Supreme Court clarified that extending Trojan use to offenses against the Public Administration does not equate corruption to organized crime from a procedural standpoint. The fundamental principle is that the judicial authority cannot delegate the selection of interception locations to the judicial police or the software, but must maintain prior judicial control over any intrusion into domestic privacy.

5. Analysis drafted and verified with edit.legal

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8. What it teaches professionals

   1. Verification of the decree: carefully examine whether the GIP's authorizing order specifies the interception locations in cases involving common crimes.
   2. Timely objection: promptly raise the inadmissibility of interceptions as soon as the domestic nature of the recording location is identified.
   3. Analysis of metadata: request access to and forensic examination of system logs and geolocation data to demonstrate that the suspect was inside a private dwelling during the recordings.

References: Art. 266 c.p.p.Art. 267 c.p.p.Art. 191 c.p.p.Art. 14 CostituzioneArt. 15 Costituzione

Editorial oversight: Avv. Federico Papa·ICAMUpdated 19 September 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