Errors of interpretation and margins of error in the analysis of telephone cells.
Download the pdf of Sentence no. 12771 of the Criminal Court of Cassation, section V, of 14/02/2023 at the bottom of the page
In the context of the recent ruling of the Criminal Court of Cassation, section V, of 14/02/2023, (ud. 14/02/2023, dep. 27/03/2023), no. 12771, the question of the probative value of connecting a mobile phone to a telephone cell was raised.
According to the Court, that circumstance cannot in itself constitute sufficient evidence for a conviction, as it would infringe the principle of innocence, which is fundamental in the legal system. In fact, no one can be considered guilty unless there is certain evidence or clues so serious and consistent as to make the defendant’s responsibility ascertained, beyond any reasonable doubt.
In the specific case covered by the ruling, the Magistracy, in the second instance, had confirmed the responsibility of a man for the crimes of aggravated robbery and manslaughter, imputing to him the participation together with other subjects.
However, the man appealed to the Supreme Court, basing his defense on four grounds:
- Failure to state reasons
- violation of the law and lack of motivation with regard to manslaughter,
- violation of art. 116, paragraph 2, of the Criminal Code and lack of reasoning with regard to the anomalous concurrence, and
- violation of art. 81 para. of the Criminal Code and lack of reasoning regarding the denial of generic mitigating circumstances and the redetermination of the sentence.
The appeal was considered well-founded, especially in relation to the first plea, considered as the most relevant of the complaints presented. In fact, according to the appellant, the motivation of the sentence was apodictic and this was also recognized by the Supreme Court.
In particular, it was highlighted that each mobile phone emits a signal that connects to the nearest telephone cell during a call.
Each cell covers a certain area of the territory and contains an antenna that receives the signal of the nearby phone. Due to the different signal strengths received, it is possible to determine the approximate location of the phone emitting the signal.
However, the exact location of the phone within the cell cannot be determined precisely. In addition, in situations of telephone overload, the phone can hook up to a contiguous cell, which may be freer. Therefore, the information provided by the signal received by the cell does not allow a precise location of the user associated with a mobile phone, and there may be margins of error ranging from hundreds of meters to kilometers.
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In the light of this technical reconstruction, the Court of Appeal made an error in interpreting the rule in inferring the presence of the defendant at the scene of the crime only because his mobile phone had been hooked up for a short period to a telephone cell near the event. Not only could the telephone number belong to other people, but even this circumstance did not constitute certain proof of the man’s responsibility.
As a result, the second instance sentence was quashed and the case was referred for a new trial to another Section of the Court of Appeal with territorial jurisdiction. This important pronouncement of the Court of Cassation underlines the importance of an accurate and detailed analysis of the evidence, avoiding basing judicial decisions on evidence that may present significant margins of error and not provide absolute certainty.
