Environmental interceptions, Consulta sets limits if parliamentarians are involved

Where is indirect wiretapping of a parliamentary member legitimate? This unprecedented question was answered by the Constitutional Court in sentence 47, written by Francesco Viganò. The Court found itself, the ruling emphasises, declining the protection offered to parliamentarians in the context of interceptions between bystanders ordered in a protected place by way of domicile. The Senate argued that the Public Prosecutor's Office had violated Article 68 of the Constitution in two respects. On the one hand, it had carried out interceptions against a female senator without requesting prior authorisation. On the other hand, when it installed bugs, the judicial police had carried out a search of the premises used by the parliamentarian without authorisation.

The problem is that of the identification of reasonable limits to the extension of the protection of the parliamentarian with respect to interceptions between persons present within a real estate unit of which he is the owner and in actual use. To be avoided is the risk that the simultaneous presence of other people's enjoyment titles or its use in common with other people may also place the non-parliamentarian under the protection of investigations.

The coverage offered by the Constitution then, the Court emphasises, concerns all 'places in which the Member of Parliament must in practice be able freely to carry out, in a confidential manner, activities related to the exercise of his or her parliamentary mandate, even irrespective of his or her formal ownership of real or personal enjoyment rights over those places'

However, the situation of a Member of Parliament who uses only part of a real estate unit that also houses other persons for the performance of activities that have nothing to do with the exercise of the political function is different, as in the case of an associated professional office or as in the case examined of a large real estate unit, different from the dwelling and with spaces used separately by the Member of Parliament and third persons.

"The possible ownership of rights of enjoyment over the entire unit by the Member of Parliament does not exclude, in such hypotheses," the Court warns, "that in practice the Member of Parliament may use only part of the premises for activities connected with the exercise of his functions, and that other persons may use exclusively other premises of the same building - also on the basis of autonomous rights of enjoyment or simply in a de facto manner. Therefore, no constitutional obstacle with respect to premises used exclusively by other persons, to avoid improper extensions of protection contrary to the principle of equality.