JUDGMENT NO. 117

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA

Justices: Franco MODUGNO, Giulio PROSPERETTI, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has issued the following

JUDGMENT

in the proceedings regarding the conflict of attribution of powers between State authorities, arising from the resolution of the Senate of the Republic of 9 March 2022 (doc. IV, no. 10), which denied the authorization to use, against Senator Armando Siri, the intercepted telephone communications, within the scope of criminal proceedings no. 12460 of 2017 R.G.N.R. D.D.A., by the Public Prosecutor's Office at the Ordinary Court of Palermo, promoted by the Judge of the Preliminary Hearing of the Ordinary Court of Rome, within the scope of criminal proceedings no. 40767 of 2018 R.G.N.R., with appeal notified on 26 October 2023, filed in the registry on 21 November 2023, registered under no. 3 in the register of conflicts of powers of the State 2023 and published in the Official Gazette of the Republic no. 48, first special series, of the year 2023, merit phase.

Having seen the act of constitution of the Senate of the Republic;

Having heard Judge Rapporteur Stefano Petitti at the public hearing of 21 May 2024;

Having heard Attorney Giovanni Guzzetta for the Senate of the Republic;

Deliberated in the Chamber of Council of 21 May 2024.

Considered in fact

1.– With an appeal filed on 21 November 2023 (reg. confl. pot. no. 3 of 2023), the Judge of the Preliminary Hearing of the Ordinary Court of Rome initiated a conflict of attribution of powers between State authorities against the Senate of the Republic, requesting that the lack of competence of the latter to deny, by resolution of 9 March 2022 (doc. IV, no. 10), the authorization to use against Senator Armando Siri the intercepted telephone communications, within the scope of criminal proceedings no. 12460 of 2017 R.G.N.R. D.D.A., by the Public Prosecutor's Office at the Ordinary Court of Palermo and included in criminal proceedings no. 40767 of 2018 R.G.N.R. of the Public Prosecutor's Office at the Court of Rome, be declared, citing «the uncertain and implausible configuration of the requirement of necessity regarding the interceptions of 15 May 2018, prog. 2521 and 2523», as well as the «lack of the requirement of fortuity and accidental nature in relation to the telephone calls of 17 May 2018, prog. 2618, of 17 July 2018, prog. 5760, of 4 August 2018 prog. 5997 and of 6 August 2018, prog. 6043, 6044 and 6090».

1.1.– The appellant states that Senator Siri was entered in the register of suspects on 25 September 2018 following the charge, in concurrence with P.F. A., of the crime of corruption pursuant to Articles 318 and 321 of the Criminal Code, because, in his capacity as Senator of the Republic and Undersecretary of State at the Ministry of Infrastructure and Transport, he would have served his functions to private interests, favoring the insertion in regulatory and legislative provisions of content favorable to the economic interests of P.F. A., in exchange for the «promise and/or the giving» of 30,000.00 euros by the latter.

1.2.– It also reports that, from the investigations carried out by the Public Prosecutor's Office at the Ordinary Court of Palermo, later transferred to the Public Prosecutor's Office at the Ordinary Court of Rome, sporadic contacts would have emerged between the other defendants, owners of plants producing energy from alternative sources, and Senator Siri, whose entry in the register of suspects would have resulted from the interception of an environmental conversation of 10 September 2018, during which P.F. A. reported to others the need to «compensate the “Deputy Minister” […] for an amendment to be included in the law converting the “thousand extensions” decree».

By order of 23 June 2021, in response to the request made by the public prosecutor to use all the interceptions of conversations in which Senator Siri had participated, the appellant Judge asked the Senate of the Republic, pursuant to art. 6, paragraph 2, of Law no. 140 of 20 June 2003 (Provisions for the implementation of Article 68 of the Constitution as well as in matters of criminal proceedings against high State officials), the authorization to use only the conversations intercepted at a time prior to the entry of the senator in the register of suspects, «believing that for those subsequent the prior authorization would have been necessary».

1.3.– The appeal also reports that the Senate of the Republic, by resolution adopted on 9 March 2022, denied the requested authorization «due to the uncertain and implausible configuration of the requirement of necessity with regard to the interceptions of 15 May 2018, prog. 2521 and 2523», as well as «for lack of the requirement of fortuity and accidental nature in relation to the telephone calls of 17 May 2018, prog. 2618, of 17 July 2018, prog. 5760, of 4 August 2018 prog. 5997 and of 6 August 2018, prog. 6043, 6044 and 6090».

2.– In the opinion of the appellant, art. 6 of Law no. 140 of 2003, for the authorization to use against a parliamentarian acts of interception already ordered against another subject, requires the judicial authority to indicate the elements on which the request for authorization is based, «thus evoking, on the one hand, the specific evidentiary findings available up to that moment and, on the other hand, their aptitude to give rise to the "necessity" of what is requested to be authorized».

In the face of such a request, the Chamber to which the parliamentarian belongs would have the task of verifying the absence of any persecutory or instrumental intent of the request and the existence of the stated necessity of the act, motivated in terms of non-implausibility (reference is made to judgment no. 188 of 2010 of this Court).

2.1.– Having stated this, the appellant specifies that he requested the authorization on the assumption that the use of the aforementioned interceptions would be considered necessary, since «from them […] emerge the contacts between the entrepreneur and the parliamentarian aimed at the presentation of amendments to the regulatory provisions under discussion in Parliament and concerning the economic sector of interest of the defendant A.; the same,» the appeal continues, reporting the content of the request for authorization, «therefore, appear abstractly representative of the space-time context in which Senator and Undersecretary Armando Siri would have operated following the delivery or promise of money in the illegal manner and purpose proposed by the public prosecution».

3.– Therefore, the assessment contained in the resolution of denial of the Senate of the Republic of the authorization to use the two interceptions of 15 May 2018, according to which the lack of the necessity requirement of their use is evident as they were intercepted at a time prior to the assumption of the position of Undersecretary of State of the Ministry of Infrastructure and Transport by Senator Siri (13 June 2018), would be based on an erroneous fact.

According to the appellant, in order to judge the conduct attributed to Senator Siri as a public official, it would be irrelevant that part of the conduct is located at a time when «the defendant was only a Senator, since support for a legislative amendment in exchange for benefits could be given both in that capacity and in the later capacity as Undersecretary».

The resolution denying authorization, therefore, would have been adopted, on this point, basing itself on a «fallacious reading» of the acts, which would have led the Chamber to which the parliamentarian belongs to exceed the limits of its review.

4.– Equally unfounded would be the motivation that led the Senate of the Republic to believe that, in relation to the remaining conversations, intercepted on 17 May, 17 July, 4 and 6 August 2018, the requirement of accidentalness is lacking.

According to the contested resolution, there would have been a change in the direction of the investigation act at the moment in which, after the two telephone calls of 15 May 2018, the prosecuting Public Prosecutor's Office could have, according to criteria of plausibility and reasonableness, realized the involvement of a parliamentarian, and should have, therefore, immediately suspended the interceptions.

In the opinion of the appellant, however, the change in objectives in the direction of the investigations would have only occurred later, that is, when, on the occasion of the reported environmental interception that took place on 10 September 2018, the information relating to the delivery of a sum of money for the insertion in legislative acts of amendments favorable to the co-defendants had emerged. The interceptions that took place previously, on the contrary, would only demonstrate «sporadic interlocutions» that were completely neutral from a criminal point of view, including the communications via text message of 15 May 2018 and the telephone call that took place on the following 17 May, with respect to which the investigators would not even have had the possibility of «realizing that the interlocutor "A.” was a parliamentarian».

In conclusion, also with respect to the denial of the use of these interceptions, the Senate of the Republic would have exceeded the limits of its constitutional attributions.

5.– This Court, by order no. 191 of 2023, declared the appeal admissible, noting the existence of the subjective and objective requirements prescribed by art. 37, first paragraph, of Law no. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court), clarifying that «any further question also remains without prejudice on the point of admissibility». The order and the appeal were promptly and duly notified.

6.– The Senate of the Republic was constituted in court with a merely formal act, filed on 14 December 2023.

7.– In the vicinity of the public hearing of 21 May 2024, the defense of the Senate filed a brief, requesting that this Court declare the appeal inadmissible and, in any case, unfounded.

7.1.– After having reconstructed the procedural events from which the present conflict originates, the defense of the Senate of the Republic first raises the inadmissibility of the appeal for lack of its objective prerequisite, since art. 6 of Law no. 140 of 2003 – which governs the prerequisites and limits for the use of so-called occasional interceptions concerning parliamentarians – would conflict with art. 68, third paragraph, of the Constitution.

In the presence of a constitutional provision, such as the latter, which establishes a system of *ad acta* authorization of a preventive nature for the carrying out of interceptions against a parliamentarian, admitting the possibility, on the basis of an *ex post* authorization, of using interceptions carried out on the line of a third party that involve a member of Parliament would lead to the emptying of the constitutional guarantee, because the parliamentarian could «be caught "by surprise” by merely fortuitous circumstances», such as being subjected to the interception of the telephone line of a third party with whom he happens to communicate occasionally.

This would produce the effect of inducing a «"defensive” attitude of the parliamentarian who knows that he can still be "casually intercepted”» and thus causing «that serenity, independence and freedom from conditioning in communications to disappear which, although instrumental to the guarantee of the body, art. 68, paragraph 3, of the Constitution intends to recognize him».

In light of this, the defense of the Senate of the Republic «expresses an explicit objection of constitutional legitimacy» of art. 6 of Law no. 140 of 2003, for conflict with art. 68, third paragraph, of the Constitution, as well as for violation of the principle of reasonableness referred to in art. 3 of the Constitution, since the discipline of *ex post* authorization would be incompatible with «the only constitutionally conceivable interpretation» of the aforementioned art. 68, third paragraph, of the Constitution, according to which «the interceptions of the parliamentarian can take place and be used where "preventively" authorized […] to avoid disturbing the functionality of his activities and consequently that of the body to which he belongs».

7.2.– The appeal would also be inadmissible due to lack of its subjective prerequisite, since the request for authorization to use the interceptions under discussion was formulated by the judge of the preliminary hearing and not, as instead required by art. 6, paragraph 2, of Law no. 140 of 2003, by the judge for preliminary investigations, which would in fact be the only articulation of judicial power legitimate to promote the conflict of attribution of powers between State authorities in the case in question.

The request for authorization, in fact, would fall functionally to the judge for preliminary investigations and should be presented in a procedural phase prior to the closure of the investigations themselves and the formulation of the request for committal for trial, so that the same authority would also have the active legitimacy to promote conflict before this Court against the parliamentary resolution denying the request for authorization. The judge of the preliminary hearing, today's appellant, would therefore not be entitled to promote conflict because the related power has now been exhausted.

Nor, in the opinion of the defense of the Senate of the Republic, could it be considered that the judge of the preliminary hearing has the task of «integrating the activities assigned to those who managed the means of searching for evidence», since that judge would only be required to «verify that that evidentiary material can be used as it was legitimately acquired also through the prior removal of the condition constituted by the necessary authorization».

Furthermore, the need to identify only the judge for preliminary investigations as the authority legitimized to activate the subsequent authorization procedure and, possibly, to complain before this Court about the violation of their constitutionally guaranteed prerogatives, would also derive from the need to comply with the deadlines established in the same art. 6 of Law no. 140 of 2003. The latter, in fact, provides in paragraph 2 that the judge for preliminary investigations who believes that he must use the interceptions referred to in paragraph 1 of the same article is required, within ten days of the adoption of the related order, to request authorization from the Chamber to which the parliamentarian belongs. Paragraph 5 of the same article, specularly, establishes that, if the authorization is denied, the documentation of the interceptions «is immediately destroyed, and in any case no later than ten days from the notification of the denial».

According to the defense of the Senate of the Republic, the failure to comply with these deadlines in the specific case is relevant not only as such, but above all because it further demonstrates the lack of active legitimation of the appellant Judge of the preliminary hearing, who – performing functions not due to him – should be considered devoid of an attribution to be protected and, therefore, not enabled to definitively express the will of the power to which he belongs.

7.3.– As for the merits, the defense of the Senate believes that the claim, advanced in the appeal, to use the interceptions captured on 15 and 17 May 2018 as they predate the assumption, by Senator Siri, of the position of Undersecretary of State at the Ministry of Infrastructure and Transport, would be unfounded.

What would be relevant in this sense would be, first of all, the specificity of the charge contained in the request for authorization to use the interceptions advanced by the appellant to the Senate, which explicitly linked the need to use the evidentiary material in question to the activity carried out by Senator Siri «in his capacity as Undersecretary».

Contrary to what was opined by the appellant, according to whom for the accusatory hypothesis it would be irrelevant whether the corruptive activity contested to Senator Siri was carried out as a member of the Senate of the Republic or as an undersecretary, in the opinion of the defense of the Senate the chronological data, and the related prior nature of the conduct in question to the assumption of the governmental position (which took place on 13 June 2018), would be decisive because the conduct carried out as a senator «could not constitute, even if "proven", conduct relevant for the purposes of the use of interceptions», given that art. 68, first paragraph, of the Constitution «requires that any imputation of responsibility to the parliamentarian be excluded […] in the exercise of his functions, among which there is certainly the power to propose amendments».

7.4.– Finally, with regard to the interceptions captured after the date of assumption of the position of undersecretary, the defense of the Senate of the Republic believes that these cannot be considered merely occasional, and should be qualified as indirect and, therefore, subject to the regime of prior authorization according to what is prescribed by art. 4 of Law no. 140 of 2003, as constantly interpreted by the jurisprudence of this Court (reference is made to judgment no. 390 of 2007).

The circumstance that the investigating authority was already aware before May 2018 of close relationships between P.F. A. and Senator Siri (according to what emerges from the request for authorization for interceptions advanced by the Anti-Mafia Investigative Directorate of Trapani on 6 March 2018) would be particularly significant in demonstrating the change that occurred in the «direction of the investigation act».

In particular, according to the findings of a communication intercepted on 28 October 2017, it would emerge that the suspects had knowledge of Senator Siri, as demonstrated by the attempt to organize a dinner with him and with the secretary of his party in view of their imminent visit to Sicily. From a further conversation intercepted on 9 April 2018, it would also be inferred that P.F. A. hoped for the formation of a government majority that also included «members of the League», in order to obtain incentives favorable to the sectors of economic activity of interest to the suspects in the proceedings initiated at the Court of Palermo.

All of this, in the opinion of the defense of the Senate, would make the appellant's argument implausible, according to which the direction of the investigation act would have changed only after the interception of 10 September 2018, as the prosecuting authorities had failed to consider that, in light of the relationships existing between P.F. A. and Senator Siri at a time prior to May 2018 and emerged during the investigative activity, the entry of the latter into the investigations should be considered anything but casual, to the point, indeed, of believing that the alleged corrupt activity was the main objective that the investigators had in mind from the beginning.

This, consequently, would lead to considering the resolution of the Senate of the Republic contested in the present proceedings to be legitimate, which correctly would have noted the existence, in the specific case, of a persecutory intent on the part of the prosecuting authority and, with it, a distorted use of judicial power.

Considered in law

1.– The Judge of the Preliminary Hearing of the Ordinary Court of Rome promotes, with the appeal indicated in the preamble, a conflict of attribution of powers between State authorities in relation to the resolution of 9 March 2022, with which the Senate of the Republic denied the authorization to use, against Senator Armando Siri, the telephone communications intercepted within the scope of criminal proceedings no. 12460 of 2017 R.G.N.R. D.D.A. by the Public Prosecutor's Office at the Court of Palermo and included in criminal proceedings no. 40767 of 2018 R.G.N.R. of the Public Prosecutor's Office at the Court of Rome, citing «the uncertain and implausible configuration of the requirement of necessity regarding the interceptions of 15 May 2018, prog. 2521 and 2523», as well as the «lack of the requirement of fortuity and accidental nature in relation to the telephone calls of 17 May 2018, prog. 2618, of 17 July 2018, prog. 5760, of 4 August 2018 prog. 5997 and of 6 August 2018, prog. 6043, 6044 and 6090».

1.1.– The appellant, in particular, complains of the impairment of his attributions, deriving from the claim of the Senate of the Republic to extend the review to which it is called in the context of *ex post* authorization to the use of interceptions concerning members of Parliament, provided for and governed by art. 6, paragraph 2, of Law no. 140 of 2003, beyond the verification regarding the absence of a persecutory or instrumental intent on the part of the requesting Judge, called to motivate in non-implausible terms the probative necessity of the interceptive material for which the use is requested.

2.– On a preliminary basis, the admissibility of the conflict must be confirmed, pursuant to art. 37 of Law no. 87 of 1953, already declared by this Court, in the context of a first and summary assessment, in the order no. 191 of 2023, after having ascertained the existence of its subjective and objective requirements, «without prejudice to any further question also on the point of admissibility».

There can be no doubt, first of all, about the legitimacy of the Senate of the Republic to be a party to the conflict of attribution, as it is competent to declare definitively the will of the power that it embodies, in relation to the exercise of the powers assigned to it by art. 68 of the Constitution.

Nor can it be doubted that the objective prerequisites of the conflict exist, given that the appellant Judge complains of the impairment of his attributions, deriving from the exceeding of powers by the Senate of the Republic, which would have claimed, on the one hand, to independently evaluate the requirement of probative necessity referred to in art. 6, paragraph 2, of Law no. 140 of 2003 (with regard to the interceptions of 15 May 2018) and, on the other hand, to qualify as indirect the remaining interceptions for which the appellant requested authorization for use in the proceedings pending before it, as having a fortuitous or occasional nature.

2.1.– The defense of the Senate raises, instead, the inadmissibility of the appeal for lack of its subjective prerequisite, since the judge of the preliminary hearing would lack active legitimacy to appeal against the denial of the use of interceptions concerning a parliamentarian, given that the related request – and, correlatively, the appeal before this Court of the related denial opposed by the Chamber to which the parliamentarian belongs – would be the competence of only the judge for preliminary investigations.

In this sense, the clear literal wording of art. 6 of Law no. 140 of 2003, which, in assigning – in its various paragraphs – a specific functional competence to the judge for preliminary investigations in relation to everything concerning the examination for evidentiary purposes of the interceptions in question, would preclude the intervention of judges of different phases and levels as, in the case in question, the judge of the preliminary hearing, who, therefore, would not be the holder of any attribution to be protected through the conflict of attribution of powers between State authorities.

2.2.– The objection is not founded.

The identification, made by art. 6, paragraph 2, of Law no. 140 of 2003, of the judge for preliminary investigations as the authority delegated to request the authorization provided for therein cannot, in fact, be understood as attributive of an unchangeable competence, as such precluding the possibility that that same request be made by other judicial authorities however called to use in court the interceptions concerning a parliamentarian.

It is indeed true that the Judge of the Preliminary Investigations can make such a request when, during the preliminary investigations, he must actually use the evidentiary material captured by intercepting the communications of a parliamentarian in view of the adoption of an act subject to authorization. However, this does not preclude that a similar intervention by the Judge of the Preliminary Investigations does not necessarily occur in every case, so that it cannot be excluded at all that other judges, operating in different phases of the proceedings, must use the interceptions concerning a parliamentarian and therefore find themselves in the need to request authorization.

In opining in the terms of the defense of the Senate of the Republic, in fact, it should be imagined that that unchangeable functional competence requires, in order to be effectively operative, an incidental procedure by which the public prosecutor is required, even if only in view of the request for committal for trial, to obtain from the Judge of the Preliminary Investigations a measure of validation of the use of the aforementioned interceptions, within the scope of which to evaluate the existence of the prerequisites for requesting subsequent authorization from the Chamber to which the parliamentarian belongs.

However, not only is there no trace of this necessary incidental procedure, but the case law of legitimacy has constantly admitted that the so-called separate hearing referred to in art. 268, paragraph 6, of the Code of Criminal Procedure – during which art. 6, paragraph 2, of Law no. 140 of 2003 establishes that the confrontation between the parties must take place in view of the use of interceptions that involve the parliamentarian – can very well be held before the judge of the preliminary hearing (Court of Cassation, second criminal section, judgment 16 December 2020-10 February 2021, no. 5286).

Therefore, what is relevant for the purpose of identifying the judicial authority required to request the authorization in question is not the abstract assignment of competence to the Judge of the Preliminary Investigations, but the concrete exercise of the power to use the evidentiary material constituted by the interceptions, with respect to which the set of fulfilments governed by art. 6 of Law no. 140 of 2003 acts as a guarantee of the same prerogatives of the intercepted parliamentarian, so as to impose a non-strictly literal interpretation of the aforementioned art. 6, paragraph 2.

Moreover, it is beyond doubt that, in the case in question, the Judge of the Preliminary Hearing was responsible for ruling on the need to use the interceptions concerning Senator Siri following the request expressly made in this regard by the Public Prosecutor's Office at the Court of Rome at the preliminary hearing of 14 April 2021.

Also with respect to this profile, therefore, the admissibility of the appeal must be declared.

3.– Proposing a further objection of inadmissibility, the defense of the Senate of the Republic believes that the objective prerequisite of the conflict is also lacking, because the very possibility of authorizing *ex post* the use of interceptions captured fortuitously would fall outside the scope of the guarantee contained in art. 68, third paragraph, of the Constitution.

According to the respondent, in fact, the circumstance that art. 68, third paragraph, of the Constitution establishes only a mechanism of authorization *ad acta* of a preventive nature would lead to the belief that the mechanism of subsequent authorization for the use of interceptions that have not been previously authorized «would circumvent the constitutional will», allowing the parliamentarian «to be caught "by surprise” by merely fortuitous circumstances, where such surprise is deliberately excluded through the constitutional provision of authorization *ad acta*».

With this objection of inadmissibility, in substance, the constitutional illegitimacy of art. 6 of Law no. 140 of 2003 is raised, in the part in which it allows the usability of the communications of the parliamentarian captured fortuitously, because it would conflict with «the only constitutionally conceivable interpretation» of art. 68, third paragraph, of the Constitution, according to which «the interceptions of the parliamentarian can take place and be used where "preventively" authorized […] to avoid disturbing the functionality of his activities and consequently that of the body to which he belongs».

3.1.– This objection is also not founded, due to the manifest lack of merit of the question of constitutional legitimacy of art. 6, paragraph 2, of Law no. 140 of 2003, which it underlies.

The assumption from which the respondent starts is that art. 68, third paragraph, of the Constitution would admit, as the only type of interceptions potentially usable in court against members of Parliament, those subject to the preventive authorization governed by art. 4 of Law no. 140 of 2003, with the consequence that interceptions captured on the lines of non-parliamentary subjects in which members of Parliament have participated should be considered unusable as, at root, illegitimately acquired.

This assumption cannot be shared.

In the interpretation and application of the provisions through which art. 68, third paragraph, of the Constitution, has been implemented, that is, first of all, arts. 4 (for "direct" and "indirect" interceptions) and 6 (for "occasional" interceptions) of Law no. 140 of 2003, this Court has constantly adhered to the principle that the constitutional guarantee «does not aim to protect an individual right, but to protect the freedom of the function that the subject exercises, in accordance with the very nature of parliamentary immunities, primarily aimed at protecting the autonomy and decision-making independence of the Chambers with respect to undue intrusions by other powers, and only instrumentally intended to have their effects reverberate in favor of the persons invested with the function (judgment no. 9 of 1970)» (judgment no. 227 of 2023, which refers to judgments no. 157 of 2023, no. 38 of 2019, as well as order no. 129 of 2020; more recently, judgment no. 104 of 2024).

With regard to interceptions directly or indirectly aimed at the entry of the authorities responsible for the investigations into the communicative sphere of the parliamentarian, the preventive authorization is instrumental to the safeguarding of parliamentary functions, «wishing to prevent the listening of reserved conversations by the judicial authority from being unduly aimed at affecting the performance of the electoral mandate, becoming a source of conditioning and pressures on the free expression of the activity», without the purpose of safeguarding the confidentiality of the parliamentarian's communications as such being relevant, since this latter right «finds recognition and protection, at a constitutional level, in art. 15 of the Constitution, according to which the limitation of the freedom and secrecy of communications can only take place by a motivated act of the judicial authority, with the guarantees established by law» (judgment no. 390 of 2007).

For the interceptions that occasionally involve a parliamentarian, because they are carried out on the lines of third parties, «the possibility that the execution of the act is an expression of a persecutory attitude – or, in any case, of a distorted use of judicial power against the member of Parliament, aimed at unduly interfering with the free exercise of his functions – remains excluded, as a rule, precisely by the accidental nature of the entry of the parliamentarian into the listening area» (again, judgment no. 390 of 2007).

The phrase «as a rule», which according to the defense of the Senate of the Republic would demonstrate the intrinsic harmful effect of this type of interception for the serenity of the performance of the mandate, is only intended to mean that the assessment made by the judge regarding the accidental nature of the interceptions is not absolute and unchallengeable, and the Chamber to which the parliamentarian belongs can – as, moreover, occurred in the case in question and, recently, in the