Case Summary and Outcome

The Italian Constitutional Court dismissed an application to declare a legal provision permitting extensive wiretapping use unconstitutional. A lower court judge had referred the constitutional question to the Constitutional Court after he had to determine whether to dismiss a criminal case on the grounds that the suspicion of the commission of a crime had been found through wiretaps related to a different matter. Italian law prohibits the use of wiretap evidence in cases for which the wiretapping has not been specifically ordered. The Constitutional Court stressed that wiretapping must be strictly controlled and that authorizations of surveillance must stipulate the individuals to be subject to the wiretap and the specific facts to be investigated. It characterized the consequences of allowing for incidental evidence found through a wiretap to be used in a criminal trial would constitute a “broad authorization” for wiretapping and would be unconstitutional.

Facts

A public prosecutor in Siena, Italy, requested that a case be dismissed on the grounds that it had been initiated through irregular procedure. The case emerged after wiretap results which had been authorized for a separate investigation identified possible criminal activity, and a notitia criminis (a notice conveyed to a prosecutor that a crime has been committed) had been filed. Article 270 of the Italian Code of Criminal Procedure (Article 270 c.p.p.) states that “Wiretap results may not be used in proceedings other than those in which they were ordered, unless they are indispensable for the investigation of crimes for which arrest in flagrante delicto [in the act of wrongdoing] is mandatory”.

On January 7, 1991, the judge for preliminary investigations of Siena referred a matter to the Italian Constitutional Court and requested that the Court declare Article 270 c.p.p unconstitutional.

Decision Overview

The central issue for the Court’s determination was whether limiting the use of wiretap evidence was constitutional, and whether authorizing a broad use of evidence obtained through wiretaps would be consistent with constitutionally-protected rights.

The referring judge argued that the prohibition against using results in another case, except for cases regarding crimes for which arrest in flagrante delicto is mandatory, violated the Italian Constitution. The judge highlighted the use of the word “procedimenti” (“proceedings”) in the provision instead of “processi” (“trial”) extended the prohibition to the pre-trial phase which would violate Article 3 of the Italian Constitution, which prohibits differential treatment, and Article 112, which establishes the duty of the public prosecutor to prosecute criminal complaints upon acquiring a notitia criminis. The judge submitted that the duty on the prosecutor is not limited only to certain crimes, and that that allowing the use of wiretap results exclusively for investigations of crimes for which arrest in flagrante delicto is necessary would violate the prohibition on illogical differentiation.

The Prime Minister intervened in the trial requesting that the matter be declared unfounded. The State’s Attorney (“Avvocatura dello Stato”) stated that the prohibition laid down in Article 270 c.p.p. concerns “probative efficacy and not (…) the acquisition of the elements necessary for the public prosecutor to make the determinations with regards to the exercise of criminal prosecution”. It added that “in no case can the power-duty of the public prosecutor, faced with a notitia criminis relating to an offence for which arrest in flagrante delicto is not mandatory, be considered prejudiced and thus can the prosecutor be prohibited from initiating the investigations referred to in Article 326 of the Code of Criminal Procedure”. The State’s Attorney stressed that the information resulting from the wiretaps may still be considered relevant for the purpose of an investigation aimed at determining whether a criminal offence existed.

The Court declared the matter inadmissible for vagueness in respect of the referring judge’s complaint regarding the violation of Article 3 of the Constitution. It also found that the complaint regarding the violation of Article 112 lacked legal grounding.

The Court observed that Article 270 c.p.p. strikes a balance between two constitutional principles: it protects citizens’ right to the freedom and secrecy of their communications and protects the public interest in prosecuting criminal offences. The Court stated that the right to freedom and secrecy of citizens’ correspondence and every other means of communication is protected by Article 15 of the Constitution and, as such, is inviolable. Its inviolability has a twofold meaning: under Article 2 of the Constitution the right is inviolable because its essential content cannot be constitutionally revised and the provision establishes a right which is considered foundational in the democratic system; and the right cannot be the object of any restriction or limitation unless a constitutionally protected public interest must be satisfied which would require an order by a motivated act of the judicial authority.

The Court noted that it had consistently found the investigation and prosecution of criminal offences to be a constitutionally protected public interest which may undoubtedly justify the employment of wiretapping. However, it stressed that the invasiveness of such an instrument with regards to the private sphere of third parties not involved in the offences investigated requires that any limitation overcome particularly rigorous validity conditions.

In ruling n. 34 of 1973, the Court had already stated that the act of the judicial authority authorizing wiretapping must be precisely and adequately motivated. The results of wiretapping, then, must be limited exclusively to the information strictly relevant to the trial for which it had been authorized. In order to comply with this rule, the judicial authority act must specify both the individuals who will be subjected to the measure, and the facts constituting criminal offences which are being investigated and prosecuted. Without these restrictions, the constitutional right to freedom of communications would be compromised, discouraged and disturbed. Accordingly, the use for evidentiary purposes of wiretap results in a different proceeding than the one for which the wiretapping had been authorized would constitute an inadmissible “blank authorization”.

The Court rejected the referring judge’s argument that Article 270 c.p.p. should be interpreted to prohibit the use of wiretap results also within the pre-trial phase which would violate Article 112 of the Constitution. The Court held that paragraph 2 of Article 270 c.p.p. regulates the use of wiretaps in a different proceeding as it provides that the minutes of the result shall be sent to the authority competent for that proceeding and it expressly refers to Article 268 c.p.p. Additionally, paragraph 2 implies that there is a different trial already pending and it refers to a provision concerning the use of wiretap results as evidence. A reading of the complete text of Article 270 c.p.p. therefore confirms that the prohibition to use wiretap results in proceedings other than those for which the wiretapping was authorized only refers to their use for evidentiary purposes. The referring judge’s interpretation, according to which the prohibition would prevent a public prosecutor from starting an investigation upon the notitia criminis obtained from the wiretapping, which would infringe Article 112 of the Constitution, was therefore unfounded.

Accordingly, the Court rejected the referring judge’s complaint that Article 270 c.p.p. was unconstitutional.