ORDER NO. 106
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, 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 State powers, arising from the use of telephone interceptions involving Senator Roberto Maria Ferdinando Scarpinato, which were made available for review to the members of the Parliamentary Commission of Inquiry into the phenomenon of the Mafia and other criminal associations, including foreign ones, in the absence of authorization from the Senate of the Republic, initiated by Senator of the Republic Roberto Maria Ferdinando Scarpinato, with an appeal filed at the Registry on December 30, 2025, and registered under no. 10 of the 2025 register of conflicts between State powers, admissibility phase, the hearing for which was scheduled for the chambers session of May 4, 2026.
Having heard, in the chambers session of May 5, 2026, the Reporting Judge Francesco Saverio Marini;
deliberated in the chambers session of May 5, 2026.
Considering that, by an appeal filed on December 30, 2025 (reg. confl. pot. no. 10 of 2025), Senator Roberto Maria Ferdinando Scarpinato has initiated a conflict of attribution between State powers against the Parliamentary Commission of Inquiry into the phenomenon of the Mafia and other criminal associations, including foreign ones, established by Law no. 22 of March 2, 2023, entitled "Establishment of a Parliamentary Commission of Inquiry into the phenomenon of the Mafia and other criminal associations, including foreign ones" (hereinafter, also: the Parliamentary Commission or the Commission), its President, its Bureau, as well as against the Chamber of Deputies and the Senate of the Republic, in relation to the use by the aforementioned Commission, by making them available to its members, of the recordings of the petitioner's telephone conversations and electronic messaging, transmitted on September 5, 2024, by the Public Prosecutor's Office at the Ordinary Court of Caltanissetta, in the absence of authorization from the Senate of the Republic;
that the petitioner specifies that he is not a suspect in the criminal proceedings, but that he was intercepted on thirty-three occasions as an interlocutor of G. N., a former investigative magistrate, who is under investigation by the Public Prosecutor's Office of Caltanissetta and in that capacity subject to interceptions;
that the Parliamentary Commission of Inquiry, by decision of its President, acquired such documentation, which is abstractly relevant to the object of its activities;
that, subsequently, the President granted the members of the Commission access to said documentation;
that the conflict concerns the decision to "legally utilize" the interceptions, by offering them for review, without having previously requested the authorization from the Senator’s house of membership required for this purpose by Article 6 of Law no. 140 of June 20, 2003 (Provisions for the implementation of Article 68 of the Constitution and concerning criminal proceedings against high State officials);
that the petitioner states that he has "activated all the remedies provided for by the legal system by addressing the Presidents of both Houses, the President of the Anti-Mafia Commission, and the Council for Elections and Parliamentary Immunity, without yielding any useful effect";
that, in particular, the petitioner requested the President of the Senate to initiate the necessary procedure to raise a conflict of attribution against the Public Prosecutor's Office of Caltanissetta or to refer the matter to the Council for Elections and Parliamentary Immunity;
that on March 18, 2025, the Council, by majority vote, rejected the rapporteur's proposal to raise the conflict;
that, regarding admissibility, the petitioner refers to the case law of this Court which, starting from Order no. 17 of 2019, has recognized each member of the Houses, in proceedings for conflict of attribution, as having the nature of a State power, with reference to the "sphere of prerogatives pertaining to the individual parliamentarian, distinct and separate from those pertaining to the Assembly to which they belong";
that, in the petitioner's opinion, this includes the guarantee provided by Article 68, third paragraph, of the Constitution, namely that the House of membership must authorize the interception, in any form, of conversations or communications, as delineated by Articles 4 and 6 of Law no. 140 of 2003;
that the petitioner believes this guarantee is "aimed at protecting a dual order of values of absolute constitutional importance, structurally different from one another," namely that of "the autonomy of the Houses from external interference" (directly protected by Article 68, second and third paragraphs, of the Constitution) and that of "the free exercise of the mandate by individual parliamentarians" (protected by Article 67 of the Constitution and, by reflection, by Article 68 of the Constitution) and that only "from the combined [provisions] of both" norms "is it possible to have an autonomous and free Parliament, because it can be so only if composed of parliamentarians who are in turn autonomous and freed from external conditioning in the exercise of their functions";
that Article 67 of the Constitution, in conjunction with Article 68 of the Constitution, guarantees each parliamentarian "an interest of constitutional importance 'indirectly protected' (or 'by reflection', or 'instrumentally' [...]) in the free exercise of the mandate representing the Nation as a genuine 'legitimate interest under constitutional law'";
that, in relation to the latter, it would not be admissible to entrust "to the arbitrary will of the parliamentary majority of the moment," especially in the absence of "effective internal parliamentary remedies," the protection of the parliamentarian from "external or internal conditioning," it being the task of the Senate, in the case at hand, to evaluate whether the use of the interceptions "was useful for the institutional purposes of the Commission or, rather, for mere purposes of political struggle and personal discredit";
that, like the President of the Republic, each member of the Houses enjoys a particularly intense guarantee of confidentiality which, in light of Articles 67, 68, 71, 72, and 82 of the Constitution, they could protect through a conflict of attribution between State powers directly, even against the Parliamentary Commission of Inquiry;
that, on the merits, the petitioner cites Article 82, second paragraph, of the Constitution, which grants the parliamentary commission of inquiry, in its investigations and examinations, the same powers and limitations as the judicial authority;
that it follows that the Parliamentary Commission, like the judicial authority, could not have acquired and used the interceptions without the authorization of the Senate, because "[t]he Constitution does not distinguish whether the interceptions [are] intended for judicial or political use";
that, contrary to what was deduced by the President of the Parliamentary Commission in the note of February 17, 2025, for which annulment is requested, the Constitution does not establish such guarantees only with regard to "illegitimate judicial inferences" in the exercise of the investigative function, but with reference to "interferences by any other State power [...] without any limitation";
that, according to the petitioner, the Parliamentary Commission of Inquiry, and through it its President, should have applied Article 6 of Law no. 140 of 2003 to the case, by requesting the Senate’s authorization for the use of the interceptions, even though such provision is addressed to the judicial authority, if necessary through a constitutionally compliant interpretation;
that, should this Court instead find in Article 6 of Law no. 140 of 2003 an insurmountable regulatory obstacle to proceeding in this way, the petitioner requests the self-referral of the question of constitutional legitimacy of the same Article 6, in reference to Articles 3, first paragraph, 67, 68, second and third paragraphs, and 82, second paragraph, of the Constitution, in the part where it does not provide that Law no. 140 of 2003, as compatible, also applies to parliamentary commissions of inquiry that intend to use interceptions of communications or communication records in which members of Parliament have participated.
Considering that, with the appeal indicated in the heading (reg. confl. pot. no. 10 of 2025), Senator Roberto Maria Ferdinando Scarpinato has initiated a conflict of attribution between State powers against both the Parliamentary Commission of Inquiry into the phenomenon of the Mafia and other criminal associations, including foreign ones, established by Law no. 22 of 2023, and its President and Bureau, as well as against the Chamber of Deputies and the Senate of the Republic;
that the conflict concerns the decision of the aforementioned Parliamentary Commission to use, by offering them for review to its members, without the Senate's authorization, the recordings of telephone interceptions and instant messaging of the petitioner transmitted to the Commission itself by the Public Prosecutor's Office of Caltanissetta: interceptions ordered against a third party, of whom the petitioner was an interlocutor;
that such interceptions were carried out in the context of a preliminary investigation concerning allegations of Mafia-type offenses, to which Senator Scarpinato is a stranger;
that the petitioner claims that the use of the conversations and messages exchanged with the investigated person, by making them available to the members of the Commission, should have been authorized by his house of membership, pursuant to Article 68, third paragraph, of the Constitution and Articles 4 and 6 of Law no. 140 of 2003;
that, by omitting to request authorization, the Parliamentary Commission allegedly impaired the prerogatives to which the member of the Houses is personally and directly entitled, pursuant to Article 68, second and third paragraphs, of the Constitution, also in reference to Articles 67, 71, 72, and 82 of the Constitution, as well as in relation to Articles 4 and 6 of Law no. 140 of 2003;
that, in the current phase of the proceedings, this Court is called to deliberate, in chambers and without an adversarial hearing, on 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), that is, to decide whether the conflict arises between bodies competent to definitively declare the will of the power to which they belong and for the delimitation of the sphere of attributions determined for the various powers by constitutional norms;
that Article 37, first paragraph, of Law no. 87 of 1953 provides that the conflict between State powers must arise "between bodies competent to definitively declare the will of the power to which they belong and for the delimitation of the sphere of attributions determined for the various powers by constitutional norms";
that, within the scope of the sphere of attributions determined for the legislative power by constitutional norms, the individual parliamentarian, as a rule, does not definitively declare the will of the power to which they belong;
that, however, with Order no. 17 of 2019, repeatedly confirmed by subsequent case law, this Court has recognized the admissibility of conflicts initiated by individual parliamentarians, in the presence of certain specific conditions;
that, first of all, constitutional attributions of the individual parliamentarian must be at stake; in constitutional jurisprudence, reference has been made, for example, to prerogatives relating to the legislative process, such as legislative initiative and the proposal of amendments;
that the conflict can, then, be initiated by the individual parliamentarian only against other parliamentary bodies, being aimed exclusively at avoiding the petitioner's prerogatives being subject to the arbitrary will of the majority. With respect to subjects outside the Houses, such as, in particular, the Government or the judicial authority, the rule of absorption applies, in the sense that the constitutional attributions of individual parliamentarians are protected indirectly, as a concurrent attribution is recognized to the collegial body of which the parliamentarian is a member and which may well act before this Court through the instrument of the conflict;
that only in the hypothesis where, despite the prerequisites being met, this protection is not activated, the individual parliamentarian has the faculty to initiate a conflict of attribution against the body of which they are a member that has not protected them;
that, finally, the alleged violation must be so serious as to impair the attributions of the individual parliamentarian that find direct foundation in the Constitution, and not only in internal regulatory or sub-regulatory sources of the Houses, as this would concern mere *interna corporis*, to which the jurisdiction of this Court does not extend, the object of which cannot be political dynamics beyond what constitutional sources regulate. In this regard, it has been noted that "it is necessary that the Houses be recognized a wide margin of appreciation in the application of parliamentary rules" and that the Court's review be rigorous, "[i]n due respect for the autonomy of Parliament" (Order no. 17 of 2019; subsequently, in the same sense, Order no. 80 and no. 15 of 2022, no. 188, no. 186 and no. 67 of 2021 and no. 129 of 2020);
that, compared to the case at hand, it is undoubted that Article 68 of the Constitution protects the function of the individual parliamentarian as a whole, which can be exercised both collegially – both within the Assembly and the internal branches of the Houses (commissions, including inquiry commissions, councils, and parliamentary groups) – and individually;
that, however, this Court has constantly affirmed that "the *ratio* of the guarantee provided for in Article 68, third paragraph, of the Constitution, 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, aimed primarily at the protection of the autonomy and decision-making independence of the Houses with respect to undue encroachments by other powers, and only instrumentally destined to have effects in favor of the persons invested with the function" (Judgment no. 38 of 2019 and Order no. 129 of 2020; furthermore, in the same sense, Judgments no. 227, no. 170 and no. 157 of 2023, no. 1150 of 1988 and no. 9 of 1970; Order no. 177 of 1998);
that it has also been specified that "this sphere of freedom does not manifest as a privilege of a political class, nor only as an individual guarantee of the members of the Houses, but also as a protection of the autonomy of parliamentary institutions, oriented in turn to the protection of an area of freedom of political representation. It is no coincidence that the defense of this parliamentary prerogative is not left to the interested party alone, but belongs to the Houses as their own attribution" (Judgment no. 379 of 1996);
that, therefore, the attribution to the individual parliamentarian of the guarantees protected by Article 68 of the Constitution is justified exclusively within the limits to which they serve the exercise, free from undue conditioning, of the functions that the Constitution assigns to them;
that, in principle and according to what has already been clarified, the protection of such attributions against the usurpation or impairment of them by other State powers belongs, in proceedings for conflict of attribution, to the House of membership;
that, in fact, illegitimate interference in the exercise of the parliamentary mandate directly affects the constitutional competencies of the latter, undermining its autonomy through the impairment of the attributions of its members;
that the conflict of attribution between State powers has the purpose of removing any "situation of conflict and uncertainty, which does not fit the issues of balance between State powers, which instead, relating to the guarantees of constitutional distribution of attributions, postulate that certainty and definitiveness of relationships be restored, in order to ensure the regular exercise of constitutional functions" (Judgment no. 116 of 2003; in the same sense, Order no. 188 of 2003);
that, consequently, it is not compatible with such a constitutional configuration of the conflict the hypothesis that its object be placed at the disposal of multiple subjects authorized to initiate it, according to different times and methods;
that in such cases, marked by the usurpation or impairment of the constitutional prerogatives of the parliamentarian by third State powers, the legitimacy to seek their protection before this Court therefore belongs exclusively to the parliamentary body and not to the individual, whose position is absorbed (Orders no. 178 of 2025, no. 151 of 2022, no. 67 of 2021 and no. 163 of 2018);
that, therefore, the individual parliamentarian must, for the purposes of admissibility, not only demonstrate that they are the holder of an attribution of their own, but that such attribution is not at the same time that of the House, as in this latter eventuality the aforementioned absorption of protection into the collegial body is realized;
that, however, the constitutional prerogatives of the parliamentarian, gathered in the bundle of attributions that the Constitution reserves for them personally, would remain without protection if their violation were to come from the House to which they belong;
that, therefore, subjective legitimacy must be recognized for the individual parliamentarian whenever they do not claim the power to replace the Houses, by initiating a conflict against a judicial authority, judging or investigative, or another body other than the parliamentary Assemblies themselves, but challenge the fact that the House of membership has not acted, in the exercise of the attributions that compete to it, to protect the parliamentarian, impairing their constitutional attributions;
that in the case at hand, however, the conflict does not have as its object the decision of the House of membership – with respect to which the active legitimacy of the individual parliamentarian would be abstractly configurable – not to initiate a conflict against the Public Prosecutor's Office of Caltanissetta or, potentially, the Parliamentary Commission of Inquiry itself;
that, instead, Senator Scarpinato expressly clarified in the appeal that he complains only about the conduct taken by the Parliamentary Commission, through its President and Bureau, consisting in having used, by offering them for review to the members of the Commission, the text of telephone interceptions and electronic messaging that involved him, without the authorization of the Senate provided for by Article 68, third paragraph, of the Constitution and Articles 4 and 6 of Law no. 140 of 2003;
that, by constant case law of this Court, the parliamentary commission of inquiry, for the purposes of conflict of attribution, is a power distinct from the Houses, as it is the holder of its own range of constitutional competencies pursuant to Article 82 of the Constitution (Judgment no. 231 of 1975; Orders no. 229 and no. 228 of 1975; subsequently, Orders no. 193 of 2018 and no. 73 of 2006);
that, consequently, the impairment denounced with the appeal does not come from the Senate, the petitioner’s house of membership to which it would have been up to pronounce on the authorization, but from a distinct State power;
that therefore there is no reason to derogate from the principle that the legitimacy of the individual parliamentarian to the conflict, where it exists in the abstract, is absorbed by that of the competent parliamentary body;
that, as noted, the legitimacy to initiate a conflict of attribution against the Parliamentary Commission would, if anything, have belonged to the Senate;
that, in short, this conflict is inadmissible, because the petitioner is not entitled to initiate it.
for these reasons
THE CONSTITUTIONAL COURT
declares inadmissible the conflict of attribution between State powers, initiated against the Parliamentary Commission of Inquiry into the phenomenon of the Mafia and other criminal associations, including foreign ones, its President, its Bureau, as well as against the Chamber of Deputies and the Senate of the Republic, by Senator Roberto Maria Ferdinando Scarpinato, with the appeal indicated in the heading.
Thus decided, in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 5, 2026.
Signed:
Giovanni AMOROSO, President
Francesco Saverio MARINI, Reporting Judge
Roberto MILANA, Director of the Registry
Filed at the Registry on June 16, 2026
The anonymized version is consistent in text with the original