COMPUTER CRIMES
Court of Cassation: no international rogatory if foreign website is made inaccessible only from Italy.
In its judgment No. 22673 of 24 May 2023, the Supreme Court of Cassation ruled that it is lawful to obscure the domain and block the Italian server with reference to a website belonging to a Swiss company that advertises surety bonds without the prescribed authorisation also to Italian customers.
The Court of Como rejected the suspect's petition against the preventive seizure order issued by the GIP, concerning the website where he and other suspects advertised, also to Italian customers, the financial activity of issuing surety guarantees without the authorisation required by Article 107 of Legislative Decree No. 385/1993, thus committing the offence under Article 132 of the same Decree. For this reason, the GIP had ordered the preventive decree through the obstruction and disabling of the website domain and of the tools that were in any case suitable to allow access from Italy.
The suspect challenged the decree by means of an appeal in cassation, complaining that the website in question was registered in Switzerland, and therefore the seizure should have been carried out only with the prior activation of the international rogatory procedure, and alleging the violation of the principle of the necessary proportionality of the measure at issue, which had ordered the complete obscuring of the website and therefore also of pages that had nothing to do with the contested activity.
The Court of Cassation rejected the appeal.
With regard to the first grievance, the Court of Appeal observes that the measure was limited to making the pages of the site inaccessible from Italy, acting only on the Italian server, so there was no need for an international rogatory for this purpose.
As regards, instead, the second ground of appeal, the Court of Cassation recalled that in the matter of preventive seizure, the principle of proportionality requires the judge to give reasons as to the impossibility of facing the danger of aggravating or prolonging the consequences of the offence or of facilitating the commission of other offences by resorting to less invasive measures or by limiting the object of the seizure or the constraint imposed by it in such a way as to reduce the impact on the rights of the person concerned.
With reference to this, the Court of Appeal noted that the contested measure adequately motivated the precautionary requirements underlying the obscuring of the pages of the website, emphasising that the company's main activity, i.e. the provision of surety guarantees, was already apparent from its name. As the Judges stated, "a partial blackout of the site would not have been sufficient to avoid the risk of commission of the criminal activity through it".
(Source: SEAC ALL-In Giuridica - Author: la Redazione - Ownership of contents: SEAC Giuridica)
The Court of Como rejected the suspect's petition against the preventive seizure order issued by the GIP, concerning the website where he and other suspects advertised, also to Italian customers, the financial activity of issuing surety guarantees without the authorisation required by Article 107 of Legislative Decree No. 385/1993, thus committing the offence under Article 132 of the same Decree. For this reason, the GIP had ordered the preventive decree through the obstruction and disabling of the website domain and of the tools that were in any case suitable to allow access from Italy.
The suspect challenged the decree by means of an appeal in cassation, complaining that the website in question was registered in Switzerland, and therefore the seizure should have been carried out only with the prior activation of the international rogatory procedure, and alleging the violation of the principle of the necessary proportionality of the measure at issue, which had ordered the complete obscuring of the website and therefore also of pages that had nothing to do with the contested activity.
The Court of Cassation rejected the appeal.
With regard to the first grievance, the Court of Appeal observes that the measure was limited to making the pages of the site inaccessible from Italy, acting only on the Italian server, so there was no need for an international rogatory for this purpose.
As regards, instead, the second ground of appeal, the Court of Cassation recalled that in the matter of preventive seizure, the principle of proportionality requires the judge to give reasons as to the impossibility of facing the danger of aggravating or prolonging the consequences of the offence or of facilitating the commission of other offences by resorting to less invasive measures or by limiting the object of the seizure or the constraint imposed by it in such a way as to reduce the impact on the rights of the person concerned.
With reference to this, the Court of Appeal noted that the contested measure adequately motivated the precautionary requirements underlying the obscuring of the pages of the website, emphasising that the company's main activity, i.e. the provision of surety guarantees, was already apparent from its name. As the Judges stated, "a partial blackout of the site would not have been sufficient to avoid the risk of commission of the criminal activity through it".
(Source: SEAC ALL-In Giuridica - Author: la Redazione - Ownership of contents: SEAC Giuridica)
