Cassation on WhatsApp: Seizure vs Interception

1. The fact

   The case stems from a Judicial Police operation which, as part of an investigation into ordinary crimes, proceeded to seize the smartphone of a suspect. According to reports from Cassazione.net and ItaliaOggi, officers extracted WhatsApp messages from the device using the so-called screenshot technique, inserting them directly into investigative reports without a specific Public Prosecutor's decree aimed at the seizure of correspondence.

   The case reached the Cassation Court after the defense raised an exception regarding the inadmissibility of such acquisitions, arguing that instant messaging cannot be downgraded to mere material documents. The procedural stage is that of the judgment of legitimacy, where the judges were called to establish whether consulting an archived chat is a simple technical operation on a physical medium or if, conversely, it represents a violation of the secrecy of correspondence in the absence of reinforced procedural guarantees.

2. 

   The norms at play

   The regulatory framework revolves around three fundamental pillars.

   1. Article 15 of the Constitution guarantees the inviolability of the freedom and secrecy of correspondence, requiring that any limitation occurs only by a reasoned act of the judicial authority.
   2. Article 254 of the Code of Criminal Procedure governs the seizure of correspondence, requiring a specific decree authorizing the apprehension of messages, even electronic ones, if they retain a character of current relevance and confidentiality.
   3. Article 234 of the Code of Criminal Procedure concerns documentary evidence: the prosecution's thesis, now outdated, sought to frame WhatsApp messages in this category to facilitate their acquisition as static data.

   The distinction is crucial because non-compliance with the forms prescribed for correspondence results in pathological inadmissibility under Article 191 c.p.p., preventing the judge from basing the decision on those elements of proof acquired in violation of the law.

3. What jurisprudence says

   The jurisprudence of legitimacy has recently made a clear change of course. While in the past messages saved in the phone's memory were likened to physical documents, the judges have clarified that the digital nature of the medium does not negate their status as correspondence. The Court ruled that constitutional protection does not cease upon receipt of the message but remains as long as the communication retains a connection with the private sphere of the communicants.

   Particular emphasis was placed on the practice of screenshots taken by the police. Jurisprudence has specified that such a method of acquisition, if not supported by a reasoned decree from the Public Prosecutor identifying the need to access correspondence, violates defensive guarantees. Furthermore, the difference between seizure (which concerns existing data) and interception (which concerns real-time flow) is reaffirmed, confirming that for archived data, the forms of seizure of correspondence are still required.

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8. What it teaches professionals

   1. Dogmatic distinction: Lawyers must always verify if the acquisition of messaging was treated as a document or as correspondence, promptly raising the objection of inadmissibility.
   2. Decree control: It is essential to examine the reasoning of the PM's decree, verifying that the search and apprehension of data were expressly authorized for the specific messaging function.
   3. Evidence integrity: Challenging screenshots must be based not only on the violation of privacy but also on their unsuitability to guarantee the unchangeability of digital data compared to a standard forensic copy.
   4. EU updates: It is necessary to monitor the evolution of European jurisprudence, which tends to require authorization from a third-party judge even for the prosecution's access to mobile phone data.

References: Articolo 15 CostituzioneArticolo 254 c.p.p.Articolo 234 c.p.p.Articolo 191 c.p.p.Articolo 266-bis c.p.p.

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