JUDGMENT NO. 111
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, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has handed down the following
JUDGMENT
in the proceedings for a conflict of attribution between State powers arising from the collegiate order of the Ordinary Court of Modena, Criminal Section, of September 13, 2024, brought by the Senate of the Republic, with an appeal notified on December 10, 2025, filed with the Registry on January 7, 2026, registered under no. 4 of the Register of Conflicts between State Powers 2025, and published in the Official Gazette of the Republic no. 3, First Special Series, of the year 2026, merits phase.
Having regard to the intervention briefs of Carlo Amedeo Giovanardi and the Chamber of Deputies;
having heard Judge Rapporteur Emanuela Navarretta at the public hearing of April 14, 2026;
having heard the attorneys Mario Esposito for the Senate of the Republic, Giampaolo Maria Cogo for Carlo Amedeo Giovanardi, and Gaetano Pelella for the Chamber of Deputies;
deliberated in chambers on April 14, 2026.
Considerations of Fact
1.– By appeal filed on April 14, 2025 (reg. confl. pot. no. 4 of 2025), the Senate of the Republic initiated a conflict of attribution between State powers against the Ordinary Court of Modena, Criminal Section, in relation to the provision issued by said Court in proceedings no. 2109/2018 R.G.N.R., no. 7555/2018 R.G.G.I.P., and no. 251/2022 R.G., via a collegiate order dated September 13, 2024, insofar as it ordered the acquisition and utilization of video recordings secretly made (on July 12, July 19, and October 18, 2014) by A. B., pertaining to face-to-face conversations between him and Carlo Amedeo Giovanardi, then a Senator, as well as between the latter and third parties via telephone connection.
In the Senate's view, this provision infringes, in the contested part, upon the powers pertaining to the Parliamentarian's Chamber of origin, pursuant to Article 68, third paragraph, of the Constitution, in conjunction with Article 15 of the Constitution, and with Articles 4 and 6 of Law no. 140 of June 20, 2003 (Provisions for the implementation of Article 68 of the Constitution and regarding criminal proceedings against high officers of the State).
2.– As a matter of fact, the Senate reports that the provision originating the conflict was adopted within the scope of proceedings initially brought against several defendants, including Carlo Amedeo Giovanardi.
2.1.– The appellant specifies that, regarding the former Senator, whose position was subsequently severed from the others, two counts of indictment were formulated: one for the crimes of disclosure and utilization of official secrets (Art. 326 of the Criminal Code) and violence or threat to a political, administrative, or judicial body or its individual members (Art. 338 of the Criminal Code); and another for the crimes of contempt of a public official (Art. 341-bis of the Criminal Code) and violence or threat to a public official (Art. 336 of the Criminal Code).
Within the aforementioned proceedings, the Court of Modena, after rejecting the objections of inadmissibility and non-utilizability of evidence raised by the defense of Carlo Amedeo Giovanardi, initially acquired, on November 2, 2021, the video recordings at issue in the present conflict. These had been recovered from the memory of a mobile phone, subject to seizure, belonging to A. B., one of the suspects in the original joint proceeding.
2.2.– The appellant recalls that, on November 16, 2021, the Senate's Council for Elections and Parliamentary Immunity proposed to the Assembly to raise a conflict of attribution between State powers regarding the acquisition of said video recordings, to safeguard the prerogatives under Article 68, third paragraph, of the Constitution.
This proposal was not, however, examined by the Chamber, as it was superseded by the Senate’s decision, adopted by resolution on February 16, 2022, to recognize the non-justiciability provided for in Article 68, first paragraph, of the Constitution with respect to all contested crimes.
2.3.– The Senate then specifies that, in reference to the aforementioned provision, the Court of Modena raised a conflict of attribution between State powers, which was resolved by this Court in Judgment no. 218 of 2023.
Specifically, that ruling declared the appeal inadmissible, limited to the crime of contempt of a public official, and well-founded regarding the other counts, affirming that it was not within the Senate's power to resolve that the contested conduct constituted, pursuant to Article 68, first paragraph, of the Constitution, opinions expressed by a member of Parliament in the exercise of their functions.
2.4.– The appellant reports that, following said decision, the trial against Carlo Amedeo Giovanardi resumed, and the issue of the usability of the acquired video recordings was again raised.
The Court of Modena intervened once more on this matter and, with the collegiate order of September 13, 2024, in line with the conclusions already reached by the previous judging panel on November 2, 2021, decided to acquire and use the video recordings in question without the authorization of the Parliamentarian's Chamber of origin.
Consequently, the Council, on November 6, 2024, by a majority decision, proposed that the Senate raise a conflict of attribution between State powers for violation of Article 68, third paragraph, of the Constitution.
According to the Council's opinion, the judicial authority improperly failed to request authorization from the Senate for the use of the video recordings, which contained face-to-face conversations between A. B. and then-Senator Giovanardi, as well as telephone conversations between the latter and other persons; these recordings were made secretly by A. B. and acquired into the records following a seizure which was likewise not preceded by any authorization.
The Assembly approved the Council's proposal by a majority resolution on December 4, 2024.
3.– The Senate, after noting the "evident existence" of the subjective and objective prerequisites for admissibility, raised the conflict of attribution between State powers, challenging the interpretation presented by the Court of Modena in the order of September 13, 2024, which is reported in the following terms.
According to the judicial authority, the surreptitious recording (or video recording) of conversations among those present is a mere documentary proof, acquirable and usable according to Article 234 of the Code of Criminal Procedure. This case would imply a waiver of confidentiality by the parliamentarian, who had invited the interlocutor into their residence, and an acceptance of the eventuality or risk that the guest could "appropriate the conversations and images of the interlocutors through video recording and, thereby, remove them from the availability of others who had participated in the colloquy."
Consequently, the order subject to the conflict excludes that the surreptitious recording made among those present can be traced back to the paradigm of interception, due to the lack of prerequisites regarding the third-party nature of the capturer and the secrecy of the conversation, as well as to the notion of correspondence referred to in Article 68, third paragraph, of the Constitution.
The Senate contests said "logically inductive" interpretation and notes that "the very invitation to a confidential colloquy within a domestic setting, far from excluding it, would manifest and underscore its confidential character and would draw both the guest and the host into a sphere of privacy, with the corresponding mutual obligation of secrecy."
More precisely, the appellant argues for the necessary inclusion of the recordings at issue in the present judgment within the scope of the parliamentarian’s immunity based on the following arguments.
3.1.– First, the Senate claims a peculiar expectation of confidentiality for the parliamentarian, to safeguard the autonomy of their function. In this regard, it recalls what was argued by this Court concerning the necessity for all constitutional bodies "to have a particularly intense guarantee of confidentiality in relation to their respective communications concerning informal activities, on the premise that such guarantee – a general principle applicable to all citizens pursuant to Art. 15 of the Constitution – assumes specific contours and purposes if other constitutionally worthy interests come to light, such as the effective and free performance, for example, of parliamentary and governmental activity" (citing Judgment no. 1 of 2013). In particular, Article 68, third paragraph, of the Constitution prohibits – according to said ruling – resorting to "telephone interceptions or other invasive means of searching for evidence, unless following authorization granted by the competent Chamber."
3.2.– Subsequently, the Senate highlights the genesis of Article 68, third paragraph, of the Constitution and the replacement of the original, more circumscribed reference to "telephone and environmental interceptions" with the phrase "interceptions, in any form," which was intended to encompass every possible means of communication and any technical method of capture (citing Judgment no. 390 of 2007, point 5.1. of the Legal Considerations).
Furthermore, the appellant notes that video recordings made in the presence of others are inherently interceptions of sound and optical electromagnetic waves, and that the requirement of the third-party nature of the subject performing the capture should not be relevant for the purposes of Article 68, third paragraph, of the Constitution, or should be considered existent in any case, since the use of a capture device renders the interlocutor, in a broad sense, a third party with respect to those unaware of being recorded.
The appellant argues that the *a fortiori* argument supports this, rooted in the observation that the surreptitious video recording of a parliamentarian's conversations and communications evokes even more significant protection needs than those that led constitutional case law to include telephone logs within the guarantee of Article 68, third paragraph, of the Constitution (citing Judgment no. 38 of 2019).
3.3.– From another perspective, the Senate notes that a confidential conversation among those present would, in any event, fall "within the conceptual ambit of correspondence, which is not exhausted in the archetypal form of epistolary correspondence practiced at the time of the drafting of the Fundamental Charter, and in any case, it flows into it at least by equivalence, certainly falling within the scope of 'other forms of communication'," whose protection is positioned alongside that of correspondence by Article 15 of the Constitution.
In particular, the fixing of an exchange of conversations or private communications between specific persons on an electronic medium would have the effect of stabilizing their content, making it accessible even after the vocal colloquy has ended. The result, for the purposes of Article 68, third paragraph, of the Constitution and the related implementing legislative provisions, would not, therefore, be dissimilar to that produced by WhatsApp messaging, stored in the memory of an electronic device, which Judgment no. 170 of 2023 of this Court classified as correspondence.
3.4.– The same arguments would apply *a fortiori*, according to the Senate, with respect to the recording, secretly made by the bystander, of telephone calls between the parliamentarian and third parties.
3.5.– In conclusion, the Senate complains that the Court of Modena, with the order of September 13, 2024, acquired and declared usable the video recordings made secretly by A. B. These would, in fact, integrate the "dual profile of 'interception in any form of conversations or communications' and of seizure of correspondence, inclusive of every other form of confidential communication pursuant to Article 15 of the Constitution [...], thus causing harm to the sphere of attribution constitutionally guaranteed to the Senate of the Republic."
For these reasons, the appellant asks this Court to declare that it was not within the power of the Court of Modena to order the acquisition and utilization of the aforementioned video recordings without the authorization under Article 68, third paragraph, of the Constitution from the Chamber of origin of then-Senator Giovanardi, and, consequently, to annul the order of September 13, 2024.
4.– By order no. 168 of 2025, this Court, pursuant to Article 37, third and fourth paragraphs, of Law no. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), declared the conflict admissible, finding the subjective and objective prerequisites to be met.
Therefore, it ordered the notification of the introductory appeal and the admissibility order to the Senate of the Republic, to the Court of Modena, Criminal Section, and 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."
5.– By brief filed on January 27, 2026, Carlo Amedeo Giovanardi intervened in the proceedings, requesting the upholding of the appeal presented by the Senate of the Republic on April 14, 2025.
5.1.– Regarding the admissibility of his intervention, he emphasized that: i) at the time of the events, he held the office of Senator of the Republic; ii) the Court of Modena's order that gave rise to the conflict was adopted in the criminal proceedings pending against him; iii) said order ordered the acquisition and usability, as items of evidence, of video recordings secretly made by A. B. of conversations involving him and third parties with whom he had spoken via telephone.
The intervenor recalls that, according to this Court, although in proceedings for conflict of attribution, the intervention of subjects other than those legitimized to promote or resist the conflict is not generally permitted, such preclusion does not operate when the object of the conflict concerns, immediately and directly, the subjective situations of third parties, whose prejudice or safeguard depends on the outcome thereof (citing Judgments no. 157 of 2023 and no. 230 of 2017, as well as Order no. 269 of 2019). A similar contingency typically occurs when the intervenor is a party to common proceedings – and in particular to the proceedings that originated the conflict – whose results or effects are conditioned by the ruling of this Court (citing Judgments no. 259 of 2019, no. 169 of 2018, no. 107 of 2015, no. 224, and no. 221 of 2014).
Based on the aforementioned reconstruction, he argues for the admissibility of his intervention, as he is a defendant in the criminal proceedings in which the conflict of attribution between State powers arose.
In particular, the intervenor believes that the protection of the sphere of attributions guaranteed to the Chambers by Article 68, third paragraph, of the Constitution cannot be separated from the protection of each of the members who compose them, and he further points out that it depends on the outcome of the constitutional judgment whether he will be "judged in the criminal proceedings against him in the absence of the constitutional guarantees assured to his capacity as a parliamentarian."
5.2.– As for the merits, the intervenor contests the relevance of the jurisprudential references upon which the Court of Modena centered its decision.
First, he notes that the precedent of legitimacy (Court of Cassation, Joint Criminal Sections, Judgment no. 36747 of May 28-September 24, 2023), cited by the order subject to the conflict, refers to the criminal-procedural notion of interception and not to the broader phrasing adopted by Article 68 of the Constitution.
He then believes that the Court of Modena misrepresented the scope of Judgment no. 170 of 2023 of this Court, which, in focusing on the notion of correspondence, did not intend to exclude "conversations in the presence of others from 'interceptions'."
Moreover, the intervenor highlights how the conclusions of the Court of Modena are refuted by Judgment no. 38 of 2019 of this Court, which attributes to the interceptions covered by parliamentary guarantee the acquisition of telephone logs. He observes, in fact, that if the latter are classifiable as "interceptions of conversations or communications" pursuant to Article 68, third paragraph, of the Constitution, "surely and even more so, for the same reasons, the video recording made secretly by a private participant in conversations with a parliamentarian [could not] be defined and qualified as anything other than an 'interception of conversations or correspondence' in the meaning of the constitutional rule."
Finally, the intervenor contests the thesis according to which the acceptance of a colloquy with a person would constitute a tacit waiver of the prerogatives under Article 68, third paragraph, of the Constitution or the guarantees of confidentiality under Article 15 of the Constitution. Furthermore, he refutes the idea that the third-party requirement is lacking with respect to those who illegitimately and secretly capture a conversation. From this, he infers that the case at hand could not simply be referred to the regulatory framework of Article 234 of the Code of Criminal Procedure.
6.– By brief filed on January 29, 2026, the Chamber of Deputies intervened in the proceedings, reserving the right to file a subsequent memorandum and requesting this Court to uphold the appeal of the Senate of the Republic.
7.– On March 20, 2026, the intervenor filed an illustrative memorandum in which it summarized and reiterated the themes highlighted in the intervention brief.
8.– On March 24, 2026, the Senate of the Republic also filed a memorandum, insisting on the upholding of the appeal.
9.– Finally, also on March 24, 2026, the Chamber of Deputies filed an illustrative memorandum in which it set out the reasons for its intervention, highlighting the direct impact of the controversy at hand on the perimeter of parliamentary prerogatives provided for by Article 68 of the Constitution.
On the merits, it argued that the acquisition by the Court of Modena of the video recordings subject to the conflict violates the constitutional prerogatives of the Chambers.
9.1.– First, the Chamber of Deputies agrees with the arguments of the Senate of the Republic regarding the breadth of the formula "interceptions in any form."
In particular, it believes that the core of the issue in the present judgment must be identified in the principles enunciated by this Court in Judgment no. 38 of 2019, by virtue of which parliamentary guarantees extend to every "communicative fact" and to every form of authoritative access to the parliamentarian's communicative sphere.
In this regard, the Chamber emphasizes that any opening of insights into a parliamentarian’s relationships made through pervasive investigative means can condition the free performance of parliamentary functions.
9.2.– Furthermore, according to the Chamber of Deputies, the aforementioned Judgment no. 170 of 2023 established a rule of conduct for the investigating authority, by virtue of which, once an electronic medium is seized and it is ascertained that communications referable to a parliamentarian are stored within, the investigative activity must stop to request authorization from the Chamber of origin to extract the relative data. The scope of such a rule would not be limited to instant messaging and e-mail, but would be destined to operate with respect to all content concerning the parliamentarian's communicative sphere and stored on devices in the availability of third parties.
The Chamber highlights how it would be unreasonable to treat the acquisition of the same multimedia content differently depending on whether the same was subject to transmission to the interlocutor or was saved in the phone's memory.
9.3.– Lastly, the argument used by the Court of Modena is contested, according to which the consent given by the parliamentarian to their interlocutor, in allowing access to the domicile and participation in a conversation, would entail an implicit waiver of the confidentiality of communications and an acceptance of the risk of their recording. Regardless of the legality of the recording, such arguments would, in fact, be irrelevant with respect to the need to protect parliamentary prerogatives from the acquisition of communications by the judicial authority.
10.– By a procedural order read at the public hearing of April 14, 2026, this Court declared the intervention of Carlo Amedeo Giovanardi in the proceedings admissible.
Legal Considerations
11.– By appeal filed on April 14, 2025 (reg. confl. pot. no. 4 of 2025), the Senate of the Republic promoted a conflict of attribution between State powers against the Court of Modena, Criminal Section, in relation to the provision issued by it in proceedings no. 2109/2018 R.G.N.R., no. 7555/2018 R.G.G.I.P., and no. 251/2022 R.G., via the collegiate order of September 13, 2024, in the part in which it ordered the acquisition and utilization of the video recordings secretly made (on July 12, July 19, and October 18, 2014) by A. B., concerning the face-to-face conversations that took place between him and Carlo Amedeo Giovanardi, at the time a Senator, as well as between the latter and third parties via telephone connection.
The aforementioned video recordings, concerning a person who at the time held the office of Senator, would fall, according to the appellant, within the scope of application of the guarantee provided for by Article 68, third paragraph, of the Constitution, being traceable to "'interception[s] in any form of conversations or communications' and [the] seizure of correspondence, inclusive of every other form of confidential communication pursuant to Article 15 of the Constitution."
In the Senate's view, the provision of the Court of Modena would therefore have infringed upon the attributions pertaining to the Parliamentarian's Chamber of origin, pursuant to the cited Article 68, third paragraph, of the Constitution, in coordination with Article 15 of the Constitution, and with Articles 4 and 6 of Law no. 140 of 2003.
The appellant therefore asks this Court to declare that it was not within the power of the Court of Modena to order the acquisition and utilization of the aforementioned video recordings without the authorization under Article 68, third paragraph, of the Constitution from the Chamber of origin of then-Senator Giovanardi, and, as a result, to annul the order of September 13, 2024.
12.– Preliminarily, the admissibility of the conflict must be confirmed for the reasons already set out in Order no. 168 of 2025.
First and foremost, the active legitimacy of the Senate of the Republic exists, as it is competent to definitively declare the will of the power it embodies, as well as the passive legitimacy of the Court of Modena, as a judicial body placed in a position of constitutionally guaranteed independence, competent to declare definitively, for the proceedings with which it is invested, the will of the judicial power.
Furthermore, the objective profile of the conflict is met, as the Senate laments the infringement of its sphere of attributions constitutionally guaranteed by Article 68, third paragraph, of the Constitution.
13.– Turning to the merits of the conflict, it should be noted that this Court is called upon, for the first time, to evaluate whether recordings (or video recordings), secretly made in the presence of others, of confidential conversations or communications of a parliamentarian fall within the guarantee of Article 68, third paragraph, of the Constitution.
14.– The constitutional provision in question requires the authorization of the Chamber of origin "to subject members of Parliament to interception, in any form, of conversations or communications and to the seizure of correspondence."
Such discipline, following the amendments introduced by Constitutional Law no. 3 of October 29, 1993 (Amendment of Article 68 of the Constitution), replaced the original authorization to proceed against parliamentarians with a system based on specific *ad acta* authorizations (Judgment no. 38 of 2019).
In particular, the institution aims to prevent highly invasive investigative acts, such as interceptions and seizures of correspondence, from "being 'improperly aimed at affecting the performance of the electoral mandate, becoming a source of conditioning and pressure on the free expression of activity' (Judgment no. 390 of 2007; similarly, Judgments no. 38 of 2019 and no. 74 of 2013, Order no. 129 of 2020)" (Judgment no. 170 of 2023 and, in the same sense, Judgment no. 47 of 2026).
The prerogative, therefore, is not intended to "protect an individual right" (Judgment no. 157 of 2023), such as "the confidentiality of the parliamentarian’s communications as such (which remains protected by Art. 15 of the Constitution, just as it is for every other individual)" (Judgment no. 47 of 2026).
On the contrary, the *ratio* of Article 68, third paragraph, of the Constitution is to preserve the autonomy and independence of the Chambers from undue interference and intrusion by other State powers (Judgments no. 170 and no. 157 of 2023, no. 38 of 2019, and no. 9 of 1970; Order no. 129 of 2020). The rule only indirectly reverberates "its effects in favor of the persons invested with the function (Judgment no. 9 of 1970)" (Judgment no. 38 of 2019; Order no. 129 of 2020) (Judgment no. 157 of 2023).
Therefore, if the functional imprint of parliamentary immunity traces the boundary line of the constitutionally protected prerogative, its respect is an indispensable condition to legitimize what is a derogation from equal treatment before the jurisdiction, a principle placed "at the origin of the formation of the rule of law (Judgments no. 262 of 2009 and no. 24 of 2004)" (Judgment no. 38 of 2019).
It follows that the functional limits of the institution must be ensured both in the interpretation and in the application of Article 68, third paragraph, of the Constitution.
15.– Regarding the hermeneutic reconstruction of the perimeter within which the parliamentary guarantee extends, an interpretation of the semantic reach of the constitutional data is required that is strictly adherent to the *ratio* of Article 68, third paragraph, of the Constitution, taking into account instances of updating the provision and the requirements of systematic consistency.
The necessity to avoid "inappropriate extensive readings" (Judgment no. 38 of 2019) must be weighed in the context in which the constitutional source operates and according to its logic, while it should not be understood as an automatic translation onto Article 68, third paragraph, of the Constitution of every interpretative contribution elaborated, with reference to the notions of interception and seizure of correspondence, within the criminal-procedural ambit.
In principle, in fact, it is "the legislative norms that must be observed in light of the Constitution, and not the latter at the behest of what is established by the legislative discipline (in this case, the procedural one)" (again Judgment no. 38 of 2019).
In any case, the different *ratio* of Article 68, third paragraph, of the Constitution with respect to that of the procedural discipline can well condition, in certain respects, the latitude of the institutions evoked in the context of the constitutional rule.
15.1.– In the wake of the recalled interpretative approach, this Court stated, first, that the text of Article 68, third paragraph, of the Constitution, in the part in which it refers to "interceptions, in any form, of conversations or communications," does not exclude "every reference to a document, like the [telephone] log, that reveals not the content of those [conversations], but data and elements, certainly 'external,' which nevertheless [...] are of undoubted communicative significance" (Judgment no. 38 of 2019).
15.2.– In line of continuity with the aforementioned precedent, this Court then reconstructed the scope of the reference of Article 68, third paragraph, of the Constitution to the seizure of correspondence, offering a "contemporary version of such notion. To argue the contrary, in a historical moment in which paper correspondence, transmitted via postal and telegraphic service, is by now relegated, on the whole, to a secondary role, would mean [...] radically depressing the value of the parliamentary prerogative in question" (Judgment no. 170 of 2023).
Therefore, this Court, first, highlighted that the notion of correspondence, in the context of Article 68, third paragraph, of the Constitution, is sufficiently broad to embrace every form "of exchange of thought at a distance (ideas, purposes, feelings, data, news) between two or more determined persons, implemented in a way other than face-to-face conversation." It has therefore included within it also e-mail messages, SMS, and communications transmitted through other instant messaging applications.
Secondly, it emphasized how such communications, no differently from "paper correspondence, transmitted via postal and telegraphic service," use techniques aimed at ensuring confidentiality.
Finally, this Court included within the constitutional prerogative also messages already received by the addressee, at least until, due to the passage of time, they have lost every character of topicality in relation to the interest in their confidentiality, transforming themselves into mere "historical" documents.
To support this third argumentative component, it noted that, if "the acquisition of external data of communications that have already occurred (such as those stored in a log) enjoys the protections granted by Articles 15 and 68, third paragraph, of the Constitution, it is unthinkable that the seizure of electronic messages would not enjoy it, even if already delivered to the recipient: an operation that allows one to become aware not only of the extrinsic identifying data of the communications, but also of their content, and therefore of a potentially greater intrusive attitude" (still Judgment no. 170 of 2023).
Restricting the scope of Article 68, third paragraph, of the Constitution "to only communications in the course of unfolding and not already concluded," this Court further specified, "would mean giving it such a restrictive interpretation as to nullify its reach: conditioning and pressure on the free expression of the parliamentary mandate can well derive [...] also from becoming aware of the contents of messages already received by the recipient" (again Judgment no. 170 of 2023).
16.– In light of the recalled precedents, it is now time to examine the case at hand in the present conflict, which pertains to the recording (or video recording) surreptitiously made by a private individual who participates in (or attends) a confidential colloquy of the parliamentarian, whose conversations and communications are archived in the memory of the electronic device used as a tool of capture.
First, it must be highlighted that the case at hand presents the same characteristics to which this Court attributed relevance in tracing back to the perimeter of the parliamentary prerogative, under Article 68, third paragraph, of the Constitution, both telephone logs and the parliamentarian's instant messaging stored in the memory of an electronic device.
16.1.– In particular, Judgment no. 38 of 2019 ascribed to the paradigm of interceptions, under Article 68, third paragraph, of the Constitution, telephone logs, as documents capable of opening "insights into [...] relationships [of the parliamentarian], especially institutional ones, of much greater breadth than the needs of a specific investigation."
Well then, the recordings (or video recordings) of the parliamentarian's conversations surreptitiously obtained by those participating in a confidential colloquy are documents capable of providing much more than external cognitive fragments.
They report in full the content of the parliamentarian's confidential conversations and communications and give full access to his relationships, even institutional ones, becoming a source of potential conditioning and pressure on the free expression of his activity (Judgment no. 47 of 2026 and the rulings cited therein).
16.2.– At the same time, this Court included among the hypotheses of seizure of correspondence, under Article 68, third paragraph, of the Constitution, the acquisition of e-mail messages, SMS, and WhatsApp messages (including audio files containing recorded communications, often occurring contemporaneously), which are stored in the memory of the recipient's or sender's electronic devices (Judgment no. 170 of 2023).
Such communications remain covered by the constitutional guarantee, as long as the passage of time does not turn them into historical documents.
In the comparison between the recalled case and that object of today's judgment, the only distinctive element is that in the latter, the original distance between the communicating subjects is absent.
However, the factual element of distance could distinguish the two hypotheses legally only if, for the purposes of reconstructing the application radius of the seizure of correspondence under Article 68, third paragraph, of the Constitution, relevance were given to the mere transmission phase of the communication and, therefore, to the considered "greater risk [in that phase] of capture or apprehension by third parties" (Judgment no. 170 of 2023).
But such interpretation was rejected precisely by Judgment no. 170 of 2023, according to which one cannot "[d]egrade the communication to a mere document when no longer *in itinere*."
Consequently, since the constitutional guarantee has been interpreted as capable of encompassing also distance communication already received by the addressee and known by them (Judgment no. 170 of 2023), the type of risk to which this Court intended to give legal relevance, for the purposes of the recalled constitutional provision, is another.
It is the risk that a communication confidentially addressed by the parliamentarian to a specific addressee could be used, without the authorization under Article 68, third paragraph, of the Constitution, in a criminal proceeding, determining "conditioning and pressure on the free performance of the parliamentary mandate [as a result of] becoming aware of the contents of messages already received by the addressee" (thus the judgment just cited).
Evaluated from the functional perspective of the guarantee, the same risk exists also with respect to the parliamentarian's communication surreptitiously recorded in the presence of others, provided it is a conversation held in a confidential context, aimed – as in the case of correspondence – at limiting the addressees of the communication.
16.2.1.– This makes the two cases legally assimilable for the purposes of Article 68, third paragraph, of the Constitution.
They are equivalent under the profile of confidentiality which, in distance communication, is ensured by the messaging tools themselves, while in that occurring in the presence of others, it depends on the context in which it takes place.
Moreover, both in the communication performed in the presence of others in a confidential context and in that at a distance received by the addressee, the addressee has knowledge of its content.
Finally, in both cases, the risk arises that a parliamentarian's communication, addressed to a restricted circle of recipients, is used, without authorization, in a criminal proceeding, with potential compromise of the freedom and independence of parliamentary activity.
16.2.2.– It is true that in this way the distinction between distance communication, which remains archived in the memory of electronic devices, and that which took place in the presence of others in a confidential context, which is surreptitiously recorded and then likewise stored in the memory of the capturing device, weakens until it becomes irrelevant for the purposes of Article 68, third paragraph, of the Constitution. But this depends on the incidence of technological evolution.
On one hand, correspondence now takes place in the normal course of cases through an instantaneous communicative flow, which makes it obsolete to limit the relevance of the risk to that inherent in the mere transmission phase. On the other hand, in the present context, the capture of a conversation occurs through commonly used devices, which make surreptitious recording extremely discreet and imperceptible from the outside, thus realizing that same effect of loss of control over confidential communication that characterizes the message transmitted at a distance.
17.– In light of the comparison with the precedents of this Court, the reasons emerge that lead not to translate, in the context of Article 68, third paragraph, of the Constitution, the qualification as mere documentary proof of the phonographic recording of colloquies among those present, surreptitiously executed by subjects legitimized to attend them, which living law has elaborated in the different context of criminal-procedural discipline.
17.1.– In that sphere, the jurisprudence of legitimacy states – with a constant orientation starting from the Judgment of the Joint Sections of 2003 (Cass., no. 36747 of 2003) – that the recalled case constitutes documentary proof pursuant to Article 234 of the Code of Criminal Procedure, as it reproduces not a statement of science, but an occurrence of reality whose content is constituted by statements of precisely identified persons (thus, most recently, Court of Cassation, Fifth Criminal Section, Judgment no. 12242 of January 27-March 31, 2026; Sixth Criminal Section, Judgment no. 36539 of May 22-November 10, 2025; Fifth Criminal Section, Judgment no. 27569 of April 8-July 28, 2025).
In particular, it is noted that "[t]he communication, once it has freely and legitimately exhausted itself, without any intrusion by subjects extraneous to it, becomes part of the patrimony of knowledge of the interlocutors and of those who have not non-secretly attended it, with the effect that each of them can dispose of it" (Cass., no. 36747 of 2003).
17.2.– However, coming to consider the visual angle of Article 68, third paragraph, of the Constitution, the facts acquire a different legal relevance.
As the needs for protecting confidentiality associated with parliamentary function do not die out once the distance communication has entered the addressee’s patrimony of knowledge, the same applies also in the case in which the parliamentarian admits someone to participate in a confidential colloquy.
From such circumstance, in fact, no abdication by the parliamentarian to confidentiality instances functional to the free performance of parliamentary activity can be inferred, with consequent usability thereof, without the authorization of the Chamber of origin, in the ambit of a criminal proceeding.
The object of the protection under Article 68, third paragraph, of the Constitution – as already recalled (point 14) – is, in fact, not the parliamentarian's personal confidentiality, but the freedom and independence of the body to which he belongs.
This Court, even before the aforementioned rulings (Judgments no. 170 of 2023 and no. 38 of 2019), generally noted, dealing with an affair that concerned the interception of conversations of the President of the Republic, that "all constitutional bodies need to have a particularly intense guarantee of confidentiality, in relation to their respective communications concerning informal activities, on the assumption that such guarantee – a general principle valid for all citizens, pursuant to Article 15 of the Constitution – assumes specific contours and purposes if further constitutionally worthy interests come into play, such as the effective and free performance, for example, of parliamentary and governmental activity" (Judgment no. 1 of 2013, point 9 of the Legal Considerations).
Moreover, the same judgment of the Court of Cassation recalled above (Cass., no. 36747 of 2003), in arguing that in communication in the presence of others there is an implicit waiver of confidentiality, in any case makes a proviso for the need to consider "the particular quality held" by those participating in it (emphasis added).
To this, it must be added that the need to preserve, for the purposes of Article 68, third paragraph, of the Constitution, the confidentiality of the parliamentarian’s conversations and communications is not refuted by the circumstance that the person who was present could testify regarding the content of the conversation.
Setting aside the observation that even the person who learns the content of a parliamentarian’s communication transmitted at a distance could testify about it, in any case, the possibility of testimony cannot be considered equivalent to the acquisition of a surreptitiously recorded conversation.
Testimony, by its nature, entails the selection and reconstruction of the communicative content according to the rules of the means of proof.
Conversely, surreptitious recording (like and perhaps more than distance messaging) makes entire communicative flows knowable, not circumscribable to the needs of the investigation and potentially capable of determining "conditioning and pressure on the free expression of the mandate" (Judgment no. 170 of 2023).
Ultimately, the recording of a parliamentarian's colloquies effected without his knowledge with a highly invasive means – as it is reproductive and surreptitious – realizes a heavy interference and allows the acquisition of confidential communications capable of having significant reverberations on parliamentary activity.
18.– Once clarified that, for the purposes of Article 68, third paragraph, of the Constitution, the case at hand in today's conflict shares the same characteristics at the base of the subsumption, in the recalled norm, of both telephone logs and messages recorded in the memory of an electronic device, it is necessary to verify, at this point, the applicability to it of the discipline of interceptions or that concerning the seizure of correspondence.
To such provisions, in fact, correspond – based on the implementing discipline of the constitutional reform – two different regimes in terms of authorization: for interceptions, sometimes the preventive one applies (Art. 4 of Law no. 140 of 2003), other times the subsequent one (Art. 6 of Law no. 140 of 2003), while for the seizure of correspondence, the former is required in any case, pursuant to the cited Art. 4 of Law no. 140 of 2003.
More precisely, in the case of interceptions, preventive authorization is necessary where the investigative act is "direct," in the sense that the listening to conversations occurs by subjecting to control utilities of which the parliamentarian himself is the owner or places used by him (Judgments no. 47 of 2026 and no. 38 of 2019), or is "indirect," in the sense that the "direction of the investigative act" targets the parliamentarian (Judgment no. 390 of 2007). Similar evaluation, according to this Court, must be carried out on the basis of a series of indices (Judgments no. 114 and no. 113 of 2010), to be weighed "in a comprehensive and non-atomistic way," as well as in a dynamic perspective (Judgment no. 157 of 2023).
Always in the hypothesis of interceptions, the subsequent authorization under Article 6 of Law no. 140 of 2003 operates, instead, when the judge occasionally finds, in minutes or recordings of interceptions effected, in any form, in the course of proceedings concerning third parties or in logs acquired in the course of the same, the participation in conversations or communications of members of Parliament and deems it necessary to use those means of proof in the process (Judgments no. 38 of 2019, no. 114 and no. 113 of 2010, no. 390 of 2007; as well as Order no. 263 of 2010).
As for the seizure of correspondence, only the authorization under Article 4 of Law no. 140 of 2003 finds application, necessary also to acquire e-mail messages, SMS, and WhatsApp messages (Judgment no. 170 of 2023).
In such a case, the authorization remains preventive also when the judicial authority, following the seizure of an electronic device, finds, in its memory, the recalled communications. In fact, as this Court specified, "the 'true' object of the seizure is not so much the electronic device (the 'container') – which, of itself, has normally no interest for the investigations – as its data (the 'content'), in the part in which they turn out to be useful to the investigations themselves: data that, according to the indications of the jurisprudence of legitimacy, must for this purpose be selected and made possibly the object of a 'clone-copy', with restitution of the device (and of the availability of all the other data) to the owner" (the already cited Judgment no. 170 of 2023).
19.– Having said that, the decisive element, in order to verify the applicability to the case at hand of the discipline provided for interceptions or that established for the seizure of correspondence, is the moment in which the investigative activity of the judicial authority is inserted.
Indeed, Article 68, third paragraph, of the Constitution requires the authorization of the Chamber of origin, having regard precisely to possible undue interferences of the judicial power in the exercise of the parliamentary function.
20.– Specifically, if it is the same proceeding authority that assumed the initiative of the surreptitious recording, instructing an undercover agent or involving a private subject, the case must be ascribed to the paradigm of interceptions effected "in any form."
For the purposes of the constitutional guarantee, in fact, the profiles that, in the context of criminal-procedural discipline, lead living law to differentiate surreptitious recording among those present from the notion of interception, behave differently.
20.1.– In particular, according to the criminal-procedural perspective, two typical elements of interceptions are missing in the recording of colloquies effected by those admitted to attend them: i) the compromise of the right to the secrecy of the communication, whose content is legitimately learned by those who ostensibly participate in it or attend it; ii) the "third-party" nature of the capturer (*ex plurimis*, Cass., no. 36747 of 2003 and, most recently, Cass., no. 12242 of 2026; Cass., no. 36539 of 2025; Cass., no. 27569 of 2025). Moreover, it must be specified that, in the case of recording effected thanks to material provided by the judicial police and on their indication, there is a conflict in the jurisprudence of legitimacy: a majority orientation ascribes also such case to documentary proof; a minority one, conversely, qualifies it as atypical proof, different both from interceptions and from documents, and deems it unusable, in the absence of a motivated provision of authorization from the judge or the public prosecutor (on such jurisprudential conflict, most recently, Court of Cassation, Fifth Criminal Section, Judgment no. 1824 of November 24, 2021-January 17, 2022).
20.2.– Well then, moving to consider the visual angle of Article 68, third paragraph, of the Constitution, it must be noted, first, that a conversation held in a confidential context by the parliamentarian does not cause the confidentiality requirements correlated to the parliamentary function to cease – for the reasons already exposed above (points 16 and 17) – (Judgment no. 38 of 2019).
Moreover, the existence of the third-party nature cannot be denied, because if it is the judicial authority that assumed the initiative to have a confidential conversation recorded, it is the same – and therefore a third party – the recipient *ab initio* of the communicative flow captured by the recording.
Moreover, it would be paradoxical to differentiate, in the context of Article 68, third paragraph, of the Constitution and for its purposes, the treatment of interceptions entirely effected by the judicial authority from that of captures in which the latter makes use of the collaboration of private individuals.
21.– Differently, when the initiative of surreptitious recording was assumed by the private individual and only later, hypothetically at the moment of the seizure of the capturing device, the judicial authority finds recorded in its memory the parliamentarian’s conversations and communications, it is then (with respect to a document that by now is relevant in its static nature) that the risk of instrumental use of the judicial power at the expense of parliamentary function is profiled.
In such a case, the case must be referred to the seizure of correspondence stored in the memory of an electronic device.
In it, in fact, – for the reasons previously illustrated (supra, points 16.2., 16.2.1., and 16.2.2.) – the same prerequisites and the same reasons are found that led this Court to include the messaging stored in an electronic device in the seizure of correspondence, under Article 68, third paragraph, of the Constitution (Judgment no. 170 of 2023), distinguishing it from the homologous criminal-procedural notion welcomed at the time by the jurisprudence (Court of Cassation, Second Criminal Section, Judgment no. 39529 of July 1-October 19, 2022; Sixth Criminal Section, Judgment no. 22417 of March 16-June 8, 2022; Fifth Criminal Section, Judgment no. 17552 of March 10-May 6, 2021).
The acquisition of confidential communications of the parliamentarian, recorded in the memory of an electronic device, both where they originally took place at a distance and where they took place in the presence of others, must be covered by the guarantee under Article 68, third paragraph, of the Constitution, as long as with the passage of time they do not turn into historical documents (Judgment no. 170 of 2023).
Not only the canon of teleological interpretation, associated with the need to take into account the changed technological context (supra, points 16.2.1. and 16.2.2.), leads to such result, but also the systematic criterion.
In particular, from the connection, in Article 68, third paragraph, of the Constitution, between the seizure of correspondence and, in its first part, the "interceptions, in any form, of conversations or communications" (emphasis added), it is inferred that the constitutional legislator did not intend to differentiate the protection of the parliamentarian's correspondence from the protection of other forms of confidential communications captured in any form, which prospect identical problems. And this is all the more valid if one considers that Article 15 of the Constitution equates the protection of the "secrecy of correspondence" to that of "every other form of communication" (emphasis added).
Reasoning differently, one would have to replace the canon of systematic interpretation, oriented by the *ratio* of the discipline subject to the hermeneutic proceeding, with that of a segmented interpretation of Article 68, third paragraph, of the Constitution.
Similar approach would be equivalent to believing that the constitutional legislator should have provided individually and in their specificity all the relevant cases, although those expressly contemplated are subject to a natural process of evolution in which, even with the changing of phenomenological data, the goods and interests of constitutional relevance to which the necessary protection must be assured remain intact.
22.– Ultimately, the hermeneutic reconstruction of Article 68, third paragraph, of the Constitution leads one to believe that the risk of undue intrusion by the judicial power can insinuate itself both in the case (and in the moment) in which the investigative authority assumes the initiative to have a confidential communication surreptitiously recorded, whether or not it targets the parliamentarian, and in the case (and in the moment) in which the same authority determines itself to the acquisition in the proceeding of a recording surreptitiously effected on the initiative of the private individual.
In this second hypothesis, the person may have acted for the most diverse reasons, which can range from the persecutory or extortionate intent towards the politician to the need of the victim of the crime committed by the parliamentarian himself to pre-constitute a means of proof.
Before a similar range of hypotheses, upon which is grafted the initiative of the judicial authority that intends to acquire the recording, emerges the requirement that the concrete exercise of the authorizing power, in application of Article 68, third paragraph, of the Constitution, be itself compliant with the *ratio* of the parliamentary prerogative. This, in fact, ensures the point of balance between the protection of the freedom and independence of the parliamentary function and the principle of equality of citizens before the judicial authority.
If, therefore, the sense of the discipline resides in the protection of the parliamentary function from undue interference and intrusion of the judicial power, such premise does not allow one to consider parliamentary authorization (or the denial thereof) an expression of an arbitrary power, exercised through unchallengeable decisions.
It follows that the provision that decides regarding the authorization cannot disregard providing elements suitable for allowing a review of its concrete exercise.
Where, therefore, the judicial authority deems to identify an abuse in the denial of authorization by the parliamentarian’s Chamber of origin, it could well raise a conflict of attribution between State powers before this Court (Judgments no. 74 of 2013 and no. 462 of 1993).
23.– In light of what has been set out, today’s conflict of attribution must be upheld.
In particular, all the prerequisites occur in the concrete case that lead to applying the discipline provided for the seizure of correspondence by Articles 68, third paragraph, of the Constitution and 4 of Law no. 140 of 2003.
23.1.– In the first place, the recalled video recordings took place in a confidential context.
At point 3.E.3.d.1. of the order of September 13, 2024, the Court of Modena recognizes that the video recordings effected "in a clandestine way" by A. B. were such as to place "in evidence [...] a theme of confidentiality."
In even more precise terms, the introductory appeal of the conflict (at point a. of the Merits) underlines the traits of confidentiality that characterized the conversations and communications surreptitiously video-recorded by him. It is highlighted, in fact, that it was a "confidential colloquy," which took place in the domicile of the then-Senator Carlo Amedeo Giovanardi.
A fortiori, the parliamentarian's telephone communications occurring with third subjects and surreptitiously recorded by A. B. must be considered confidential.
23.2.– In the second place, it emerges that only following the seizure of A. B.’s cellular phone, a suspect in the same proceeding from which the judgment against Carlo Amedeo Giovanardi originated, the judicial authority became aware of the video-recording activity performed by the private subject.
At that moment the problem arose, therefore, of evaluating the need for the authorization under Article 68, third paragraph, of the Constitution, in order to acquire and use the video-recording files stored in the memory of the seized electronic device in the process.
This is what is inferred from point 1.C.3. of the Court of Modena's order and from points b) and c) of the Premise in fact, as well as b7) of the Merits of the introductory appeal of the present judgment, where reference is made to the finding of the video recordings of the conversations and communications of Carlo Amedeo Giovanardi following the seizure of A. B.’s cell phone, effected within the ambit of a proceeding that saw the latter as a defendant.
24.– In the case object of the present judgment, the intervention of the judicial authority is placed, in substance, only downstream of the occurred video recording of the parliamentarian’s communications.
Therefore, the procedural module operating for messaging stored in the memory of an electronic device, under Article 4 of Law no. 140 of 2003, should have found application, which requires the preventive authorization of the parliamentarian’s Chamber of origin not to seize the capturing device, but to extrapolate and acquire its content into the records.
Such module "guarantees [...] a point of balance between the interests at stake, avoiding inopportune dilations of the effects proper to the parliamentary prerogative, which would risk penalizing in an unjustified way the very initiatives of the judicial authority aimed at the ascertainment of crimes" (Judgment no. 170 of 2023).
It follows that, where even the investigating bodies could have foreseen that video recordings of Carlo Amedeo Giovanardi’s colloquies were stored in A. B.’s cell phone, this would not have prevented them from seizing the device, from seizing all other IT data not pertaining to communications with the parliamentarian, and from verifying, through a summary examination, the effective existence of video recordings or recordings regarding the latter.
Conversely, the judicial authority should have obtained the authorization of Carlo Amedeo Giovanardi’s Chamber of origin to order the extrapolation from the device and the acquisition into the records of the proceedings of the video recordings of the parliamentarian’s conversations.
25.– In light of what has been exposed above, it was not within the power of the Court of Modena to order, with the collegiate order of September 13, 2024, in the absence of the Senate’s authorization, the acquisition and utilization of the video recordings secretly made, on July 12, July 19, and October 18, 2014, by A. B., having as object the conversations, occurred in the presence of others, with Carlo Amedeo Giovanardi, at the time a Senator, as well as those occurred between the latter and third subjects, in telephone connection.
Consequently, the cited order must be annulled, in the part in which it ordered the acquisition and utilization of the recalled video recordings surreptitiously made by A. B.
FOR THESE REASONS
THE CONSTITUTIONAL COURT
1) declares that it was not within the power of the Ordinary Court of Modena, Criminal Section, to order, with the collegiate order of September 13, 2024, the acquisition and utilization of the video recordings secretly made by A. B., on the dates of July 12, July 19, and October 18, 2014, concerning the face-to-face conversations that took place between him and Senator Carlo Amedeo Giovanardi, as well as between the latter and third parties, via telephone connection, in the absence of the authorization of the Senate of the Republic under Article 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 and regarding criminal proceedings against high officers of the State);
2) annuls, as a result, the collegiate order adopted by the Ordinary Court of Modena on September 13, 2024, in the part in which it ordered the acquisition and utilization of the video recordings secretly made by A. B., on the dates of July 12, July 19, and October 18, 2014, concerning the face-to-face conversations that took place between him and Senator Carlo Amedeo Giovanardi, as well as between the latter and third parties, via telephone connection.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on April 14, 2026.
Signed:
Giovanni AMOROSO, President
Emanuela NAVARRETTA, Drafter
Roberto MILANA, Director of the Registry
Filed in the Registry on June 23, 2026
Attachment: