Casalesi in Veneto, wiretaps never heard by the detained defendant: the issue reaches the Constitutional Court.

Can a defendant be convicted based on wiretapped telephone conversations and conversations he never personally heard during the trial? This question is the focus of a delicate issue of constitutionality that will be debated by the Constitutional Court and which, if upheld, could impact the way the right to a fair hearing is exercised in trials based on wiretaps.

The issue was raised by Dario Vannetiello, a cassation lawyer from the Naples Bar Association, in the context of the major trial concerning the Casalesi clan's Camorra infiltration in Veneto. The issue arose from the defense of Luciano Donadio, an entrepreneur deemed by the judiciary to be the clan's top contact in Veneto and sentenced to 41 years and 4 months in prison for 63 crimes, later reduced to 30 years under the moderation principle.

The crux of the matter: can detainees truly defend themselves without listening to wiretaps?

The issue raised by the defense arises from the current provisions of Articles 268, paragraph 6, of the Code of Criminal Procedure and Article 89-bis of the implementing provisions of the same code. The legislation allows defense counsel to visit court offices to listen to wiretaps, but does not provide a similar right for defendants in detention.

This distinction can be particularly important in more complex proceedings, where wiretaps constitute a significant, if not decisive, part of the evidentiary material.
In major trials, in fact, thousands of wiretaps can be recorded. Hours and hours of telephone and environmental conversations must be listened to, interpreted, and placed in the correct context.

And the content of the recordings themselves can contain elements that aren't always immediately understandable to everyone: local dialect, slang expressions, nicknames, references to personal events, allusions, and sayings whose meaning can only be fully grasped by those who know those people and situations directly.

Hence the question posed by the defense: if the defendant is detained and cannot personally listen to the recordings, how can he fully exercise his right to challenge the evidence?

The issue raised in the Venetian maxi-trial

This is the issue to which lawyer Vannetiello drew the attention of the Court of Cassation in the proceedings involving Donadio.

The defense argues that the inability of the detained defendant to directly listen to the wiretaps used against him could lead to a restriction of the right to defense guaranteed by the Constitution.

Therefore, it's not just a matter of determining who actually has access to the audio files stored in the courthouse. The issue involves the relationship between knowledge of the evidence and the defendant's actual ability to communicate with his or her lawyer, point out any errors in interpretation, provide explanations on the meaning of certain sentences, and challenge the prosecution's reconstruction.

In a wiretapped conversation, moreover, the meaning of a word can depend on the context; a nickname can identify a different person than the one investigators hypothesize; a dialect expression can take on a completely different meaning if interpreted according to the canons of the Italian language. These are elements that, according to the defense's argument, the defendant could verify directly by listening to the original recording.

The Court of Cassation postpones the decision

The matter was brought before the Fifth Criminal Section of the Court of Cassation. The complexity and relevance of the issue prompted the judges to postpone the decision until October 6th.
Meanwhile, however, a substantially similar issue has also been raised by the preliminary hearing judge of the Trento Court in a different criminal proceeding, in which the presence of conversations in a foreign language is of particular significance.

It is precisely this second proceeding that paved the way for the Constitutional Court's judgment.

The Trentino case and Vannetiello's intervention

The constitutional question raised by the Trentino judge has indeed reached the Constitutional Court. And the overlap between the legal issue and the one identified by Donadio's defense has prompted attorney Vannetiello to intervene before the Constitutional Court, arguing the illegitimacy of Articles 268, paragraph 6, of the Code of Criminal Procedure and Article 89-bis of its implementing provisions.

The debate, therefore, no longer concerns only the procedural position of a single defendant. The Constitutional Court's decision could establish a principle that will impact a much broader range of proceedings.

A decision destined to go beyond the confines of the single process

If the Constitutional Court were to find the above-mentioned objections well-founded, the situation could change radically for detained defendants involved in trials in which wiretaps constitute relevant evidence.
This would pave the way for recognizing the right of a defendant in prison to directly listen to conversations used against him, overcoming the current legislation that allows this activity to the defense but does not expressly recognize the same possibility for a detained defendant.

What's at stake, therefore, is broader than the Luciano Donadio case and the Veneto mega-trial. What's at stake, ultimately, is the very manner in which a detained defendant can confront one of the most invasive and, at the same time, most important forms of evidence in contemporary criminal proceedings.

The question posed by Vannetiello thus raises a fundamental question before the Constitutional Court: how effective can the right to defense be when the defendant cannot directly hear the audio evidence on which the prosecution is seeking, and the judge orders, a conviction?

The Constitutional Court's response could mark a significant step in the delicate balance between investigative needs, the procedural use of wiretaps, and the defendant's full participation in his own defense.