Generally speaking, electronic messages - e-mails, SMS, WhatsApp and the like - represent, per se, a form of correspondence protected by Italian Constitution.
Given that that of "correspondence" is a broadly inclusive concept, apt to embrace any communication of human thought (ideas, intentions, feelings, data, news) between two or more determined persons, implemented in a manner other than in-person conversation, this Court has repeatedly affirmed that the protection granted by Article 15 Const. - which ensures to all citizens the freedom and secrecy "of correspondence and all other forms of communication," allowing its limitation "only by reasoned act of the judicial authority with the guarantees established by law" - is irrespective of the characteristics of the technical means used for the purpose of transmission of thought, "thus opening the constitutional text to the possible emergence of new means and forms of confidential communication" (Judgment No. 2 of 2023).
The guarantee extends, therefore, to any means that technological evolution makes available for communicative purposes, including electronic and computerized means, which were unknown at the time the Constitutional Charter was enacted.
Electronic mail and messages sent through the WhatsApp application (belonging to the so-called instant messaging systems), therefore, fall squarely within the sphere of protection of Article 15 of the Constitution, appearing entirely comparable to closed letters or tickets.
The confidentiality of communication, which in traditional epistolary correspondence is guaranteed by the insertion of the paper envelope or ticket in a sealed envelope, is here ensured by the fact that e-mail is sent to a specific mailbox, accessible only to the addressee through procedures involving the use of personal codes; while the WhatsApp message, sent through techniques that ensure confidentiality, is accessible only to the person who has the availability of the target electronic device, which is also normally protected by access codes or other identification mechanisms.
(automatic non official machine translation)
CONSTITUTIONAL COURT
JUDGMENT NO. 170
(ECLI:IT:COST:2023:170)
JUDGMENT FOR CONFLICT OF ATTRIBUTION BETWEEN STATE POWERS.
President: SCIARRA - Editor: MODUGNO
Public Hearing of 07/06/2023; Decision of 22/06/2023
composed of Messrs: President : Silvana SCIARRA; Justices : Daria de PRETIS, Nicolò ZANON, Franco MODUGNO, Augusto Antonio BARBERA, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D'ALBERTI,
has pronounced the following
JUDGMENT
in the lawsuit for conflict of attribution between powers of the State arising from the acquisition of multiple communications of Senator Matteo Renzi, ordered by the Public Prosecutor's Office at the Ordinary Court of Florence as part of the criminal proceedings against the same senator and others, in the absence of prior authorization by the Senate of the Republic, brought by the latter with an appeal notified on December 23, 2022, filed at the Clerk's Office on January 10, 2023, entered under no. 10 of the Register of Conflicts between the Powers of the State 2022 and published in the Official Gazette of the Republic No. 3, first special series, of the year 2023, phase of merit.
Having regard to the affidavit of the Public Prosecutor's Office at the Ordinary Court of Florence;
Hearing at the public hearing on June 7, 2023, Judge-Rapporteur Franco Modugno;
Hearing of the lawyers Giuseppe Morbidelli and Vinicio Settimio Nardo for the Senate of the Republic and Andrea Pertici for the Public Prosecutor's Office at the Ordinary Court of Florence;
Deliberated in the council chamber on June 22, 2023.
Held in fact
1.- In an appeal filed on May 11, 2022 (Reg. Conflict of Powers No. 10 of 2022), the Senate of the Republic brought a conflict of attribution between the powers of the State against the Public Prosecutor's Office at the Ordinary Court of Florence, for having the latter acquired the records of the criminal proceedings entered under no. 3745 of the general register of crime reports of 2019, pending against Senator Matteo Renzi and other subjects, written correspondence concerning the same Senator Renzi without prior authorization of the Senate (as it was never requested), thereby undermining the attributions guaranteed to the latter by Article 68, third paragraph, of the Constitution.
1.1.- Assuming that Senator Renzi had been in office since March 9, 2018, the date of his proclamation, and that since that date he therefore enjoyed the prerogative under the aforementioned Article 68, third paragraph, of the Constitution, the appellant deduces that, as part of the investigative activity relating to the criminal proceedings referred to above, the Public Prosecutor's Office at the Court of Florence in particular acquired, through the seizure of mobile communication devices belonging to third parties, text messages exchanged via the WhatsApp application (hereinafter, for brevity, also: "WhatsApp messages") between Senator Renzi and V. U. M. on June 3 and 4, 2018, and between Senator Renzi and M. C. during the period August 12, 2018-October 15, 2019, as well as correspondence exchanged via email between them, in the number of four missives, between August 1 and 10, 2018.
By acquisition decree, the Prosecutor's Office also acquired Senator Renzi's personal bank account statement for the period June 14, 2018-March 13, 2020. All of this would emerge from the documents attached to the report of the Committee on Elections and Parliamentary Immunities of Dec. 14, 2021, doc. XVI, No. 9, approved by the Assembly on February 22, 2022, and produced together with the appeal.
1.2.- After noting how, in the light of the case law of this Court, the subjective and objective requirements for the admissibility of the conflict must be deemed to be met, the appellant assumes that the Florentine Public Prosecutor's Office, by proceeding to seize the aforementioned material without first requesting the Senate's authorization pursuant to Art. 68, third paragraph, of the Constitution and Article 4 of Law No. 140 of June 20, 2003 (Provisions for the implementation of Article 68 of the Constitution as well as in the matter of criminal trials against high state officials), would have violated the sphere of the attributions of the latter state power.
The notion of "correspondence," referred to by the provisions now cited, would in fact lend itself to include, in addition to traditional paper correspondence delivered by postal and telegraphic service (which has now become "statistically minority[a]"), also written messages exchanged through computer and telematic type instruments: messages assisted by the same guarantee of secrecy, ensured by the reserved access credentials for electronic correspondence and the exclusive availability, in the hands of the correspondents, of the electronic devices used to exchange text messages.
The assimilability of the two instruments, which perform the same communicative function in writing, would, on the other hand, have been consistently recognized by the European Court of Human Rights, which has always held that the notion of "correspondence," as referred to in Article 8 of the European Convention on Human Rights, is referable to electronic mail and messages exchanged via the Internet, as well as to data stored in computer servers, hard disks and other storage devices.
In domestic law, moreover, Law No. 547 of December 23, 1993 (Amendments and additions to the norms of the Criminal Code and the Code of Criminal Procedure on the subject of computer crime), by replacing the fourth paragraph of Article 616 of the Criminal Code, expressly equated computer or telematic correspondence with epistolary and telegraphic correspondence: this, in order not to subtract from the system of protection of ordinary law forms of communication falling within the sphere of protection of Article 15 of the Constitution, which qualifies as inviolable the freedom and secrecy of correspondence.
The Constitution could not deal with computer and telematic correspondence only for historical reasons, and certainly not for reasons of differentiation of discipline. In both Article 15 Const. and Article 68, third paragraph, Const. the term "correspondence" is, moreover, used without any specification, lending itself, therefore, to be referred to any form of communication that has become practicable as a result of technological evolution.
1.3.- The jurisprudence of legitimacy has, on the other hand, clarified what is the element that, with regard to the transmission of data and information through electronic channels, distinguishes the taking of knowledge of correspondence from interception. In outlining the relationship between the crime under Art. 616 of the Criminal Code (which punishes the unlawful acquisition of the contents of correspondence, including computer and telematic correspondence) and that under the subsequent Art. 617-quater (which punishes the interception of computer or telematic communications), the Court of Cassation has, in fact, affirmed that the latter criminal figure is referable to communication in its "dynamic" moment, i.e., in transition, while the former concerns communication in its "static" profile, i.e., the thought already communicated or to be communicated fixed on a physical support or otherwise represented in material form.
Such a consideration would make it clear that the arguments put forward by the jurisprudence of legitimacy in order to deem Article 254 of the Code of Criminal Procedure inapplicable to the seizure of electronic mail and text messaging: arguments by which it would seem to deny the nature of correspondence to electronic correspondence, qualifying it as a document, pursuant to Article 234 of the Code of Criminal Procedure. Leaving aside the fact that paper correspondence also has the nature of a document, so that the one qualification is by no means incompatible with the other, it would be necessary to consider that Article 254 of the Code of Criminal Procedure. does not exhaust the discipline of the seizure of correspondence, but deals exclusively with that which intervenes when the same is in transit from the sender to the addressee, thus determining an interruption of the flow of information; whereas, on the other hand, correspondence that has already been delivered may be subject to documentary seizure at the addressee pursuant to the previous art. 253 of the Code of Criminal Procedure. This, in perfect analogy with the distinction, recalled above, between dynamic and static profiles of communication.
1.4.- In any case, the legislative provisions now recalled and their jurisprudential interpretation could not be used to support a limiting reading of the notion of correspondence relevant to the application of constitutional guarantees. Indeed, as repeatedly noted by this Court, it is the legislative norms that must be observed in light of the Constitution, and not the latter in the light of what the legislative framework establishes.
The interpretative perspective that would intend to circumscribe the guarantee provided by Article 68 of the Constitution and Article 4 of Law No. 140 of 2003 to paper correspondence alone would not only not be supported by any literal, logical-systematic or teleological argument, but would have completely irrational outcomes. In the current historical moment, in which the twentieth-century postal instrument is completely recessive, to subtract electronic correspondence from constitutional protection would mean emptying the parliamentary prerogative of its content, subordinating, moreover, the activation of the latter to the casual fact of the paper or electronic nature of the correspondence instrument chosen by the individual parliamentarian.
1.5.- Nor, then, would it be possible to argue that correspondence ceases to be such once it has come to the knowledge of the addressee: a perspective in which Article 15 Const. would be limited to protecting only correspondence in transit.
Such a thesis would allow the circumvention of Articles 15 and 68, third paragraph, Const. since on this basis it would be sufficient to wait for the delivery of the communication to the addressee in order to acquire its means and content. The doctrine - the appellant points out - has, on the other hand, long held that the guarantees of freedom and secrecy of correspondence endure until the underlying interest loses relevance, and that the legal regime under Article 15 of the Constitution is only lost when both parties to the communicative relationship consent to it.
This - the appellant further notes - without considering that, since the guarantee in Article 68, third paragraph, Const. is intended to protect the autonomy and decision-making independence of the Chambers against intrusions by other powers, such intrusiveness remains - and all the more so - once the text has been read.
1.6.- According to the appellant, not even Senator Renzi's bank account statement could have been acquired without the Senate's prior authorization.
In fact, with this document the bank communicates confidential data to the client, such as the debit and credit transactions carried out in a given period, with an indication of the recipients and reasons, which reveal contracts, obligations and relationships. It too, therefore, would fall within the scope of correspondence protected by Article 15 Const. and, a fortiori, by Article 68, third paragraph, Const.
1.7.- The procedure provided for by Article 4 of Law No. 140 of 2003 would, on the other hand, be applicable - contrary to what the Florence Public Prosecutor's Office argues - even when electronic correspondence is found, as in the case at hand, on a cell phone belonging to a third party who is not a Member of Parliament.
In a previous similar case, the Public Prosecutor's Office at the Ordinary Court of Milan - having detected the presence, on a mobile device seized from a person outside the Parliament, of electronic correspondence directed to, and coming from, a senator - had, in fact, correctly requested the Assembly to which it belonged to authorize the seizure of the mobile phone also with reference to telephone conversations and messaging concerning the senator (Report of the Council of Elections and Parliamentary Immunities of November 13, 2019, doc. IV, No. 4-a).
This Court would have provided, on the other hand, clear indications in this regard, noting that Article 68, third paragraph, Const. "prohibits subjecting to interception, without authorization, not the parliamentarian's utilities, but his communications: what matters - for the purposes of the operation of the prior authorization regime established by Article 68, third paragraph, Const. - is not the ownership or availability of the tapped user, but the direction of the act of investigation. If the latter is aimed, in concrete terms, at gaining access to the sphere of the parliamentarian's communications, the unauthorized interception is illegitimate, regardless of whether the proceedings concern third parties or whether the tapped utilities belong to third parties." In other words, "[t]he rules on prior authorization, dictated by Article 4 [of Law No. 140 of 2003], must be considered intended [...] to apply whenever the parliamentarian is identified in advance as the recipient of the interception activity, even if this takes place by monitoring the utilities of different parties" (Judgment No. 390 of 2007 is cited).
These indications, made in relation to the matter of wiretapping, would also be valid in relation to the seizure of correspondence. They are, in fact, referred to the parliamentary prerogative under Article 68, third paragraph, Const. in its entirety.
In the present case, that the act of investigation was aimed at accessing the sphere of the parliamentarian's communications would clearly emerge from the search and seizure decrees issued on November 20, 2019 by the Florence Public Prosecutor's Office against V. U. M. and M. C. These orders refer, in fact, to the need to acquire detailed documentation relating to the economic relations between the Open Foundation and its private financial backers, based on the investigative hypothesis that the latter had "reimbursed expenses to parliamentarians" and "made credit and ATM cards available to them," in violation of the regulations on the financing of political parties. This activity would have been carried out in favor of reference structures of political subjects involved in the so-called Democratic Party primary consultations in 2012 and in the "committee for Matteo Renzi secretary." It would result, consequently, "blatant and indisputable" that the acts of investigation aimed to penetrate the sphere of communications of members of the Parliamentary Assemblies, and in particular Senator Renzi.
2.- The conflict was declared admissible by this Court in Order No. 261 of 2022, "without prejudice to any further question, including on the point of admissibility."
3.- The Public Prosecutor's Office at the Court of Florence has entered an appearance, requesting that the appeal be dismissed or possibly declared inadmissible.
3.1. - The respondent moves, in its defenses, from a preliminary, analytical reconstruction of the developments in the criminal proceedings that gave rise to the conflict, highlighting how originally the investigation did not concern, neither the Open Foundation, nor Senator Renzi and other persons connected to the Foundation, but involved them only at a later time, following the identification of certain bank transfers to the former, which had given rise to the investigative hypothesis that, through the Foundation - which can be qualified as a political-organizational articulation of the Democratic Party (and in particular of the "current" headed by Renzi) - economic disbursements had been made that could constitute the crime of illicit financing of political parties (Art. 7 of Law No. 195 of May 2, 1974, on "State contribution to the financing of political parties," and Art. 4 of Law No. 659 of November 18, 1981, on "Amendments and additions to Law No. 195 of May 2, 1974, on the State contribution to the financing of political parties"). Preliminary investigations having been concluded, the suspects had then been indicted for these facts on February 1, 2022.
3.2.- That said, the respondent observes that - as the appellant himself acknowledges - the investigative activities that gave rise to the conflict do not fall under the concept of "wiretapping": a concept that, as pointed out by constitutional and legitimacy jurisprudence, designates the covert apprehension, in real time, of the content of a conversation or communication in progress between two or more persons by other parties, unrelated to the conversation.
Emails, WhatsApp messages and bank account statements could not, moreover, even be brought back - contrary to what the Senate assumes - to the concept of "correspondence."
The jurisprudence of legitimacy - recalls the respondent - is, in fact, constant in affirming that computer data stored in the memory of a cell phone - SMS (Short Messages System), WhatsApp messages and e-mail messages - have the nature of documents within the meaning of Article 234 of the Code of Criminal Procedure, so that the acquisition thereof is not subject, neither to the rules established for correspondence, nor even less to the discipline of wiretapping. The rules dictated by Article 254 of the Code of Criminal Procedure for the seizure of correspondence, in particular, would not be applicable to the texts in question, since the notion of "correspondence" implies an ongoing mailing activity, or, in any case, initiated by the sender through delivery to third parties for delivery.
This reconstruction would be in continuity with the thesis held by the doctrine, according to which the communicative message, once the addressee has become aware of it, ceases to be "correspondence," so that its secrecy would be protected, no longer by Article 15 of the Constitution, but by other norms (such as those guaranteeing personal freedom, freedom of domiciliary freedom, freedom of thought manifestation, the right to property and so on) and, therefore, in the procedural sphere, by the regulation of inspections, personal and domiciliary searches and the acquisition of evidence.
In the appeal, the Senate allegedly took up the different doctrinal thesis according to which the constitutional protection of freedom of communication would not end with the receipt of the message, but would extend over time as long as the sender and the recipient consider it to be current. Such a thesis, however, on the one hand, would risk overextending the notion of correspondence; on the other hand, it would be a source of uncertainty in the application of the rules that refer to this notion. Indeed, it would not be understandable why, while the Code of Procedure configures the "seizure of correspondence" with exclusive reference to communications "in transit," Article 4 of Law No. 140 of 2003 should also include correspondence that has arrived at the addressee's premises. All the more so, then, that, with regard to the specific profile under consideration here, deeming correspondence of the parliamentarian even that which has been sent would mean paralyzing the operations of the search for evidence even in the case of persons who are not parliamentarians, merely because they correspond with members of Parliament.
3.3.- All the more so, then - according to the respondent - the bank account statement could not be brought under the concept of correspondence, since it is a document that is not born to be transmitted, although it could be, but which has the function of a summary - for the same bank that processes it, as well as for the holder or other subjects - of incoming or outgoing dispositive transactions.
If the potential transmissibility of a document were enough to bring it under the notion of correspondence, one would have to come to the unacceptable conclusion that the acquisition of any writing-such as an agenda, a diary or even a book-simply because it is placed inside a package, remains subject to the rules on the seizure of correspondence even once the dynamic phase of mailing is over.
Beyond, moreover, the observation that, since no correspondence was involved, no seizure had to be authorized, the authorization of the Chamber of Deputies could not be deemed necessary in any case, since the measure on the basis of which the document was acquired, issued on January 11, 2021, did not consist of a seizure decree pursuant to Article 253 of the Code of Criminal Procedure, nor of a request for delivery pursuant to Article 248 of the Code of Criminal Procedure, addressed to a banking institution, and did not even have as its object the statement of account. Instead, it was a takeover decree issued pursuant to Article 38(3) of Legislative Decree No. 231 (Implementation of Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing and Directive 2006/70/EC laying down measures for its implementation), concerning reports of suspicious banking transactions concerning another suspect, sent by the Financial Intelligence Unit (FIU) to the Special Currency Police Unit of the Guardia di Finanza in Rome, attached to which was the extract of the current account in the name of Matteo Renzi: an extract that was the result of a query made by the FIU directly on the databases in its institutional availability.
3.4.- Even if, moreover, one were to recognize the nature of "correspondence" to the material in question, the appellant's thesis, according to which the seizure of the material itself should have been authorized in advance by the Chamber to which Senator Renzi belongs, would in any case appear to be both fallacious. It would rest, in fact, on an inaccurate reconstruction of the system of authorizations, prior and subsequent, referred to in Articles 4 and 6 of Law No. 140 of 2003.
In this regard, the Florentine Public Prosecutor's Office recalls how this Court clarified, in Judgment No. 390 of 2007 - with particular attention to the matter of wiretapping, but with remarks that extend to the entire Article 68, third paragraph, of the Constitution (and therefore also to the seizure of correspondence) - that the provision of the cited constitutional norm is fully satisfied, at the level of ordinary law, by the regulation of prior authorization, as provided for in Art. 4 of Law No. 140 of 2003, which is to be considered intended to apply whenever the parliamentarian is identified in advance as the recipient of the eavesdropping activity, even if it takes place by monitoring utilities of other persons (so-called "indirect" eavesdropping).
The discipline of subsequent authorization for the procedural use of the findings of the act, provided by Article 6 of Law no. 140 of 2003 in relation to so-called "casual" wiretapping, could not instead be considered constitutionally imposed, but would represent an addition to what is required by the constitutional norm: so much so that it was declared constitutionally illegitimate, with regard to the provisions of paragraphs 2, 5 and 6, in the part in which they were made applicable also in cases in which wiretapping was to be used against persons other than members of Parliament, whose conversations or communications had been intercepted; leaving open the question of whether a similar conclusion applies where it is intended to be used against the same parliamentarian.
That said, the respondent observes that Article 4 of Law No. 140 of 2003, in precise adherence to the provisions of Article 68, third paragraph, of the Constitution, includes among the acts of investigation subject to prior authorization also the seizure of correspondence. However - and therein would lie the appellant's substantive error - parliamentary authorization concerns the execution of acts of investigation contemplated in the system: therefore, in the present case, of the seizure decree ordered under Article 254 of the Code of Criminal Procedure (for correspondence "in transit"), or - if one were to accept the Senate's perspective - of the seizure decree ordered under Article 253 of the Code of Criminal Procedure (as to e-mails and WhatsApp messages already viewed by the addressee).
In arguing that the prosecutor should have requested an authorization for the execution of the decree of seizure of documents stored inside mobile devices of persons not belonging to the Parliament, the Senate would confuse the execution of the investigative act with the use of its results (i.e., with the possibility, once the correspondence has been downloaded from the mobile device, of employing the acquired material in the criminal proceedings).
Under current - constitutional and ordinary - legislation, the obligation to seek prior authorization exists only where the act of investigation (the seizure of the device and the correspondence stored therein) is carried out against the parliamentarian, and thus either directly from him, or - based on the development of constitutional jurisprudence - from a third party who can be qualified as his "habitual interlocutor." a qualification, the latter, to be interpreted, moreover, in a highly restrictive sense - and, in particular, as limited to direct associates of the member of Parliament and some of his or her close relatives - so as not to result in an abnormal evasion of the guarantees of the rule of law.
Contrary to the Senate's assertion, such an assumption would not occur in the case at hand. In fact, no investigative activity was being carried out against a parliamentarian, nor did the Public Prosecutor's Office have elements to believe that V. U. M. and M. C. had correspondence relations with Senator Renzi, since they could not be identified as regular interlocutors of the parliamentarian. On the other hand, as previously represented, the investigation would involve the Open Foundation and the people who gravitated around it only later, which would rule out any persecutory intent against Senator Renzi.
3.5.- Excluding, therefore, that the Public Prosecutor's Office was obliged to request prior authorization, it could not even be considered obliged to request subsequent authorization for the purpose of using correspondence acquired by chance.
Article 6 of Law no. 140 of 2003 - a provision on which would weigh, moreover, a strong suspicion of constitutional illegitimacy also for the residual part, relating to the use of evidence against the parliamentarian - provides, in fact, for authorization in relation to the minutes of recordings of intercepted conversations and communications, as well as to the printouts of communications acquired, but not as well in relation to the seizure of correspondence: nor, on the other hand, could the need for authorization for the use of the latter be derived by analogy, since it is an exceptional rule and as such of strict interpretation.
3.6.- But even if one were to consider, as a mere hypothesis, that in the case under consideration the regime of subsequent authorization, as set forth in Article 6 of Law No. 140 of 2003, could be applied, the conflict would be inadmissible, since it would be brought against a subject other than the one to whom the power whose improper exercise is complained of is attributed.
The task of requesting the authorization in question is specifically attributed, in fact, by paragraph 2 of the aforementioned Article 6, to the judge for preliminary investigations: which would render the Chamber to which the parliamentarian belongs incompetent to deliberate, since at the time the proceedings were initiated and carried out there had been only the intervention of the public prosecutor.
4.- In the vicinity of the public hearing, the Senate of the Republic filed a brief, in which it responded to the arguments of the other party, insisting that the appeal be granted.
4.1.- The appellant disputes, first of all, the prosecutor's argument according to which e-mails and text messages (SMS and WhatsApp) would not constitute correspondence, but mere documents, the notion of correspondence being referable only to an ongoing mailing activity.
The direction of the jurisprudence of criminal legitimacy evoked by the respondent in support of its assumption would not, in fact, be monolithic at all. In the perimeter of the crime of violation, misappropriation and suppression of correspondence, referred to in Article 616 of the Criminal Code, the Court of Cassation itself has not, in fact, compressed the object of criminal protection to only correspondence in transit, but has associated the criminally sanctioned inviolability with the concept of a "sealed envelope," which for digital correspondence is identified in the encryption of the electronic document for the exclusive use of the addressee: hence the deemed configurability of the crime in the case where the telematic correspondence stored in the electronic mail archive is taken into account.
The jurisprudential orientation referred to by the Public Prosecutor's Office refers, in any case, to computer data contained in the phone memory of private citizens, for the purpose of assessing the legitimacy of their evidentiary acquisition. Here, on the other hand, we are discussing the communications of a member of Parliament, with respect to which specific and additional constitutional requirements come into play. As clarified by the aforementioned Judgment No. 390 of 2007, the guarantee provided by Article 68, third paragraph, of the Constitution is, in fact, instrumental to the safeguarding of parliamentary functions, aiming to prevent interceptions or seizures of correspondence from being unduly aimed at affecting the elective mandate, becoming a source of conditioning and pressure on the free performance of the activity. These requirements would not be undermined by the fact that the message has been read, especially since it remains encrypted and stored inside the device, as would be the case in the case of paper correspondence where the envelope, after being opened, is sealed again by the recipient.
Moreover, the prosecutor's thesis would be at odds with the case law of the European Court of Human Rights - a review of which is offered in the brief - which, in its interpretation of Article 8 ECHR, would have offered an interpretation of the notion of correspondence not limited to the moment of flow, including e-mail and instant messaging already received by the recipient. The Court of Civil Cassation would also appear, moreover, to be oriented in the same direction.
4.2.- The doctrinal opinion cited by the Public Prosecutor's Office in support of its assumption - according to which the protection provided by Article 15 of the Constitution would cease when the addressee has taken cognizance of the communication - would be, on the other hand, opposed by an equally authoritative doctrine, according to which the protection lasts after the opening of the letter and ceases only when the latter loses its topicality due to the passage of time, assuming a merely affective, historical or collector's value.
In the case at hand, topicality would certainly not be lacking, so much so that it is material acquired by the prosecutor during investigations aimed at demonstrating a sort of osmotic relationship between the Open Foundation and the political party "current" of which Senator Renzi was a leader. On the other hand, that the messaging in question is current would be demonstrated both by the very fact that, at the time of acquisition by the judicial police, the messages had not been deleted by the owner of the user; and, most importantly, by the fact that they pertain to the activities of a prominent political figure, so that their knowledge would be "very current in the political agon."
The thesis of the transformation of correspondence into a mere document as a result of its reading would, in practice, put constitutional protection against precisely those forms of correspondence that are most widespread today, such as e-mail and instant messaging services, whose sending is immediately followed by receipt.
Dirimente, in this field, would be, moreover, the judgment No. 38 of 2019 of this Court, which recognized that the guarantee provided by Article 68, third paragraph, Const. extends to documents that reveal the extrinsic data of a conversation or communication - such as, in particular, telephone records - since these are documents already brought back by constitutional jurisprudence, for all subjects of the system, to the sphere of protection of Art. 15 Const. and suitable, at the same time, to unveil relationships, including institutional ones, of a member of Parliament, of far greater magnitude than the requirements of a specific investigation and also concerning other parliamentarians. It would appear, in fact, evident that the "intrusive capacity" of reading e-mails, WhatsApp messages and text messages is far more pronounced than that of the acquisition of printouts. It is not, in fact, a matter of extrinsic data from which it is possible to simply deduce the duration, the users involved and the location, but of intrinsic data, that is, the full content of the communications: so that the parliamentary safeguard could not fail to include also the correspondence acquired after its flow, that is, in the static phase. But even assuming that the messages in question are mere external and historical data of a conversation that is no longer current, they would fall, for that reason alone, under the coverage of Article 68, third paragraph, of the Constitution.
4.3.- As for, then, Senator Renzi's bank account statement, the circumstance, inferred by the Public Prosecutor's Office, that the acquisition of the document took place by virtue of a decree for the acquisition of reports of suspicious banking transactions, among the attachments of which was the account statement in question, would have no relevance.
A logical and substantive reading could not, in fact, fail to include even this modus procedendi in the area of protection of Article 68, third paragraph, Const.
Article 119 of Legislative Decree No. 385 of September 1, 1993 (Consolidated Law on Banking and Credit) stipulates, in paragraph 1, that "[i]n term contracts, the parties indicated in Art. 115" (i.e., banks and financial intermediaries) "shall provide the customer, [...] at the expiration of the contract and in any case at least once a year, with clear communication regarding the course of the relationship"; while paragraph 2 states that "[p]er relationships regulated by current account, the statement of account shall be sent to the customer on an annual basis or, at the customer's choice, on a semi-annual, quarterly or monthly basis."
This would therefore be correspondence ready to be sent, and indeed mandatorily to be sent to the customer: in other words, a document structured by destination as correspondence. The circumstance that the acquisition derives from the provisions of the anti-money laundering regulations would not, moreover, make the constitutional guarantee fail, once it was detected - as the Prosecutor was easily able to do - who was the holder of the current account and therefore the recipient of the relevant periodic communication.
4.4.- In another respect, the Prosecutor's thesis, which circumscribes the scope of application of Article 68 Const. to investigations against members of parliament only, would appear to be completely misaligned with the distinction, elaborated by the jurisprudence of this Court, between communications directly concerning a member of parliament, indirect communications and casual or fortuitous communications. According to this jurisprudence, authorization must be requested in advance not only if the investigative act is ordered against users in the MP's name or at his disposal (so-called "direct" interceptions), but also whenever the interception refers to users of the MP's habitual interlocutors, or is carried out in places presumably frequented by him, with the primary purpose of learning the content of the MP's conversations and communications (so-called "indirect" interceptions).
The respondent restricts the circle of "habitual interlocutors" to "the parliamentarian's direct associates, spouse and some close family members": but such an assertion would err on the side of "formalism" - forgetting that there may be relationships far closer than those resulting from blood ties or a formal employment relationship - and would also be belied by the documents drawn up by the Public Prosecutor's Office itself.
The search decree of November 25, 2019 (issued against another suspect) comments, in fact, on an email dated February 5, 2016, from which it would emerge how M. C. was part of Senator Renzi's inner circle of "loyalists," also acting as a conduit for communications with the latter of the Foundation's donors. The more than close relations between the two would, moreover, have been in the public domain, being easily verifiable through a simple Internet search. They, moreover, as would appear from the messages themselves, would have been characterized by a confidentiality, continuity and commonality of purpose "that certainly goes far beyond the type of relationships with co-workers and even close family members."
According to the appellant, it appeared, therefore, evident how seizing M. C.'s correspondence would mean getting in touch with that with Senator Renzi. But the same argument would also hold true with regard to the correspondence with U. M., a funder of the Foundation and linked by close friendship relations with Senator Renzi also in the public domain and manifested by the confidential tone of the same messages subject to seizure.
At the same time, it would be indisputable that the main target of the investigative acts was Senator Renzi himself: this would emerge with extreme clarity from the search decrees themselves, in that the entire investigation was aimed at qualifying the Open Foundation as an articulation of a political party referable to Senator Renzi, aimed at supporting and finding resources for his political action; a circumstance that would find express confirmation in the charges formulated in the indictment request.
Contrary to the opinion of the Public Prosecutor's Office, one would thus be faced with a case entirely similar to the one, already referred to in the appeal, in which the Public Prosecutor's Office at the Ordinary Court of Milan had requested authorization to execute a seizure of a senator's correspondence (telephone conversations, messaging, emails and chats) contained in the smartphone owned by and in use by one of his collaborators, as part of criminal proceedings pending against both: authorization granted by the Senate.
The Prosecutor's Office's assertion that "any persecutory intent against Sen. Renzi" would be "excluded" would not be valid: this is because prior authorization must be given in any case, and it is up to the Chamber to which the person belongs to assess whether or not such intent exists.
All the more so would this be the case when, as in the present case, the same parliamentarian is co-indicted, this circumstance being - in the light of the indications of Judgment No. 114 of 2010 of this Court - a symptomatic index of the non-random nature of the investigative activity.
4.5.- Finally, the subordinate argument of the Public Prosecutor's Office, on the basis of which, if Article 6 of Law No. 140 of 2003 were deemed applicable, the conflict would be inadmissible, since it would be brought against a subject other than the one to whom the power whose improper exercise is complained of is attributed.
The Senate did not intend at all to invoke the application of Article 6, but of Article 4 of the aforementioned law, i.e., the prior authorization requirement: so that any disquisition on Article 6 would be irrelevant.
5.- The Public Prosecutor's Office at the Court of Florence also filed a brief, insisting that this Court recognize that it is entitled to the challenged power, subject to the possible declaration of inadmissibility of the appeal.
5.1.- The brief reiterates, first, the impossibility of bringing text messages (SMS and WhatsApp) and e-mails already received and read by the recipient under the legal notion of correspondence.
To hold - as the appellant does - that correspondence remains such as long as the sender and the addressee consider the communicative act to be actual would, on the other hand, generate unacceptable uncertainty in the application of the rules that refer to the notion of correspondence: if the assessment as to the actuality of the communicative message falls within the psychic sphere of the sender and the addressee, it would be exceedingly problematic for the prosecutor in the proceeding to determine ex ante whether or not, in the case at hand, he or she is in the presence of correspondence. What is more, in such a perspective, members of Parliament could always evade the acquisition of the content of a given communicative act, even when a considerable amount of time has elapsed since the exhaustion of the communicative process itself.
With regard, then, to the current account statement, the Senate's references to Article 119 of the Banking Consolidation Act, insofar as it provides for the periodic sending of the statement to the customer, would not serve the purpose of bringing the latter back to the concept of correspondence, but would demonstrate exactly the opposite: namely, that the account statement exists as a document regardless of its sending, with the function of summarizing - for the same bank that processes it, the account holder or other parties - incoming and outgoing dispositive transactions.
5.2.- Moreover, even assuming that the acquisition of text messages, e-mails and current account statements were qualified as a seizure of correspondence, the appeal would be equally unfounded.
In this regard, the Public Prosecutor's Office reiterates how the fundamental error, inherent in the appellant's prospectus, is represented by the confusion between the execution of investigative acts (in this case, the documentary seizure decree issued pursuant to Article 253 of the Code of Criminal Procedure) and the use in the trial of their findings (in this case, of the material acquired on the basis of the execution of the decree itself).
In this regard, the appellant's reference to the affair involving Senator A. S. would be conferential but not probative. On that occasion, in fact, the Milan Public Prosecutor's Office should have requested and obtained authorization prior to the execution of the seizure decree on the device of Senator A. S.'s collaborator. S. (who turned out to be, based on certain elements evidently known to the Prosecutor's Office, a habitual interlocutor of the parliamentarian), and not already at the moment when the judicial police, with the execution in progress, came across messages exchanged with the same. Article 4, paragraph 2, of Law No. 140 of 2003 states, in fact, that "[t]he authorization shall be requested by the authority that issued the measure to be executed; pending the authorization, the execution of the measure shall remain suspended": the suspension referred to in the aforementioned provision pertains, therefore, to the procedural phase between the issuance of the seizure decree and the beginning of its execution, while no obligation is given to suspend the execution of seizure decrees once the latter has begun.
Nor, on the other hand, could Article 6 of Law No. 140 of 2003, which does not mention the seizure of correspondence among the means of searching for evidence subject to the regime of subsequent authorization for the purpose of using their findings, come into play. This provision, as an exceptional rule, derogatory to the principle of equal treatment before the jurisdiction, is moreover of strict interpretation and not susceptible to extension by analogy to cases not expressly contemplated.
5.3.- Lastly, the Public Prosecutor's Office points out how, following the constitutional revision made by Constitutional Law No. 3 of October 29, 1993 (Amendment of Article 68 of the Constitution), there is no longer any generalized authorization to conduct investigations against members of Parliament, with respect to whom only certain acts must be authorized, including - as far as it is of interest here - those aimed at acquiring communications from them. In this framework, the "directionality" of the investigative activity should therefore be ascertained with respect to the specific act of investigation and the context in which it is set. Consequently, in the context of an investigation that also involves members of Parliament, the capture of communicative flows (in the case of wiretapping) and the acquisition of correspondence (in the case of the seizure of correspondence), carried out from the user or device of a third party, could well take place even where the prosecutor proceeding may abstractly assume that in this way one may come across communications or correspondence of members of Parliament, unless the third party qualifies as a habitual interlocutor of the latter. To do otherwise would surreptitiously restore a generalized prior authorization to conduct investigations against parliamentarians.
5.4.- In the light of all this, it would be inescapable to conclude that the Florence Public Prosecutor's Office - by failing to request prior authorization for the execution of the investigative act, as well as that subsequent to the use of its findings, acquired "by chance" - has not put in place any infringement of parliamentary prerogatives.
In fact, it would appear from the detailed exposition of the course of the criminal proceedings contained in the affidavit that the investigation was not originally "directed" against Senator Renzi, and that the specific acts of investigation (search and seizure decrees) were not aimed at acquiring computer data relating to communications that had taken place with the same, especially since they were carried out on devices in use by third parties, who did not boast legally qualified relations with the parliamentarian.
To hold otherwise, the prosecutor proceeding would have had to request an authorization from the Senate for the execution of wiretaps or seizures of correspondence on the utilities or devices of a very wide range of people (e.g., all the members of the organs of the party of which Senator Renzi was at the time secretary).
Nor, then-as already pointed out-could it be argued that, when it fortuitously found communications with Senator Renzi in the course of executing the seizure decrees, the prosecutor should have interrupted the investigation by requesting prior authorization from the Senate to execute a new seizure decree. What matters, in fact, is only the "directionality" of the investigative activity.
5.5.- Finally, with regard to the exception of inadmissibility raised by the Public Prosecutor's Office in the final part of the act of constitution - on which the Senate did not deem it necessary to make specific objections, considering Article 4 and not Article 6 of Law No. 140 of 2003 relevant in this case - the respondent reiterates that this is a hypothesis put forward only in the alternative, agreeing that Article 6 should not be applied, as, however, neither should Article 4.
Considered in law
1.- With an appeal filed on May 11, 2022 (Reg. Conflict of Powers No. 10 of 2022), the Senate of the Republic brought a conflict of attribution between the powers of the State against the Public Prosecutor's Office at the Ordinary Court of Florence, for having the latter acquired to the records of the criminal proceedings no. 3745/2019 R.G.N.R. written correspondence concerning Senator Matteo Renzi (in office since March 9, 2018) without prior authorization from the Senate (as it was never requested), thereby undermining the attributions guaranteed to the latter by Article 68, third paragraph, of the Constitution.
1.1. - According to what emerges from the deductions and documentary production of the parties, the criminal proceedings in question - originally instituted against different individuals and for different events - subsequently saw Senator Renzi and persons connected to him under investigation in relation to the financial support provided by or through a private law foundation (the Open Foundation) to the political activity of Senator Renzi himself and the Democratic Party current of which he was the leading exponent: support capable of integrating - according to the accusatory hypothesis - the crime of illicit financing of political parties.
In the course of the investigation, the Florence Public Prosecutor's Office conducted local searches of various individuals, aimed at acquiring documentation, including computer records, on the financial dealings of the Open Foundation. The individuals subjected to search include, under two separate decrees dated November 20, 2019, M. C., a member of the Foundation's board of directors, and V. U. M., a financier of the same (including through a company referable to him).
As a result of these investigative acts, cell phones belonging to M. C. and V. U. M. were then subjected to evidentiary seizure, along with other computer devices. U. M. The memory of these phones, moreover, contained text messages exchanged via the WhatsApp application between Senator Renzi and V. U. M. on June 3 and 4, 2018, and between Senator Renzi and M. C. during the period August 12, 2018-October 15, 2019, as well as e-mail exchanged between the latter and Senator Renzi, in the number of four missives, between August 1 and 10, 2018.
The appellant specifically complains that the missives and messages now referred to were acquired in the records of the proceedings without prior authorization of it Senate. He also complains that the Florentine Public Prosecutor's Office - again without authorization - acquired, by means of an acquisition decree issued on January 11, 2021, the statement of Senator Renzi's personal bank account for the period June 14, 2018-March 13, 2020.
1.2.- In the applicant's opinion, the notion of "correspondence," referred to without any specification by Article 68, third paragraph, of the Constitution and by the implementing provision in Article 4 of Law No. 140 of 2003, would undoubtedly also include written messages exchanged through electronic means, made available by technological evolution. Correspondence would, on the other hand, remain such even after it has come to the knowledge of the addressee, as long as it retains a topical character. Thus, e-mail and WhatsApp messages that, after receipt, remain stored in the memory of the sender's or recipient's mobile device would also constitute "correspondence."
But the bank account statement would also fall within the scope of correspondence covered by the parliamentary prerogative, since it is a document by which the bank communicates confidential data to the customer, such as debit and credit transactions made in a given period and the reasons for them, revealing contracts, obligations and relationships.
On the other hand, then, it would be extensible - according to the Senate - to the seizure of correspondence the principle, affirmed by this Court on the subject of the interception of conversations or communications of members of Parliament, by virtue of which what counts, for the purposes of the operation of the prior authorization regime, is not the ownership of the intercepted user, but the direction of the act of investigation. If this is aimed at gaining access to the sphere of the parliamentarian's communications, the unauthorized wiretap is illegitimate, even if the tapped user belongs to a third party.
This hypothesis would apply in the present case. The search and seizure decrees issued against M. C. and di. V. U. M. were, in fact, avowedly aimed at finding elements concerning the economic dealings of the Open Foundation, based on the investigative hypothesis that, through it, elected members of the Democratic Party in Parliament had been unduly financed. It would thus be evident how the acts of investigation aimed to penetrate the sphere of communications of the latter, and in particular of Senator Renzi, in support of whose political action the Foundation would have primarily operated.
2.- First of all, it should be confirmed, in terms of admissibility of the conflict, the existence of the requirements, subjective and objective, provided for by Article 37, first paragraph, of Law No. 87 of March 11, 1953 (Rules on the Constitution and Functioning of the Constitutional Court), already declared by this Court in Order No. 261 of 2022, during the first and summary deliberation.
As to the subjective requirement, in fact, the Senate of the Republic is legitimated to be a party to the conflict of attribution, being competent to definitively declare the will of the power it impersonates, in relation to the applicability of the prerogative under Article 68, third paragraph, of the Constitution (Ordinances No. 276 and No. 275 of 2008; similarly, as to the Chamber of Deputies, if the member of Parliament involved belongs to it, Ordinances No. 208 of 2022 and No. 327 of 2011).
Likewise, the passive legitimacy of the Public Prosecutor's Office at the Court of Florence exists. The jurisprudence of this Court is, in fact, constant in recognizing the nature of power of the State to the Public Prosecutor's Office - and, in particular, to the Public Prosecutor's Office (Judgment No. 1 of 2013, Ordinance No. 193 of 2018) - as it is invested with the constitutionally guaranteed attribution inherent in the mandatory exercise of criminal prosecution (Article 112 Const. ), to which is connected the direct and exclusive ownership of the investigations aimed at it (ex plurimis, judgments no. 88 and no. 87 of 2012; ordinances no. 273 of 2017, no. 217 of 2016, no. 218 of 2012): a function with reference to which the public prosecutor, a non-jurisdictional body, must be considered competent to definitively declare, in a position of full independence, the will of the judicial power to which it belongs (judgment no. 183 of 2017).
With regard, then, to the objective requirement, the appellant complains of the infringement of the attribution provided by Article 68, third paragraph, Const, which requires the authorization of the Chamber to which he belongs in order to subject members of Parliament to interception, in any form, of conversations or communications and to seizure of correspondence: a guarantee aimed primarily at protecting the autonomy and decision-making independence of the Chambers against undue intrusions of other powers, reverberating only instrumentally in favor of the persons invested in the function (Judgment No. 38 of 2019, Order No. 129 of 2020; similarly, Judgments No. 74 of 2013 and No. 390 of 2007).
3.- As a preliminary matter, it should be further noted that as of the date of filing the appeal (May 11, 2022), one of the acts at the origin of the conflict - namely, the search and seizure order issued on November 20, 2019 against M. C. - had already been annulled by the Court of Cassation.
In Judgment No. 11835 of February 18-March 30, 2022, the Sixth Criminal Section - ruling on the appeal against the order of the Florence Court of Re-examination that had upheld the Prosecutor's Office's decree - did, in fact, annul the contested order and the decree itself without referral, ordering the return to M. C. not only of the seized materials (including the cell phone), but also of the data extrapolated from them, without withholding any copies from the investigating body.
It must, however, be ruled out that this circumstance - on which none of the parties dwelt in their defense writings - determines the inadmissibility of the conflict in parte qua, due to lack of current and concrete interest in its proposition.
The annulment was, in fact, ordered on grounds that do not pertain to the attributions claimed with the conflict. The court of legitimacy found, in essence, that no adequate demonstration of the existence of fumus commissi delicti had been offered. The Public Prosecutor's Office had considered the crime of illicit financing of political parties to be configurable against the suspects on the assumption that the Open Foundation had operated as a "political-organizational articulation" of the Democratic Party (and, in particular, of the current headed by Senator Renzi): a hypothesis that could be envisaged - according to the Court of Cassation - only in the event that the entity had deviated from its statutory purposes and exceded from the physiological scope of the activities of political foundations, as outlined by Art. 5, paragraph 4, of Decree-Law No. 149 of December 28, 2013, converted, with amendments, into Law No. 13 of February 21, 2014 (Abolition of direct public financing, provisions for the transparency and democratic nature of political parties and regulation of voluntary and indirect contributions in their favor), in the text in force ratione temporis; of which, moreover, no evidence had been given.
The annulment left, therefore, the Senate's interest in resolving, in any case, the uncertainty as to whether the Public Prosecutor's Office was entitled to the power, in fact exercised, to acquire the text messages exchanged electronically by Senator Renzi with M. C. without prior authorization from the Chamber to which the former belonged.
4.- Turning, with this, to the examination of the merits of the conflict, the first and preliminary question that this Court must answer is whether the acquisition, by the Public Prosecutor's Office of Florence, of the materials under discussion is actually ascribable to the paradigm of the "seizure of correspondence", for the purposes of the operation of the parliamentary prerogative prefigured by Article 68, third paragraph, Cost.
The point - on which the parties express contrasting opinions - should be examined separately with regard to e-mail and WhatsApp messages, on the one hand, and the bank account statement, on the other.
4.1.- With regard to the former, the parties agree that the acquisition of e-mail and WhatsApp messages made in the present case does not qualify as interception.
The assertion is fully supportable. Not, however, for the reason given in the report of the Council on Elections and Parliamentary Immunities (doc. XVI, no. 9) and also taken up in the Senate's appeal, according to which the discrimen between the interception of communications or conversations and the seizure of correspondence would be marked mainly by the form of communication: in the sense that the former would concern oral communications, while the latter would concern written communications (whether paper or telematic). In the opposite sense, it should in fact be noted that Article 266-bis of the Code of Criminal Procedure expressly provides that wiretapping can also have as its object streams of computer or telematic communications (therefore, not oral); while, on the opposite front, through the WhatsApp application oral messages can also be sent, just as audio files containing oral communications can be transmitted by e-mail. According to the Senate Council's argument, the acquisition of the latter communications should always constitute interception, and never seizure of correspondence-a conclusion that is hardly acceptable.
The line between the two hypotheses actually crosses elsewhere. As recalled by the respondent, the Criminal Unified Sections of the Court of Cassation have clarified that "wiretapping" - a case which the Code of Criminal Procedure does not define - must be understood (in accordance, moreover, with the common meaning of the word) to mean the "covert apprehension, in real time, of the contents of a conversation or communication in progress between two or more persons by other parties, unrelated to the conversation" (Court of Cassation, Criminal Unified Sections, judgment May 28-September 24, 2003, No. 36747).
For there to be wiretapping, therefore, two conditions must be met, as far as it is most interesting here. The first is of a temporal order: the communication must be in progress at the moment of its capture by the extraneus; that is, this must capture the communication in its "dynamic" moment, with consequent extraneousness to the concept of the acquisition of the physical support that bears memory of a communication that has already taken place (therefore, in its "static" moment). The second condition relates to the manner of execution: the apprehension of the communicative message by the third party must take place covertly, that is, without the knowledge of the subjects between whom the communication takes place.
Neither of these two conditions is met in the case at hand: the communications concerning Senator Renzi were not in progress when they were acquired; their acquisition occurred, moreover, in an overt manner.
4.2.- Having ruled out, therefore, the hypothesis of interception, it remains to be ascertained whether the investigative acts considered fall under the other case to which Article 68, third paragraph, of the Constitution refers: that, precisely, of "seizure of correspondence."
Generally speaking, that the exchange of electronic messages - e-mails, SMS, WhatsApp and the like - represents, per se, a form of correspondence for the purposes of Articles 15 and 68, third paragraph, Const. cannot be doubted.
Given that that of "correspondence" is a broadly inclusive concept, apt to embrace any communication of human thought (ideas, intentions, feelings, data, news) between two or more determined persons, implemented in a manner other than in-person conversation, this Court has repeatedly affirmed that the protection granted by Article 15 Const. - which ensures to all citizens the freedom and secrecy "of correspondence and all other forms of communication," allowing its limitation "only by reasoned act of the judicial authority with the guarantees established by law" - is irrespective of the characteristics of the technical means used for the purpose of transmission of thought, "thus opening the constitutional text to the possible emergence of new means and forms of confidential communication" (Judgment No. 2 of 2023). The guarantee extends, therefore, to any means that technological evolution makes available for communicative purposes, including electronic and computerized means, which were unknown at the time the Constitutional Charter was enacted (Judgment No. 20 of 2017; previously, with regard to low-powered two-way radios, Judgment No. 1030 of 1988; on the freedom of the holder of the right to freely choose the means by which to correspond, Judgment No. 81 of 1993).
Electronic mail and messages sent through the WhatsApp application (belonging to the so-called instant messaging systems), therefore, fall squarely within the sphere of protection of Article 15 of the Constitution, appearing entirely comparable to closed letters or tickets. The confidentiality of communication, which in traditional epistolary correspondence is guaranteed by the insertion of the paper envelope or ticket in a sealed envelope, is here ensured by the fact that e-mail is sent to a specific mailbox, accessible only to the addressee through procedures involving the use of personal codes; while the WhatsApp message, sent through techniques that ensure confidentiality, is accessible only to the person who has the availability of the target electronic device, which is also normally protected by access codes or other identification mechanisms.
The conclusion does not change, however, if one looks at the parliamentary prerogative provided by Article 68, third paragraph, Const.
It is well true that this provision refers exclusively to "correspondence," and not as well, like Article 15 Const., to "other forms[s] of communication," and that between the two concepts - "correspondence" and "communication" - there exists, by current assertion, a relationship of species ad genus. The notion of "correspondence"-also used in Article 68, third paragraph, Const. without further specification-appears, however, to be sufficiently broad to encompass the forms of long-distance exchange of thought that come into play here, constituting as many "contemporary versions" of epistolary and telegraphic correspondence. To argue otherwise, at a time in history when paper correspondence, transmitted through the postal and telegraphic service, is now relegated, on the whole, to a secondary role, would, moreover, be to radically depress the value of the parliamentary prerogative in question.
It also helps, moreover, in the considered direction the jurisprudence of the European Court of Human Rights, which has had no uncertainty in bringing under the cone of protection of Art. 8 ECHR-where even reference is made to "correspondence" tout court-email messages (Court of Human Rights, Grand Chamber, judgment Sept. 5, 2017, Barbulescu v. Romania, para. 72; Court of Human Rights, Fourth Chamber, judgment Apr. 3, 2007, Copland v. United Kingdom, para. 41), text messages (Court of Human Rights, Fifth Chamber, judgment Dec. 17, 2020, Saber v. Norway, para. 48), and instant messaging sent and received via the Internet (Court of Human Rights, Grand Chamber, judgment Barbulescu, para. 74).
As the appellant recalls, on the other hand, at the level of ordinary domestic legislation, the fourth paragraph of Article 616 of the Criminal Code, as replaced by Article 5 of Law No. 547 of 1993, has for some time already expressly included in the notion of "correspondence" - for the purposes of the provisions contemplating crimes against the inviolability of secrets - in addition to epistolary, telegraphic and telephone correspondence, also that which is "computer or telematic or effected by any other form of communication at a distance."
4.3.- The problem, however, is a different one: to establish, that is, whether e-mail and WhatsApp messages already received and read by the recipient, but stored in the memory of the recipient's own electronic devices or those of the sender (such as those at issue in this case), also retain the nature of correspondence. And it is on this specific point that the parties put forward radically opposing theses.
The question recalls, in fact, the long-standing debate about the final temporal limits of the protection granted by Article 15 of the Constitution: a debate that has seen the emergence of two distinct currents of thought, which the parties recall-each as to the one of its interest-in support of their respective assumptions.
According to a first line of thought, relied on by the plaintiff in his defenses, protection - which begins when the expression of thought is entrusted to a medium capable of transmitting it, thus making effective the intent to communicate it to others - would not end with the receipt of the message and the recipient's awareness of its content, but would persist as long as the communication retains the character of topicality and interest for the correspondents. It would cease to exist, therefore, only when the passage of time or other cause has transformed the message into a "historical" document, to which only retrospective, affective, collector, artistic, scientific or evidentiary value can be attributed.
According to another conception, on the other hand - to which the respondent refers - correspondence already received and read by the addressee would no longer be a means of communication, but a mere document. The guarantee afforded by Article 15 Const. would be justified, in fact, by the particular "vulnerability" of messages at the moment they are "corresponded," due to the greater risk of capture or apprehension by third parties: it would cease, therefore, with the exhaustion of the act of corresponding, coinciding with the moment in which the addressee takes cognizance of the communication. After that moment, correspondence would remain protected, no longer by Article 15 of the Constitution, but by other constitutional provisions, such as those on personal and domiciliary freedom, freedom of thought manifestation, right of defense or right to property.
The respondent also invokes, in support of its argument, the jurisprudence of legitimacy, which has defined the applicative boundaries of the case of the seizure of correspondence outlined in Article 254 of the Code of Criminal Procedure. : this, both with regard to epistolary correspondence (among others, Court of Cassation, First Criminal Section, judgment April 23-June 12, 2014, no. 24919; Court of Cassation, Joint Criminal Sections, judgment April 19-July 18, 2012, no. 28997), and - and for what is of more direct interest - in relation to electronic messages. In an address that appears, at present, to be consolidated, the Court of Cassation has, in fact, affirmed that e-mail, SMS and WhatsApp messages, already received and stored in the sender's or recipient's computer or cell phone, have the nature of "documents" within the meaning of Article 234 of the Code of Criminal Procedure. Their procedural acquisition, therefore, is subject neither to the discipline of interception of computer or telematic communications (Art. 266-bis of the Code of Criminal Procedure), nor to that of the seizure of correspondence referred to in the aforementioned Art. 254 of the Code of Criminal Procedure, which implies an ongoing mailing activity (in the latter sense, with regard to the individual categories of messages that from time to time were relevant, ex plurimis, among the last, Court of Cassation, second criminal section, judgment July 1-October 19, 2022, no. 39529; Court of Cassation, sixth criminal section, judgment March 16-June 8, 2022, no. 22417; Court of Cassation, fifth criminal section, judgment March 10-May 6, 2021, no. 17552).
4.4.- The argument of the respondent - which would lead to the rejection of the appeal, as it would not be faced with a hypothesis of seizure of correspondence, but a mere and "generic" acquisition of documents, not falling within the list of acts for which Article 68 of the Constitution requires the placet of the Chamber to which the parliamentarian belongs - cannot be, however, shared.
Degrading communication to a mere document when it is no longer in progress is a solution that, if it confines the constitutional protection prefigured by Article 15 Const. in the increasingly reduced cases of paper correspondence to narrow ambits, ends up even zeroing it out, in fact, with respect to communications operated by e-mail and other instant messaging services, in which sending is followed immediately - or, at any rate, without an appreciable temporal hiatus - by receipt.
Such a conclusion is all the more necessary when it is not only a question of establishing what is correspondence for the generality of the consociates, but of specifically delimiting the area of correspondence of and with a parliamentarian, for the seizure of which Article 68, third paragraph, of the Constitution requires the authorization of the Chamber to which he belongs. As pointed out by this Court, the cited constitutional provision does not prefigure a privilege of the individual parliamentarian as such - the freedom and secrecy of whose communications is already protected by Article 15 Const. - but a prerogative "instrumental [...] to the safeguarding of parliamentary functions," wishing to prevent that interceptions and seizures of correspondence may be "unduly finalizzat[ed] to affect the performance of the elective mandate, becoming a source of conditioning and pressure on the free performance of the activity" (Judgment No. 390 of 2007; in a similar sense, Judgments No. 38 of 2019 and No. 74 of 2013, Order No. 129 of 2020). If this is the ratio of the prerogative, limiting it only to communications that are in progress and not already concluded would mean giving it such a restrictive interpretation as to nullify its scope: conditioning and pressure on the free performance of the parliamentary mandate may well derive, in fact, also from the taking cognizance of the contents of messages that have already reached the recipient. As the Senate's defense also notes, from the perspective opposed, it would be easy for investigating bodies to circumvent the constitutional obligation of prior authorization to acquire the parliamentarian's correspondence: instead of capturing communications as they take place, it would suffice to wait for their conclusion (which in the case of electronic messages, moreover, is almost coeval), and then seize the device in which there is a trace of their contents.
This Court, on the other hand, has long since affirmed that the guarantee provided by Article 15 of the Constitution also extends to the external data of communications (those, that is, which make it possible to ascertain the historical fact that a communication has taken place and to identify its author, time and place): a problem that has arisen particularly in relation to telephone records, containing the list of calls departing from or arriving at a given user (Judgment No. 81 of 1993; in a conforming sense, Judgments No. 372 of 2006 and No. 281 of 1998). In this regard, it was noted that "the close relevance of freedom and secrecy of communication to the essential core of personality values - a relevance that leads to characterize the corresponding right 'as a necessary part of that vital space that surrounds the person and without which the person cannot exist and develop in harmony with the postulates of human dignity' (see Judgment No. 366 of 1991) - entails a special interpretative constraint, aimed at giving that freedom, as far as possible, an expansive meaning" (Judgment No. 81 of 1993).
To a similar conclusion this Court has, moreover, more recently also reached with reference to the parliamentary prerogative provided for by Article 68, third paragraph, of the Constitution, which was also deemed referable to telephone records (Judgment No. 38 of 2019). In this regard, it was noted that there can be no ontological difference between the content of a conversation or communication and the document that reveals the extrinsic data of these, such as the telephone printout: a document that - as previously noted for another purpose (Judgment no. 188 of 2010) - can open up glimpses of knowledge about a parliamentarian's relationships, especially institutional ones, "of far greater breadth than the requirements of a specific investigation and concerning other subjects (in particular, other parliamentarians) for whom the same protection of the independence and freedom of the function operates and must operate" (Judgment No. 38 of 2019).
But if, therefore, the acquisition of the external data of communications that have already taken place (such as those stored in a printout) enjoys the protections granted by Articles 15 and 68, third paragraph, of the Constitution, it is unthinkable that the seizure of electronic messages, even if already delivered to the recipient, does not enjoy them: an operation that allows to become aware not only of the extrinsic identification data of the communications, but also of their content, and therefore of intrusive attitude tends to be greater.
On the other hand, the European Court of Human Rights has had no hesitation in bringing under the umbrella of "correspondence" protected by Art. 8 ECHR even computer-telematic messages in their "static" dimension, i.e., already occurred (with regard to e-mail, EDU Court, Copland judgment, para. 44; with regard to instant messaging, EDU Court, Barbulescu judgment, para. 74; with regard to data stored on floppy disks, EDU Court, Fifth Chamber, judgment May 22, 2008, Iliya Stefanov v. Bulgaria, para. 42). Address, this one, recently reiterated also in relation to a case quite similar to the one under consideration today, namely the seizure of data from a smartphone, which also included SMS and e-mail messages (EDU Court, Saber judgment, paragraph 48).
The different direction of the jurisprudence of legitimacy, on which the respondent relies, does not concern the guarantee of Article 68 Const. and appears, in fact, calibrated on the specificity of the discipline recited by Article 254 of the Code of Criminal Procedure, which regulates exclusively the seizure of correspondence operated at the operators of postal, telegraphic, telematic or telecommunications services: therefore, the seizure of correspondence in itinere, which interrupts the flow of communication.
The same Court of Cassation, however, has expressed itself in a quite different sense when it came to identifying the scope of application of the crime of violation, subtraction and suppression of correspondence outlined in Art. 616 of the Penal Code. It held, in fact, that this incriminating provision protects precisely and only the "static" moment of communication, that is, the thought already fixed on a physical support, the "dynamic" profile being the subject of protection in the subsequent Articles 617 and 617-quater of the Criminal Code, which safeguard communications in the transmission phase from external interference (taking cognizance, impediment, interruption, interception) (Court of Cassation, Fifth Criminal Section, judgment Sept. 29-Nov. 4, 2020, No. 30735; Court of Cassation, Fifth Criminal Section, judgment Feb. 2-March 15, 2017, No. 12603). In this perspective, the jurisprudence of legitimacy has thus repeatedly affirmed that the conduct of a person who abusively takes cognizance of the content of telematic correspondence directed to others and stored in the electronic mail archive integrates the crime of violation of correspondence (Court of Cassation, fifth criminal section, judgment March 25-May 2, 2019, No. 18284; Cass., judgment No. 12603 of 2017). The Civil Court of Cassation also appears to be moving in a similar direction (on the subject of disciplinary dismissal, Court of Cassation, Labor Section, Order No. 21965, September 10, 2018).
It must therefore be concluded that, similarly to Article 15 of the Constitution, as to the correspondence of the generality of citizens, also, and a fortiori, Article 68, third paragraph, of the Constitution protects the correspondence of members of Parliament - including electronic correspondence - even after its receipt by the addressee, at least until, due to the passage of time, it has lost all topicality, in relation to the interest in its confidentiality, turning into a mere "historical" document.
In this regard, it does not help to oppose - as the respondent does - that the thesis transposed here would be a source of unacceptable uncertainties on the applicative level, since the investigating bodies are not able to know, a priori, whether the communicative message already delivered and learned by the addressee retains, in the consideration of the subjects involved, the character of topicality. Such character must, in fact, be presumed, until proof to the contrary, when we are discussing messages exchanged - as in the case at hand - at a distance of time not particularly significant with respect to the moment in which they should be acquired and during the course of the parliamentary mandate in which that moment is located, and moreover still kept in devices protected by access codes.
The conclusion is, therefore, that, in this respect, one is in the presence of seizures of correspondence falling within the scope of the guaranty of Article 68, third paragraph, Const.
4.5.- The discourse is different with regard to the acquisition of the bank account statement.
In arguing that the latter also constitutes a seizure of correspondence, the appellant relies, in particular, on the circumstance that, by obligation deriving from the law, the current account statement - a statement prepared by the bank, in which all the debit and credit movements occurring in the account during the reference time frame are reported - must be periodically sent to the account holder. This obligation, prefigured at the codified level by the combined provisions of Articles 1832 and 1857 of the Civil Code, finds specific discipline in Article 119 of the Consolidated Banking Act. banking, which, after establishing, in general, in paragraph 1, that in contracts of duration the bank shall provide the customer, at the expiration of the contract and, in any case, at least once a year, "a clear communication regarding the conduct of the relationship," adds, in paragraph 2, that for "relationships regulated by current account," the statement of account is sent annually or with the shorter periodicity - six-monthly, quarterly or monthly - chosen by the customer.
Now, if the object of apprehension by the investigating bodies was the account statement sent by the bank to the account holder, the guarantees provided for in Articles 15 and 68, third paragraph, Const. could indeed be considered to come into play. As recalled in the appeal, the jurisprudence of legitimacy has, moreover, repeatedly recognized the crime of violation of correspondence (art. 616 of the Criminal Code) in facts of misappropriation of bank correspondence (for all, Court of Cassation, Second Criminal Section, judgment November 28, 2017-January 12, 2018, No. 952).
However, this is not the case at hand. In the present case, in fact, as deduced and documented by the Florence Public Prosecutor's Office, Senator Renzi's bank account statement entered the investigative files through a decree, issued on January 11, 2021, for the acquisition of reports of suspicious banking transactions made pursuant to the anti-money laundering regulations under d. lgs. no. 231 of 2007: reports whose attachments included the account statement in question (covering a period of twenty-one months: from June 14, 2018 to March 13, 2020), obtained by the reporting Financial Intelligence Unit of the Bank of Italy through querying the databases in its possession.
In such a case, there can be no question of seizure of correspondence. The statement of account is, in fact, a document that has an autonomous function and value, independent of its dispatch to the account holder. It is nothing more, in fact, than a summary of the results of the bank's accounting records, which must show all the debit and credit transactions passed in the current account. It is, therefore, in itself an internal accounting document of the credit institution: the circumstance that it may or must be transmitted to the customer does not automatically and permanently qualify it as "correspondence," for the purposes of Article 68, third paragraph, Const.
To this it is not worth objecting that the statement of account contains - as is also pointed out in the appeal - confidential data, capable of revealing, including through references to the recipients and reasons for individual transactions, contracts, obligations and relationships of the MP. Article 68, third paragraph, Const. does not, in fact, generically and indiscriminately protect the confidentiality of the parliamentarian, the protection of which is entrusted to the conferring norms valid for the generality of citizens. Article 68 Cost. requires the authorization of the Chamber of belonging only to perform specific acts against members of Parliament, particularly likely to affect the performance of the elective mandate (limitations of personal freedom, personal and house searches, wiretaps, seizure of correspondence): not, however, to carry out, by other means, banking investigations on the parliamentarian, nor to acquire, in any other way, his personal data, useful for investigation purposes. In fact, the prerogatives placed to protect the parliamentary function entail a derogation from the principle of equal treatment before the courts - a principle that is at the origin of the formation of the rule of law - and must therefore be interpreted in light of their ratio, avoiding improper extensive readings (Judgments No. 38 of 2019 and No. 74 of 2013).
With reference to the investigative act in question, the appeal must therefore be deemed unfounded, for the diriment reason that this act remains outside the applicative perimeter of the parliamentary prerogative invoked.
5.- The appeal must, on the contrary, be upheld in relation to the acts of investigation to which the prerogative is correctly approached: namely - as seen - the acquisition of e-mail and WhatsApp messages.
5.1.- In this regard, it becomes necessary, moreover, to specify in what way, in the case under consideration, the regime of authorization for the seizure of correspondence, provided by Article 68, third paragraph, of the Constitution and Article 4 of Law No. 140 of 2003, is intended to operate.
In the present case, we are dealing with "containers" of computer data belonging to third parties - cell phones, but it could be, likewise, computers or other devices - in whose memory were stored, among other things, messages sent electronically to or from a parliamentarian.
In such an eventuality, the investigative bodies must be considered empowered to order - as against the non-parliamentary third party - the seizure of the "container" (in this case, the mobile phone device). At the moment, however, when they find the presence in it of messages exchanged with a parliamentarian, they must suspend the extraction of such messages from the memory of the device (or its copy) and request the authorization of the Chamber to which the parliamentarian belongs, pursuant to Article 4 of Law No. 140 of 2003, in order to be able to involve them in the seizure.
In accordance with what was argued in the report of the Giunta, approved by the Chamber, and unlike the approach then adopted in the appeal, the authorization should be requested, in the terms outlined above, regardless of any assessment regarding the "targeted" or "occasional" nature of the acquisition of the parliamentarian's messages, operated through the apprehension of devices belonging to third parties (the issue - that of the "targeted" or "occasional" nature of investigative acquisitions - on which the defenses of the parties also hold at length, with opposite conclusions with respect to the case in question). The distinction, elaborated by the jurisprudence of this Court in relation to the wiretapping of conversations or communications of members of Parliament, between "indirect" and "occasional" wiretaps - with limitation to the former of the obligation to request prior authorization for the execution of the act, pursuant to Art. 4 of Law No. 140 of 2003 (Judgment No. 390 of 2007; in a conforming sense, Judgments No. 157 of 2023, No. 38 of 2019, No. 114 and No. 113 of 2010) - is not, in fact, referable to the case of seizure of correspondence that comes under consideration here. Unlike in the case of wiretapping-which consists of an activity prolonged in time of covert capture of communications or conversations that have yet to take place at the time the investigative act is ordered-here we are discussing the acquisition one actu of communicative messages that have already taken place. Once it is found that these are messages of a parliamentarian, or directed to him, it becomes, therefore, in any case operative the guaranty of Article 68, third paragraph, Const.
To this reconstruction it is of no use to oppose - as the respondent does - that with the seizure of the device the correspondence contained therein must be considered already seized and in the full availability of the prosecutor proceeding: so that the extraction of the data would represent a posterius with respect to the execution of the investigative act for which the guarantee in question is prefigured. In the opposite sense, it should be noted that in the case of computer evidentiary seizure, the "real" object of the seizure is not so much the electronic device (the "container") - which, in itself, is normally of no interest to the investigation - but rather its data (the "content"), insofar as they are useful to the investigation itself: data which, according to the indications of the jurisprudence of legitimacy, must be selected for this purpose and possibly made the subject of a "copy-clone," with restitution of the device (and of the availability of all other data) to the owner.
The procedural form that has been outlined guarantees, on the other hand, a point of balance between the interests at stake, avoiding inappropriate dilatations of the effects proper to the parliamentary prerogative, which would risk unjustifiably penalizing the same initiatives of the judicial authority aimed at the investigation of crimes. When, in fact, the investigating bodies may foresee that in the cell phone or computer of a person under investigation messages from a parliamentarian are stored, this does not prevent, however it may be, the bodies themselves from learning the device and seizing all the other computer data contained in the device, which have nothing to do with the correspondence of the parliamentarian: without prejudice, however, to the burden of the request for authorization in order to extrapolate from the device and acquire in the records of the proceedings the messages that concern the parliamentarian himself. The authorization still remains preventive with respect to the seizure of correspondence, without transforming itself - as the respondent opines - into an ex post authorization for the purpose of the procedural use of the results of an investigative act already carried out: an authorization that Article 6 of Law No. 140 of 2003 provides only in relation to wiretapping and the acquisition of telephone records, and not also to the seizure of correspondence.
The proposed reconstruction explains, on the other hand, why the aforementioned Article 6 did not extend the discipline of subsequent authorization, recited by it, to the seizure of correspondence. Given that, as clarified by this Court, such discipline must be understood to refer only to wiretapping of an "occasional" nature, not subject to the regime of prior authorization (judgment No. 390 of 2007), the explanation lies precisely in the fact that, with respect to the seizure of correspondence, the "occasional" or "targeted" nature of the act is not taken into account, resulting for it in any case necessary prior authorization, pursuant to Article 4 of the same law, in the terms specified above.
5.2.- In the case at hand, the Florentine Public Prosecutor's Office extracted from the memory of M. C.'s and V. U. M.'s cell phones and acquired in the records of the proceedings the messages directed to Senator Renzi, or coming from him, without asking the Senate for any authorization.
In so doing, he thus brought about the impairment of the attribution provided for in Article 68, third paragraph, of the Constitution, complained of by the appellant.
6.- In light of the foregoing considerations, the conflict of attribution raised by the Senate of the Republic must be resolved by declaring that it was not the responsibility of the Public Prosecutor's Office at the Court of Florence to acquire from the records of criminal proceeding No. 3745/2019 R.G.N.R., on the basis of search and seizure decrees issued on November 20, 2019, correspondence concerning Senator Matteo Renzi, consisting of text messages exchanged via the WhatsApp application between Senator Renzi and V. U. M. on June 3 and 4, 2018, and between Senator Renzi and M. C. during the period August 12, 2018-October 15, 2019, as well as e-mail exchanged between the latter and Senator Renzi, in the number of four missives, between August 1 and 10, 2018.
To that effect, the seizure of the indicated text messages exchanged between Senator Renzi and V. U. M. must be annulled. There is no need, on the other hand, to adopt a similar measure in relation to the seizure of the correspondence exchanged between Senator Renzi and M. C., since the annulment of the same has already been ordered, albeit on other grounds, by the Court of Cassation, as recalled in Section 3 of the Consideration in Law above.
It should be stated, on the other hand, that it was incumbent on the Prosecutor's Office to acquire from the records of the same criminal proceedings, by means of an acquisition decree issued on January 11, 2021, the statement of Senator Renzi's personal bank account for the period June 14, 2018-March 13, 2020.
For These Reasons
THE CONSTITUTIONAL COURT
(1) declares that it was not within the competence of the Public Prosecutor's Office at the Ordinary Court of Florence to acquire from the records of the criminal proceedings entered under No. 3745 of the General Register of Crime Reports of 2019, on the basis of search and seizure decrees issued on November 20, 2019, correspondence concerning Senator Matteo Renzi, consisting of text messages exchanged via the WhatsApp application between Senator Renzi and V. U. M. on June 3 and 4, 2018, and between Senator Renzi and M. C. during the period August 12, 2018-October 15, 2019, as well as from e-mails exchanged between the latter and Senator Renzi, in the number of four missives, between August 1 and 10, 2018;
2) annuls, to the effect, the seizure of text messages exchanged between Senator Matteo Renzi and V. U. M. on June 3 and 4, 2018;
3) declares that it was the responsibility of the Public Prosecutor's Office at the Ordinary Court of Florence to acquire from the records of criminal proceeding No. 3745/2019 R.G.N.R., by means of an acquisition decree issued on January 11, 2021, the statement of Senator Matteo Renzi's personal bank account for the period June 14, 2018-March 13, 2020.
Thus decided in Rome, in the seat of the Constitutional Court, Palazzo della Consulta, on June 22, 2023.
F.to:
Silvana SCIARRA, President
Franco MODUGNO, Editor
Roberto MILANA, Director of the Chancellery
Filed in the Clerk's Office on July 27, 2023
The Director of the Chancellery
F.to: Roberto MILANA