RICERCA ITALIANA     

Privacy and the Criminal Process

Università degli Studi di Firenze

Abstract

Firstly the matter concerns the classification of the data ( personal, judicial etc.) in connection with the techniques of acquisition for preventive, repressive or defensive purposes. This part of the research should take into consideration the results obtained in foreign legal systems ( as American, English and German ones) that show a wide advancement of privacy legislation and opinions of academic experts.
Such effort to rebuild the discipline should be followed with the study of the legislation and the concrete working of data banks. Consequently, we should distinguish data banks built in Italy for judicial and investigating purposes (as, for example, the data bank existing in "Ministero dell'interno" since 20 years and the data bank close to be built in "Procura nazionale antimafia") and data banks built for other purposes but frequently used by people involved in the trial ( as the electronic files existing in the office of public administration or private companies like phone services or hotels). A separate attention needs the European data banks: for example Europol data bank, very important for its rule in the fulfillment of the "third pillar".
The study of data banks is not limited to a simple description of their concrete working. The research must aim to highlight the coherent or - on the other hand - the incoherent aspects of the application of electronic files with regard to the right of privacy, as it results from Italian legislation, European law and international source of law ( as § 8 of the European Convention of Human rights and § 17 of the European Covenant of Civil and political rights).
Formalities of the research: the four teams will bind themselves to get together in periodical meetings - with two- monthly frequency at least - in order to verify the improvements of the research and promote animated discussions and mutual aid. It's impossible to realize during a seminarian debate around a table.
The national coordinator pledge himself to publish progressively the results of the research on the web site http://web.unife.it/progetti/crimen/ .
The individual contributions of the local teams will be summarized in a final document, wrote by the national coordinator. In this document will be marked out the guide lines for an hoped procedural reform, able to include in the code of criminal procedure the right to privacy. Where it's possible we try to suggest normative solutions, taking into account the comparative experience too. In particular, the attention for the legal systems of the European union is justified for an important reason: the right to privacy, more than others, is able to fulfill the "harmonization", necessary for the realization of the . <<<

Principal Investigator

Renzo ORLANDI Università degli Studi di FIRENZE

Research Objectives

In current fast computers era, the individual right to privacy has obtained an understandable importance also for the aspects relating to the prevention and the ascertainment of crimes.
The possibility, offered by computers, to collect, file, change and process easily an enormous quantity of data, in a short time, has contributed to change the techniques of investigation; but, at the same time, it made very "weak" the position of people put down in the Records Offices of social, economical and business companies . The Privacy Law, passed in 1996, contemporaneously with the entrance of Italy in the Schengen area, reflects this enlargement of importance. This law was recently replaced by the Consolidation (testo unico) on data protection passed in 2003 ( d.lgs. 196/2003). In both normative tests the right of privacy is stated in a peremptory manner as for the fundamental rights. So, are we in front of a new right? Must Penal procedure takes into consideration the right of privacy when it gives faculties to people involved into investigations? Dispelling this doubt is one of the first aim of our research. We must identify the nature and the caliber of this right: is it a natural right, connected with the general prevision of §2 of Italian Constitution? Or is it a simple right ( comparable, for example, with possession or property)?The answer of these questions is a preliminary point for the solutions of procedural cruxes of this research, concerning:
a) Conditions and presuppositions in presence of whom is lawful collect and process data for preventive and repressive purposes
b) Powers and competences of person involved in the trial (police, public prosecutor, judge and lawyers )concerning the collection and the application of personal data.
The aim of this research should be synthesize in three points:
1. it wants to analyze the criminal procedural rules, currently in force, concerning the conditions ( and the limits) to collect and use personal data
2. it wants to verify ( taking into consideration the European law and the comparative law) if the right of privacy must be considered a fundamental right of people (human dignity)
3. at the rate of the results fulfilled at the previous point we want to criticize the Italian legislation currently in force, pointing out inadequacies and incoherencies and suggesting additional touches and modifications. <<<

Timescale

24 months

National and international background

The protection of individual privacy from diffusion and treatment of personal data was dealt in delivery, in comparison with American and north -European legal systems.
In the last decade, the awareness of "legal status" worthy of being protected encouraged law-making and decisions, needed of being checked and analyzed.
Moreover to the untimeliness of legislation corresponded a general carelessness of the experts of penal procedure. They haven't paid attention to the connection between the regulation of privacy and criminal ascertainment.
Nevertheless, for finding the fact, people involved in the criminal trial have to collect and treat personal data, frequently gathered in electronic files.
The debate lying beneath this theme is originated from the studies concerning the right to privacy. In particular, it's necessary to recognize and sanction a thorough right to privacy understood -according the well known formula - as the right to be alone. This formula was upheld, for the first time in 1890, by two American experts ( WARREN and BRANDEIS) in a report edited by the Harvard Law Review (vol. IV, nr. 5). Anyway also in the United States of America it was necessary waiting for several decades before the right of privacy, with its implications and characteristics, get an importance comparable with the modern one. The turning point happened at the end of the Sixties of the last century, when it was clear by then ( MILLER) that the evolution of modern technology was able to cause a sort of assault on privacy. This assault was so violent that a writer (ROSEMBERG) was obliged to "verify" the death of privacy.
Also at that time, academic commentators were already conscious of the risks connected with the resort to data processing and data banks. They can cause a great movement of information completely out of control. The communication with computers has come up again the problem concerning the instantaneous and global diffusion of personal data. The data can be kept and treated easily and for disparate aims (SCOGLIO). So in those days it started to be pointed out, in a more problematic way, the question, very modern nowadays, concerning the . In other words the information retrieval system is the possibility to rebuild from data bases individual and social activities, using information apparently insignificant or lacking in mutual relationship (MILLER). This system, in concomitance with a very fast development of computing technology, has assumed more and more alarming dimensions (it is still admitted Cass., 27 may 1975, n. 2129): the creation of informatics network, more and more sophisticated, has increased, in an exponential way, the capacity to collect and classify data and information. Moreover it has simplified the transfer and the mutual exchange (DE GIACOMO). The impact of these innovations on the criminal ascertainment is clear: the building of data banks for judicial purposes and the possibility to enter inside data bases, existing in different social areas (public and private) can be very efficacious for inquiring purposes. Consequently the experts of penal procedure must focus their attention on it.
In order to analyze limits, controls and guarantees concerning the power to access to personal data, it's necessary - first of all - highlighting the exact borders of the rights involved. In parallel we should compare the rights mentioned with the opposite requirements of criminal trial.
We should remember that, with the evolution of modern technology, also jurisprudence, judeges and legislation have been starting to reflect on the increasing number legal situations worthy of protection (RODOTA', WESTIN). From the simple necessity to protect the right to be alone, the concept of privacy has dilated its borders, so that now it includes several situations (BONETTI, CATAUDELLA) as: the right of private correspondence, the right to remain anonymous, the right to one's own likeness, the right to one's own intimacy and the right to control private information.
The problem to give a definition to the rights connected with the general concept of privacy -including their relationship and their position in the hierarchy of the sources of law ( MODUGNO) -was treated till now in the bosom of different disciplines respect to the procedural ones (as Constitutional law, Legal theory, Philosophy of law, Jurimetrics , Civil and Administrative law). On the contrary, in the field of penal procedure, the question - regarding the protection of a person from the intervention of the public authority- has gone on turning round the traditional concepts as personal freedom, the right to private correspondence, immunity of domicile. However these concepts risk to appear inadequate to satisfy the new requirements of procedural protection stated by the right we talking about.
Very important is also the paragraph concerning the theme of Genetics. The Italian Constitutional Court (Case n. 238/1996) stated the problem ( not still regulated by the Italian legislator) concerning the normative regulation of coercive blood test, necessary for Genetic ascertaining. Actually the limitation of personal freedom necessary to take a blood sample is just one of the aspects of this new (and effective) technique of investigation. An other aspect, very important, connected with the right to privacy, concerns the DNA analysis. That's because DNA can disclose several secrets concerning the physical constitution of a man ( as, for example, the predisposition to particular diseases). So the medical examination of DNA - if it is not regulated so as to avoid the access to this kind of information - could consent abuses easy to imagine. The experiences developed in other Countries, where - long before than in Italy - the protection of personal data gathered an autonomous dignity, represent very important and useful models (CAHALTON, CERRI, DELFINO, SOMMA).
Very precious is the analysis concerning the evolution of the German legal system where - to depart from the historical decision of Bundesverfassungsgericht ( sentence of 15 December 1983, s.c. Volkszahlungsurteil) - was recognized as fundamental right the s.c. informationelles Selbstbestimmungrecht ( i. e. the right of a man to arrange autonomously his own information). This decision obliged a detailed revision of procedural law with regard to the techniques of investigation concerning the collection, treatment and processing of personal data (ORLANDI, SIMITIS, SCHLINK).
In consequence to the mentioned decision of Bundesverfassungsgericht, in Germany, has been developing a theory that considers the informationelles Selbsbestimmungsrecht the centre of the law of evidence (AMELUNG). That's because the criminal ascertainment is based on the information concerning the defendant.
At the moment, the theoretical contribution concerning the application of data banks for purposes of prevention and repression is still incomplete.
This part of the research should take into account the (national and European )legislations on data banks. We must get information to fulfill the aims indicated in the previous point directly from web sites of Europol, Italian Police, Authority of privacy and so on. <<<