It seems that no one likes Legislative Decree 216/2017. In fact, I share the reasons of all the skeptics.
We criminal lawyers see the right to defense as seriously violated because we cannot have a copy of all the wiretaps but can only consult those deemed relevant by the Judicial Police. And what if among those that the Police deem "irrelevant" for the purposes of the investigation there were elements useful to the defense? Moreover, the term for consulting is limited (10 days extendable up to 30) and certainly, in proceedings with many files and more suspects, it is not enough. To find wiretaps useful to the defense, more time is needed. All wiretaps entered in the computer archive can be listened to while only those acquired can be copied. So it is a problem of timing and effectiveness of the defense's knowledge. Another negative element is that if the conversation between the lawyer and the client is intercepted by mistake, it is true that it will not end up in the newspapers, but it will be listened to by the Judicial Police who will be able to report the defense strategy of the defendant to the prosecutor. It would have been appropriate, instead, to provide for the "interruption" of the wiretap accidentally intercepted between the client and the defense. But this was not the case.
The prosecutors complain about the excessive power of the police in the selection of wiretaps. Only if they are considered relevant can they be transcribed, the others will end up in a confidential archive whose responsibility will be the prosecutor. But without indicating a minimum content of the wiretaps considered irrelevant, it will be impossible for the prosecutor to control the work of the police. Perhaps it would have been better to give the judicial police the power to select the “manifestly irrelevant” wiretaps.
Journalists, on the other hand, see the new procedure that places news of public interest in the “reserved archive” as a gag for the press. Finally, they do not like the circumstance that from 26 January 2019 (the day this rule will come into force, unlike the rest of the reform that will be effective from 26 July 2018), they will be able to obtain a copy of the precautionary orders, only after notification to the parties. I must say that I, on the other hand, like this last provision…
