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 >>>

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:
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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 >>>