ORDER NO. 94
YEAR 2026
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has issued the following
ORDER
in the proceedings for a conflict of attribution between powers of the State arising from the failure to request authorization from the Senate of the Republic to utilize evidentiary material in criminal proceeding no. 32727/2023 R.G.N.R. - 6582/2024 R.G.G.I.P. against Senator Daniela Garnero Santanchè, brought by the Senate of the Republic, with an appeal filed at the Registry on January 30, 2026, and entered as no. 1 in the register of conflicts between powers of the State for 2026, admissibility phase.
Heard in the chambers on May 4, 2026, by Judge Rapporteur Giovanni Pitruzzella;
deliberated in the chambers on May 4, 2026.
Considering that, by an appeal filed on January 30, 2026 (reg. confl. pot. no. 1 of 2026), the Senate of the Republic has initiated a conflict of attribution between powers of the State against the Public Prosecutor’s Office at the Ordinary Court of Milan, in relation to the acquisition, within the scope of criminal proceeding no. 32727/2023 R.G.N.R. - 6582/2024 R.G.G.I.P., of "e-mail contents” exchanged by Senator Daniela Garnero Santanchè and of "covert audio recordings,” made by a private party, of conversations in which said Senator—a co-defendant in the cited proceeding—had participated, as well as in relation to their utilization for the purposes of the subsequent request for indictment;
that, according to the petitioner, such acquisition, in the absence of the necessary request for authorization from the Chamber to which the Senator belongs, impaired the attributions guaranteed to it by Article 68, third paragraph, of the Constitution;
that, regarding the admissibility of the conflict, the petitioner’s standing to sue is established, as it pertains to each of the two Parliamentary Assemblies for the protection of their respective prerogatives and attributions;
that, likewise, the standing to be sued of the Public Prosecutor is established, as they are vested with the constitutionally guaranteed attribution regarding the mandatory exercise of criminal prosecution;
that the "‘constitutional tone’ of the attribution” of the Senate of the Republic infringed by the omissive conduct of the Public Prosecutor is "evident with reference to the system of parliamentary immunities” provided for in Article 68, third paragraph, of the Constitution;
that, in point of fact, the Senate of the Republic states the following:
– Senator Santanchè, proclaimed on March 14, 2018 (XVIII Legislature), is currently a defendant (no. 6582/2024 R.G.G.I.P.) for aggravated fraud for the receipt of public funds (Article 640-bis of the Penal Code) and, in particular, of "so-called Covid wage supplementation” subsidies for the employees of Visibilia Editore S.p.A. and Visibilia Concessionaria S.r.l., companies for which she held administrative positions;
– within the scope of the aforementioned criminal proceeding, registered against the Senator on September 21, 2023, the Prosecutor’s Office had acquired e-mail correspondence that "involves” her, also exchanged during the term of her parliamentary mandate, and covert recordings of private conversations, which took place even at her domicile and in which the same Senator had participated between November 27, 2019, and February 4, 2022;
– regarding the e-mails, the acquisition of the correspondence occurred on two occasions: on July 7, 2023, judicial police officers of the Public Prosecutor’s Office of Milan received from a lawyer of the National Commission for Companies and the Stock Exchange (CONSOB) a "USB flash drive” containing, among other things, e-mails sent by or destined for the Senator, "already acquired by Consob from Mrs. [F. B.], the informant”;
on November 22, 2023, the same judicial police officers, on the occasion of the summary witness testimony given by F. B., acquired into the records a hard disk containing, among other things, the correspondence already produced to CONSOB and "involving the Senator”;
– regarding the recordings of the conversations, the same judicial police, on November 8, 2023, concurrently with the summary information provided by E. M., acquired a "USB flash drive” containing the covert recording of seven conversations made by the latter, in five of which Senator Santanchè had participated;
– of the recorded conversations, the Prosecutor’s Office subsequently ordered the transcription, which was filed in the investigation records;
– the results of the e-mails and conversations were used in the proceeding against the Senator to formulate the request for indictment, being included in the file made available to the preliminary hearing judge;
– the mentioned sources of evidence were acquired, on April 11, 2024, in another parallel proceeding (no. 32064/2022 R.G.N.R.) assigned to the same representatives of the Public Prosecutor;
– in that latter proceeding, moreover, the Prosecutor’s Office had already "acquired [...] the e-mail inboxes identified by the domains in use” by the company Visibilia Editore S.p.A. and, by an act dated August 4, 2023, had ordered the separation of the e-mail communications in which the Senator appeared as "sender, recipient, or CC recipient,” in order to "implement what was established by the Constitutional Court with Judgment no. 170/23”;
– with specific reference to the e-mails, therefore, in the context of the parallel proceeding, "what was on one hand [...] separated from the records pending potential authorization from Parliament, on the other hand was acquired”;
– having taken note of the resolution of the Senate of the Republic approving the proposal of the Board for Elections and Parliamentary Immunities to initiate a conflict of attribution, the preliminary hearing judge suspended the proceedings and set an interlocutory hearing for February 20, 2026;
that, on the merits, the grounds for the conflict are "essentially summarized” in the cited resolution of the Board, according to which, in light of this Court’s Judgment no. 170 of 2023, e-mail messages are included in the legal notion of correspondence and, also in light of Judgment no. 38 of 2019, recordings made "covertly or fraudulently” by private parties are attributable to the interception of conversations referred to in Article 68, third paragraph, of the Constitution;
that, more specifically, regarding the acquisition of the e-mails, the grounds for the merits of the appeal "would rely” on the "full assimilation of telematic or electronic correspondence to the broader category of correspondence” relevant for the effects of Articles 15 and 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 regarding criminal proceedings against high State officials);
that the protection granted by the Constitution to correspondence concerns, in fact, any communication of human thought between two or more determined persons, carried out in a way other than face-to-face conversation, and regardless of the medium used, which evolves over time and in correlation with technological innovation (citations are made to this Court’s Judgments no. 170 and no. 2 of 2023);
that e-mail correspondence, therefore, falls fully within the sphere of protection of Article 15 of the Constitution, which allows its limitation only by a reasoned act of the judicial authority and with the guarantees established by law;
that, all the more so, this would apply to parliamentarians: Article 68, third paragraph, of the Constitution—the petitioner continues—requires the authorization of the Chamber to which the member belongs to subject parliamentarians to the seizure of correspondence, in order to protect them from illegitimate judicial interference in the exercise of their representative mandate (reference is made to this Court’s Judgment no. 227 of 2023);
that, in turn, the implementing regulations under Article 4, paragraph 1, of Law no. 140 of 2003 provide that the competent judicial authority must request prior authorization, since it is the substantial content (the correspondence itself) and not the container ("the IT device in which it is held”) that represents the object of the acquisition;
that it is also "established in the living law” that even messages already received and read retain the nature of correspondence, without degrading into a "historical document,” at least as long as they have not, due to the passage of time, lost all character of topicality in relation to the interest in their confidentiality (reference is made, again, to this Court’s Judgment no. 170 of 2023);
that the nature of correspondence—the Senate of the Republic continues—implies the recognition of constitutional guarantees regardless of "criminal procedural categorization”: the United Chambers of the Court of Cassation recently specified that, when documentary evidence concerns communications exchanged confidentially between a determined number of people, regardless of the technical medium employed for that purpose, it is necessary to ensure the protection provided by Article 15 of the Constitution, so that the acquisition into the proceedings must be ordered by a reasoned act of the judicial authority and with the guarantees established by law (reference is made to the judgment of February 29–June 14, 2024, no. 23755);
that, along the same lines, the Court of Cassation further affirmed that, even when it occurs through the production of a person informed of the facts, the mere acquisition of correspondence as a document, pursuant to Article 234 of the Code of Criminal Procedure, is insufficient in the face of the guarantees ensured by Article 15 of the Constitution;
that, according to such jurisprudence, therefore, the acquisition of WhatsApp messages—and the same must apply to e-mails—would always postulate the seizure, in the forms provided for by Article 254 of the Code of Criminal Procedure, of the cellular phone or, in any case, the electronic device where they were stored and, therefore, the necessary intervention of the Public Prosecutor (reference is made to the judgment of the Court of Cassation, First Criminal Section, October 17–November 28, 2024, no. 43444);
that, just as clearly, with respect to the seizure of correspondence, the targeted or occasional nature of the act would not be taken into consideration, as prior authorization is required in any case, pursuant to Article 4, paragraph 1, of Law no. 140 of 2003 (reference is made, once again, to Judgment no. 170 of 2023);
that, regardless of the acquisition of the container within which the e-mails exchanged by the parliamentarian were kept, the Public Prosecutor’s Office, upon becoming aware of the existence of correspondence protected by Article 68, third paragraph, of the Constitution, should have ceased the acquisition and, wishing to use such correspondence, should have requested authorization from the Chamber to which she belongs; on the contrary, the public prosecutor not only acquired them but also analyzed and used them for the exercise of criminal prosecution, subsequently making them available to the GUP (Preliminary Hearing Judge) seized of the indictment request;
that, regarding the acquisition of recordings of conversations between persons present, the Senate of the Republic argues that the "constitutional asset” comprehensively protected by the first part of the third paragraph of Article 68 of the Constitution is linked to the principle of the free exercise of the elective mandate;
that, in this substantial perspective, it would be "completely misleading to insist here and there on the well-known jurisprudence” of the Court of Cassation which defines—moreover, in no case with specific reference to the specific case now of interest (the interception of conversations of incumbent parliamentarians)—the phonographic recording of face-to-face conversations, carried out clandestinely by one of the participants, as documentary evidence, pursuant to Article 234 of the Code of Criminal Procedure, not subject, therefore, to the requirements of Articles 266 et seq. of the Code of Criminal Procedure regarding environmental interceptions (reference is made to the judgments of the United Criminal Chambers of March 28–July 28, 2006, no. 26795, and May 28–September 24, 2003, no. 36747);
that, in this direction, the phrase "in any form,” which broadly qualifies the interceptions subject to authorization, present in the amended text of Article 68, third paragraph, of the Constitution, acquires "a textual significance that is probably decisive”: this phrase highlights the intention to guarantee the parliamentarian with regard to any type of interception, however carried out, of their conversations (reference is made to this Court’s Judgment no. 390 of 2007);
that, in the same direction, interpretive aid also comes from this Court’s Judgment no. 135 of 2002, where it was stated that "the capture of images in a private home can well manifest, in concrete terms, as a form of interception of communications between persons present”: all the more so, this argument would apply with reference to video or sound recordings of conversations in which an incumbent parliamentarian takes part, made clandestinely "by third parties, private individuals, who are present”;
that, as further proof of the validity of the reported position, the well-known constitutional jurisprudence on telephone logs of utilities registered to incumbent parliamentarians should also be considered (reference is made to Judgment no. 38 of 2019): if the logs in question are qualified as interceptions for the purposes of protecting the confidentiality of a parliamentarian’s communications, a fortiori, recordings made in a covert manner by a private individual "who ‘phonocaptures’ snippets of conversations with the live voice of an incumbent parliamentarian and which are then acquired and transcribed in full during the course of a criminal proceeding” against them should be considered as interceptions of conversations, in the meaning posed by the constitutional provision;
that the parliamentary prerogative under Article 68, third paragraph, of the Constitution—the breadth of which would stem not only from its rationale but also from the very literal tenor of the constitutional provision—could, then, only render "irrelevant” aspects such as the impartiality or lack thereof of the subject proceeding to record, the prior understanding or lack thereof with the judicial authority, the physical presence at the moment of the capture, the covert nature of the recording in the presence of others, or the potential atypical configuration of capture between persons present as a "form of phonic memorization of a historical fact”;
that phono-recording—however and by whomever carried out—and the subsequent transcription of a parliamentarian’s conversations for the purposes of a potential procedural acquisition could not, therefore, fail to be subject to the authorization regime under Article 68, third paragraph, of the Constitution;
that, further, the thesis proposed to guarantee parliamentary prerogatives could be "further corroborated by the additional reference to the notion of ‘seizure of correspondence,’ protected by the last part of the third paragraph of Article 68 of the Constitution”: the acquisition of "video recordings” would, that is, constitute a particular hypothesis of seizure of correspondence;
that, in particular, "recorded conversations” could fall within the notion of correspondence and of "any other form of communication” protected by Article 15 of the Constitution, "in that the recording is not limited to a mere function of extemporaneous documentation of the conversations between the two interlocutors, but fixes—so to speak, ‘forever’—on an electronic medium the content of a communicative exchange, making it accessible and usable even after its completion”;
that, in conclusion, the petitioner has requested that the violation of its constitutional prerogatives guaranteed by Article 68, third paragraph, of the Constitution be ascertained and, consequently, that the nullity of "all the acts of the criminal proceeding [...] implemented by the judicial authority by acquiring and using the aforementioned sources of evidence” be declared, and, in particular, of the indictment request of May 2, 2024, which expressly indicates among the latter "the cited acquisitions of correspondence and captures of conversations” of Senator Santanchè.
Considering that, with the appeal indicated in the heading, the Senate of the Republic has initiated a conflict of attribution between powers of the State against the Public Prosecutor’s Office at the Court of Milan, in relation to the acquisition, within the scope of criminal proceeding no. 32727/2023 R.G.N.R. - 6582/2024 R.G.G.I.P., of "e-mail contents” exchanged by Senator Santanchè and of "covert audio recordings,” made by a private party, of conversations in which the same Senator, a co-defendant in the cited proceeding, had participated, as well as in relation to their utilization for the purposes of the subsequent request for indictment;
that, in the opinion of the petitioner, such acquisition and utilization, having occurred without the authorization of the Chamber to which the Senator belongs, would have infringed upon its attributions guaranteed by Article 68, third paragraph, of the Constitution;
that, in the current phase of the proceedings, this Court is called to deliberate, in chambers and without contradictory proceedings, regarding the existence of the subjective and objective requirements prescribed by Article 37, first paragraph, of Law no. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), namely to decide whether the conflict has arisen between bodies competent to definitively declare the will of the power to which they belong and whether it has as its object the delimitation of the sphere of attributions determined for the aforementioned powers by constitutional norms, with all further questions remaining unaffected, including those regarding admissibility (among the most recent, Orders no. 80 of 2026, no. 168 and no. 133 of 2025);
that, regarding the subjective requirement, first of all, the active standing of the Senate of the Republic exists, as it is competent to definitively declare the will of the power it embodies, in relation to the applicability of the prerogatives under Article 68, third paragraph, of the Constitution (among many, Orders no. 168 and no. 133 of 2025, no. 191 and no. 62 of 2023, no. 261 of 2022);
that, likewise, the passive standing of the Public Prosecutor’s Office at the Ordinary Court of Milan exists, since "the same nature of power of the State must also be recognized for the public prosecutor—and, in particular, for the public prosecutor of the Republic (Judgment no. 1 of 2013 and Order no. 193 of 2018)—as it is vested with the constitutionally guaranteed attribution inherent to the mandatory exercise of criminal prosecution (Article 112 of the Constitution), to which is connected the direct and exclusive authority of the investigations aimed at it (ex plurimis, Judgments no. 88 and no. 87 of 2012; Orders no. 273 of 2017, no. 217 of 2016, no. 218 of 2012, no. 241 and no. 104 of 2011, no. 276 of 2008 and no. 124 of 2007): a function with reference to which the public prosecutor, as a non-judicial 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 and Order no. 261 of 2022)” (Orders no. 133 of 2025 and no. 62 of 2023);
that, regarding the objective requirement, the subject matter of the conflict exists, since the petitioner complains of the infringement of its sphere of attributions, guaranteed by Article 68, third paragraph, of the Constitution, which requires the authorization of the Chamber to which the member belongs to subject members of Parliament to the interception, in any form, of conversations or communications, and to the seizure of correspondence (among the most recent, again Orders no. 168 and no. 133 of 2025, regarding interceptions, as well as Order no. 261 of 2022, regarding the seizure of correspondence);
that, therefore, the subject matter of a conflict exists, the resolution of which falls under the competence of this Court;
that, pursuant to Article 37, fourth paragraph, of Law no. 87 of 1953, the notification of the appeal and of this order must also be ordered to the Chamber of Deputies, given the identity of the constitutional position of the two branches of Parliament in relation to the issues of principle to be addressed (ex plurimis, Orders no. 168 and no. 133 of 2025, no. 179 of 2023, no. 250 of 2022, no. 91 of 2016 and no. 137 of 2015).
for these reasons
THE CONSTITUTIONAL COURT
1) declares admissible, pursuant to Article 37 of Law no. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), the appeal for conflict of attribution between powers of the State indicated in the heading, brought by the Senate of the Republic against the Public Prosecutor’s Office at the Ordinary Court of Milan;
2) orders:
a) that the Registry of this Court provide immediate notice of this order to the Senate of the Republic;
b) that the appeal and this order be notified, by the petitioner, to the Public Prosecutor’s Office at the Ordinary Court of Milan and to the Chamber of Deputies, within the period of sixty days from the notice referred to in point a), to be subsequently filed, with proof of the notification having taken place, at the Registry of this Court within the period of thirty days provided for by Article 26, paragraph 3, of the Supplementary Norms for proceedings before the Constitutional Court.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 4, 2026.
Signed:
Giovanni AMOROSO, President
Giovanni PITRUZZELLA, Rapporteur
Igor DI BERNARDINI, Registrar
Filed in the Registry on May 28, 2026
The anonymized version conforms, in the text, to the original