With an order of application of precautionary measures, issued by the judge for the preliminary investigations of the Court of Vibo Valentia, on 23/11/2022 it was carried out the application of precautionary measure in prison for Giuseppe Cacciola of Rosarno, for the crime of drug dealing and for the crime of attempted extortion against Labruna Micci.
Cacciola had been sentenced both at first instance and appeal for the contested crimes, therefore there was the “double compliant” CD sentence.
The second criminal section of the Supreme Court of Cassation, with sentence issued on April 15, 2025deciding on the appeal filed by the lawyer Mariangela Borgesedefender of Mr. Cacciola, and in full acceptance of the same, canceled the sentence issued by the Court of Appeal of Catanzaro without postponement which had confirmed the first instance sentence of the Court of Vibo Valentia and acquitted Cacciola from all the crimes contested.
The sentence fully accepted the appeal by cassation by pronouncing in an entirely innovative way on the question of pathological unusabilitydeduced by the lawyer Borgese, relating to the acquisition of the contents of telephone conversations on Internet applications, in the absence of express decree of urgent seizure by the prosecutor and subsequent decree of acquisition by the judge.
This question of pathological unusability of the prohibited and unconstitutional proof had already been deduced by the lawyer. Borgese in the previous degrees of judgment, which had recalled the orientation of the jurisprudence of the European Court of Human Rights and in particular of the judgment of the great section of the Court of Justice of the European Union of 2 March 2021, which by pronouncing on the prejudicial postponement formulated by the Estonian Supreme Court regarding the interpretation of art. 15, par. 1, dir. 2002/58/EC – relating to the processing of personal data and the protection of private life in the electronic communications sector – as amended by Directive 2009/136/EC of the European Parliament and of the Council, of 25 November 2009 – has outlined a series of conditions to which the Member States must subordinate access to the data kept by the suppliers by the public authority for the preventive, assessment or repression of the crimes, in order to balance with this need as opposed to protect the right to confidentiality.
The Court of Justice, in particular, deepening the principles already established previously in the field of Data Retection (Cortegiustizia, Grand Section, 21 December 2016, Riunitec-203/15 and C-698/15 causes, Tele2 Sverige AB; Court Justice, Grand Section, 8Aptile 2014, Riunitec-293/12EC-594/12, Digital Rights Ireland). read in the light of articles 7, 8 and 11 as well as of art. 52, paragraph 1, of the Charter of Fundamental Rights of the European Union, hinders of national legislation that allows public authorities to access traffic data or data relating to the location, suitable for providing information on communications made by a user of an electronic communication means or, on the location of the terminal equipment used without the prior authorization of an independent and third judicial authority compared to the parties, public and private.
The judges of merit of I and II degree had rejected the question of unusability of the test and had condemned Cacciolto.
The Court of Cassation, however, with innovative orientation adhering to the European jurisprudence, accepted the appeal precisely in relation to the profiles of unusability of prohibited and unconstitutional proof since acquired in violation of art. 15 Constitution and canceling the sentence without postponement has acquitted cacciola .