06 Jan parliamentary immunity

The events of the criminal immunity of Parliamentarians in the Republican period are marked by a watershed: the l. cost. 29 October 1993, n. 3, which decisively modified the original structure of the art. 68 Cost.

This article had been approved by the constituents without a significant debate on the opportunity to provide immunities in the new constitutional charter.

Already under the Albertine Statute, the institute was in fact rooted in our legal tradition which had taken as its reference model that of the French constitutions between the end of the eighteenth century (starting from that of 1791) and the beginning of the nineteenth century.

Following this model, art. 68 Cost. in the original text it regulated immunities according to the well-known division between unquestionability and inviolability.

The first protects parliamentarians with regard to "the opinions expressed and the votes cast in the exercise of their functions"; it has a substantial nature since it fundamentally eliminates the anti-legal nature of the fact, prevents the crime from occurring.

Inviolability, on the other hand, has a procedural nature, resulting in an impediment to specific activities of the judicial authority, which can only be removed with authorization from the chamber to which the parliamentarian belongs.

This dichotomous scheme is confirmed by the reform of 1993. It is limited to a formal modification to the first paragraph, but it affects the regime of inviolability in three very important aspects: eliminates parliamentary authorization for subjection to "criminal proceedings"; eliminates the authorization for arrest or detention in execution of an irrevocable sentence; introduces the authorization for the subjecting of parliamentarians to "wiretapping"., in any form, of conversations or communications and seizure of correspondence".

As for the reasons that led to the reform, it should be remembered first of all that the chambers had used the authorization to proceed more and more extensively, denying it even in cases of evident conflict with the spirit of the constitutional norm, so as to cause widespread talk of a real abuse.

In the first place, there were no deadlines for the chambers' decision which could be postponed to protect a parliamentarian from criminal prosecution. Secondly, there was an unjustified expansion of the criteria on the basis of which authorization was denied: an extensive interpretation of the smoke of persecution ; the "political nature" or "political color" of the crime or the mere connection to an activity of a political nature even if it does not fall within the exercise of parliamentary functions (criterion, This, which could have been used jointly and not separately from the fumus persecutionis); the examination of the merits of the criminal proceedings e, then, of the validity of the accusation; an interpretation of the criminal law different from that of the prosecuting magistrate; the lack of seriousness of the accusation.

The authorization to proceed was increasingly perceived by public opinion as a "caste" privilege. What acted as the detonator was the investigation c. d. Clean hands and the dramatic increase in requests for authorization to proceed for crimes that have been defined as "simoniac", that is, connected to money trafficking.

Thus a political class that had governed the country for many years, discredited in the eyes of public opinion, fearful and uncertain in the search for a way out, came to the approval of the constitutional law n. 3 of the 1993. The most relevant element is the overcoming of the principle according to which the chambers were the sole judges of their composition, and this is with regard to temporary situations (a short-term arrest), both regarding definitive situations (an arrest following a long-term prison sentence, the pronunciation of decadence, the annulment of an election).

Today, the authorization to proceed having been abolished and authorization no longer required for the arrest or detention of a parliamentarian in execution of an irrevocable sentence, it is possible that the rooms are deprived of one of their members and see, then, their composition altered, for the ordinary course of a trial.

Furthermore, the powers of the chambers regarding immunity have lost the character of an unquestionable prerogative. For many years after the entry into force of the constitution, parliamentary decisions on the matter were considered to be political acts, absolutely discretionary and not subject to any legal control. He feels it. 1150/88 However, the Constitutional Court stated that a resolution of the chambers regarding unquestionability can be subjected to its control in the context of a conflict of attribution raised by ordinary judges , in order to make the correct use of the prerogative by parliament verifiable.

The reform of 1993 made only a formal change to the first paragraph of article 68, establishing that members of parliament cannot be "called to answer for" (instead of “prosecuted for”) opinions expressed and votes given in the exercise of their functions. It has been said that this was intended to consolidate the principle of absolute character, from a criminal point of view, civil, administrative, disciplinary, of irresponsibility

With the revision of 1993 the question of the material scope of the prerogative, that is, what the behavior of parliamentarians that falls within the concept of opinions expressed and votes given "in the exercise of their functions" has been asked with new emphasis.

The chambers have tended to broaden the application of unquestionability, the judiciary reacted to this orientation and the number of attribution conflicts soared.

What are the reasons for this phenomenon? First of all, it must be kept in mind that if the prerogative is peacefully applied to acts specific to the parliamentary function typified in constitutional provisions or parliamentary regulations, such as speeches made in debates within parliamentary bodies, the presentation of bills and amendments, of queries, interpellations, motions, resolutions, agendas, doubts have arisen regarding the so-called parliamentary acts. atypical, i.e. not foreseen by regulations, but which nevertheless have some connection with parliamentary activity, come, eg (the cases have arisen in the jurisprudence of the court), sending letters between parliamentarians, interventions in non-public locations, inspection acts declared inadmissible by the presidencies of the chambers.

It is necessary to bear in mind then, as recognized by the Constitutional Court (sent. 320/2000) that: “The activity of the members of the chambers in the representative democratic state is by its nature destined ... to be projected outside the parliamentary halls, in the interest of free political dialectics which is the living condition of democratic-representative institutions".

This raised the problem of the extensibility of immunities to activities of a political nature in a broad sense, that is, they constitute a projection of the political dispute external to parliament.

Before the reform of 1993, the Chambers faced with cases in which the applicability of the first paragraph of article 68 could be doubtful, they had the option of denying authorization to proceed and this they did, as has already been said, with width. This created what has been defined as "indirect or improper unquestionability", a protection that was certainly less effective because it resulted in a temporary procedural impediment which disappeared with the loss of the status of parliamentarian, but which still protected him from criminal proceedings.

With the reform of 1993 and the abolition of the authorization of the Chambers, Parliament nevertheless attempted to guarantee maximum protection to its parliamentarian: no longer being in possession of the instrument of authorization to proceed, they tried to expand the scope of application of unquestionability as much as possible.

The Chambers have in fact transferred from the old ground of authorization to proceed to that of unquestionability the criterion of the political nature or coloring of the behavior alleged in court. On the assumption that the functions of a parliamentarian are not restricted to the confines of institutional offices, but they project themselves into the life of the country, they considered that all expressions of opinion which, although external to parliamentary activity, are placed in a context of political debate enjoy the protection of non-indicability, have some connection, “some thematic relationship – even indirect – with current political topics, both local and national, whether specifically dealt with in parliamentary procedures or elsewhere". They were thus classified as "opinions expressed in the exercise of parliamentary functions", interventions in the press, in radio or television broadcasts and also material behavior, such as the occupation of a roadway or the interruption of a public service, as a manifestation of a political opinion.

The jurisprudence of the constitutional court contrasted this extensive orientation, called on several times to give its opinion in cases of conflict of powers between the chambers and the judiciary, but also, with the feeling. 120/2004, in the judgment of constitutional legitimacy of law 140/2003 which, with great delay and after a series of 19 unconverted decree-laws, dictated the implementation rules of art. 68 of the Constitution.. In addition to regulating the procedure for parliamentary deliberation on unquestionability (the c.d.. parliamentary preliminary ruling with respect to the process in which a parliamentarian is a party), the law, all’art. 3, c.1, has in fact listed the activities to which the first paragraph of the article applies, indicating, beyond the typical acts mentioned above, “any other inspection activity, of disclosure, of criticism and political denunciation, connected to the parliamentary function, also carried out outside parliament".

It is therefore the jurisprudence of the Court that we must refer to to identify the current boundaries of the prerogative of unquestionability.

The Court underlined how art. 68 contains principles that govern the guarantee of the powers of the chambers and the judicial authority against mutual interference and, at the same time, they are designed to protect potentially conflicting constitutional assets, which, to coexist, they must be reconciled from time to time to be made compatible with each other: on the one hand the autonomy of parliamentary functions as an area of ​​political freedom of representative assemblies; on the other, legality and the set of constitutional values ​​that are specified in it (equality of citizens before the law, equal judicial protection and the right to act and defend oneself in court,etc.) (sent. 379/96 e 120/2004). In balancing these constitutional principles, the court considered that it was easier to proceed by negatively defining the respective areas of competence of the chambers and the judicial authority. The extreme limit of the prerogative of unquestionability is that this can never be transformed into a personal privilege, which would be an immunity from jurisdiction resulting from the mere capacity of parliamentarian. Therefore, not all behaviors of members of the chambers are covered by immunity, but only those strictly functional to the independent exercise of the responsibilities of the legislative power (sent.120/2004).

The Court has developed its jurisprudence around the concept of "functional link" between the expression of "opinions" and "votes" and the exercise of parliamentary functions. The functional connection must be qualified not as a simple connection of topic or context between parliamentary activity and declaration, but as the identifiability of the declaration itself as an expression of parliamentary activity (sent.10/2000). The court therefore includes not only the typical acts of the parliamentary function within the sphere of unquestionability, but also the “unnamed” or atypical ones, in any case falling within the scope of application of parliamentary law, which the member of parliament is able to implement and use only insofar as he holds that office (sent. 56/2000; sent. 219/2003, relating to a letter sent by a deputy to the president of the anti-mafia commission; sent. 379/2003 relating to a question declared inadmissible by the presidency of the chamber). The Court held, that is, there is no sort of automatic equivalence between the act not provided for by parliamentary regulations and the act extraneous to the parliamentary function, having to be verified in concrete terms, regarding the context in which the act was carried out, the existence of that suitable connection to qualify the act as an exercise of the parliamentary function. Thus reasoning, the place of the behavior has no decisive relevance in establishing the functional connection: there are actions carried out within the chambers that are not unquestionable (see sentence 509/2002 which annulled a resolution of unquestionability of the Chamber of Deputies relating to a private conversation between two parliamentarians which took place at the refreshment stand), while there are actions carried out outside the chambers which are unquestionable (as could be opinions expressed by parliamentarians who participate in external activities of parliamentary commissions, in particular commissions of inquiry, or who are part of chamber delegations).

Regarding the opinions expressed by members of the Chambers extra moenia, the court with sentences no. 10 e 11 of the 2000 has adopted the so-called criterion. of disclosure or reproduction, that, as has been said, it had already been identified in the past in parliamentary practice. These sentences are particularly important because with them the court specifies and consolidates a direction to which it has remained anchored in all subsequent jurisprudence19. In order for external expressions of opinion to be considered as falling within the protection of the first paragraph of the art. 68, or why the "functional connection" can be said to exist, it is not enough that they fit into a generically political context, nor that there is a simple commonality of topic with opinions expressed in parliament. It is necessary that the statements can be identified as informative outside of parliamentary activities, that is, that they reproduce opinions expressed in parliamentary acts or activities externally or that there exists anything other than a formal identity, a substantial correspondence. Parliamentary activity must necessarily precede the expression of external opinion, the functional connection must exist between the external dissemination activity and the opinions "already expressed"., or contextually expressed” in the exercise of parliamentary functions, opinions expressed in the exercise of duties proving irrelevant, but later (sent. 289/98 e 347/2004). The court also required a subjective identity in the sense that to be unquestionable the parliamentarian must disclose to the outside world opinions expressed in the chambers by him personally and not by colleagues. The jurisprudence of the court has the merit of anchoring the attribution to the immunity of the first paragraph of the art. to a certain parameter. 68 of the opinions expressed by members of the chambers outside the parliamentary offices.

After the reform of 1993, inviolability is embodied in four ad acta authorizations which guarantee the parliamentarian in criminal proceedings limited to the period in which he is in office.

They are: 1) the authorization of arrest and deprivation of personal liberty as precautionary measures, save the execution of an irrevocable sentence or flagrant crime in cases of compulsory flagrant arrest; 2) authorization for personal and home searches; 3) the authorization to carry out wiretaps in any form of conversations and communications; 4) the authorization to seize correspondence.

The overall rationale of inviolability was highlighted clearly and concisely in a recent ruling of the Constitutional Court, the n. 390/2007, issued during the examination of the constitutional legitimacy of provisions of the law. 140/2003. A sentence that, moreover, reflects orientations already expressed in doctrine.

According to the court, art. 68 cost. “aims to protect the parliamentarian from illegitimate judicial interference in the exercise of his representative mandate; to protect him, that is, from the risk that particularly invasive investigative tools or coercive acts of his fundamental freedoms could be used for persecutory purposes, of conditioning, or in any case extraneous to the actual needs of the jurisdiction". “Recipients of protection, in any case, they are not the uti singuli parliamentarians, but the assemblies as a whole. The intention is to preserve their functionality, the integrity of the composition (in the case of de libertate measures) and full decision-making autonomy, with respect to undue intrusions of the judicial power...: which explains the inalienability of the guarantee".

What stands out is not the parliamentarian's prejudice, since "The protected asset is identified... with the need to ensure the correct exercise of jurisdictional power towards members of parliament, and not with the substantial interests of the latter (confidentiality, honor, personal freedom), in the event of being prejudiced by the completion of the act; these interests are safeguarded by safeguards, also constitutional, established for the generality of the associates."

The Constitution does not contain any explicit indication of parameters that the chambers should follow when evaluating requests for authorization, but from the ratio of the institute it is clear that any evaluation on the functional or non-functional nature of the activity in question is essentially irrelevant, instead, the fumus persecutionis and the need to strike a balance between the interest in the free course of criminal jurisdiction and that of the assemblies in maintaining the integrity of the plenum are highlighted, in the case of arrest, or to guarantee the exercise of the parliamentary mandate from any intrusion, in the other case. This appears confirmed, on the contrary, from the cases in which the constitutional provision excludes the need for authorization to arrest, that is, flagrancy and irrevocable condemnation, which exclude a persecutory intent on the part of the judicial authority.

One of the innovations of the reform of 1993 is constituted by the third paragraph of the art. 68 which provides authorization to subject members of parliament to wiretaps, in any form, of conversations or communications and seizure of correspondence. L’art. 4, c. 1, of the l. 140 extends the need for authorization also to the acquisition of communications printouts. Even in these cases the aim of protection is always that of freedom in the exercise of the parliamentary mandate from conditioning and pressure, despite the matter, the protection of the parliamentarian's confidentiality as such is not highlighted.

From this it follows that "indirect interceptions" also require authorization, that is, those in which a parliamentarian appears despite the users of other subjects having been subjected to control, but identifying those of people with whom the parliamentarian has regular relationships. In other words, the authorization must be requested "every time the parliamentarian is identified in advance as the recipient of the collection activity, even if this takes place by monitoring users of different subjects". However, “random or accidental interceptions remain exempt from authorisations, with respect to which - precisely due to the unexpected nature of the parliamentarian's interlocution - the judicial authority could not, not even wanting to, obtain the permit of the chamber to which you belong.