The case, explained

The Open Case: Correspondence of Members of Parliament

8 min read · Updated October 2026 · Editorial oversight: Avv. Federico Papa

According to press reports regarding recent developments, the judicial case involving the Open Foundation has reached a decisive procedural turning point regarding the handling of digital material removed from the case file. The central issue, which saw the Florence Public Prosecutor's Office and the Italian Senate at odds, concerns the insurmountable limit placed by parliamentary prerogatives on investigative activities involving electronic devices belonging to third parties. This article examines how the constitutional protection of the secrecy of correspondence is not limited to the physical medium in the possession of the parliamentarian, but extends to the communicative content wherever it resides. Through our recurring twin case, we will see how this protection influences the actions of investigating magistrates when they encounter messages exchanged with members of Parliament during searches of private citizens or entrepreneurs.

The Open Case: Correspondence of Members of Parliament

In brief

The article analyzes the conflict of attribution raised in the Open Case regarding the seizure of WhatsApp messages and emails of MPs (Renzi, Boschi, Lotti) from third-party devices without prior authorization. It delves into the Constitutional Court's ruling which defines such messages as correspondence protected by Art. 68 of the Constitution, rendering illegitimately acquired data unusable. A twin case featuring Hon. Ottavio Perdoni is presented to illustrate the practical application of the principle of inviolability.

The fact
The investigation conducted by the Florence Public Prosecutor's Office into the Open Foundation hypothesized crimes of illicit party financing and corruption, involving prominent figures such as Senator Matteo Renzi and deputies Maria Elena Boschi and Luca Lotti. According to reports from Il Fatto Quotidiano and Il Dubbio, the critical phase of the proceedings arose from the seizure of smartphones and computers carried out in 2019 against non-parliamentary subjects, including an entrepreneur. Within these devices, investigators found a vast amount of WhatsApp messages and emails exchanged directly with the MPs under investigation. The Prosecutor's Office proceeded to acquire such data, believing that since these were third-party devices and messages already received or sent (and therefore no longer in transit), they did not enjoy the protections provided by Art. 68 of the Constitution but were simple documents. The Senate of the Republic instead raised a conflict of attribution before the Constitutional Court, arguing that the acquisition of a parliamentarian's correspondence always requires prior authorization from the relevant House, regardless of who physically holds the medium. At the end of a long process, the current procedural stage sees the removal and annulment of the acts with the obligation to strike the messages following the declaration of constitutional illegitimacy.
The rules at play
The regulatory framework revolves around Art. 68, paragraph 2, of the Constitution, which establishes that authorization from the relevant House is required to seize the correspondence of a member of Parliament. This rule does not constitute a personal privilege but a functional prerogative to safeguard the independence of the legislative power. Art. 15 of the Constitution also guarantees the inviolability of the freedom and secrecy of correspondence, a principle that finds procedural implementation in Law no. 140/2003. Art. 4 of this law specifies that the judicial authority must request authorization to proceed with investigative acts involving the MP's sphere of privacy. Violation of these procedures results in the pathological unusability of the results obtained, preventing such data from being used as evidence in criminal proceedings. The interpretative conflict specifically concerned the distinction between digital data as a document (acquirable under Art. 234 c.p.p.) and digital data as correspondence (subject to authorization).
What the case law says
The jurisprudence of the Court of Cassation had initially wavered on the definition of an archived message, sometimes assimilating it to a static document once the communication flow had ended. However, constitutional jurisprudence has recently clarified that the protection of correspondence does not cease upon receipt or reading of the message. According to the orientation established with the case at hand, emails and WhatsApp messages retain their nature as protected communication even if stored in the memory of a smartphone or on a cloud server. The judges established that the need for protection concerns the entire communicative process, including the storage of messages. Should the judicial authority encounter communications attributable to an MP on a third party's device, it must suspend the analysis and request parliamentary authorization if it intends to use those specific contents. The key principle is that the guarantee follows the message due to the subjective quality of the protected interlocutor, preventing constitutional guarantees from being undermined by seizure from third parties.
The twin case
Meanwhile, in Roccamesta…
Gaio Sventura, owner of a maintenance company in Roccamesta, ends up under investigation for an alleged irregularity in a minor municipal contract. Magistrate Nunzio Gavelio, convinced that Gaio obtained illicit favors, orders the seizure of his smartphone. During the forensic examination of the memory, Nunzio discovers hundreds of WhatsApp messages exchanged between Gaio and Hon. Ottavio Perdoni, former mayor and current member of Parliament. The messages do not only concern the contract but contain political reflections and strategies for future elections. Nunzio Gavelio decides to include all the screenshots in the file without consulting anyone, convinced that since the phone belongs to Gaio, Perdoni's parliamentary protection does not apply. Attorney Prudenzia Cavillo, Gaio's defense counsel, immediately raises an objection during the preliminary hearing before Magistrate Giusto Gavelio. Prudenzia argues that those messages are protected correspondence of a member of Parliament and that the PM should have stopped as soon as the institutional interlocutor was identified. Prudenzia's thesis is simple: one cannot use Gaio as a Trojan horse to spy on Perdoni without going through Parliament. Nunzio Gavelio counters that Perdoni is not the owner of the seized phone, but Giusto Gavelio, applying constitutional principles, orders the messages to be removed from the file and prohibits their use, as the prior authorization for seizure required for the MP's correspondence is missing. Warning: the practical case is a hypothetical educational reconstruction and does not correspond to the real case nor does it anticipate its outcome; any reference to real persons or entities is purely coincidental; the analysis is based exclusively on the regulations and orientations referred to and constitutes general legal information, not legal advice.
Step-by-step analysis
1. Identification of the material: the magistrate must qualify the messages found as correspondence and not as mere documents, regardless of the digital medium.
2. Verification of the interlocutor's status: once it is established that one of the participants in the communication is a sitting member of Parliament, the need to evaluate the prerogatives of Art. 68 Cost. arises.
3. Suspension of acquisition: the PM cannot proceed with the analysis of messages involving the MP without first obtaining the approval of the House of origin.
4. Request for authorization: the judicial authority must justify the need for such data for the investigations and await the parliamentary resolution.
5. Sanction for non-compliance: if the messages are acquired without authorization, the judge must declare them unusable, ordering their annulment and removal from the usable evidentiary material.
Possible outcomes
1. Removal of evidence: the most likely scenario in case of violation of Art. 68 is a court order directing the removal of the messages, which may not influence the final decision.
2. Weakening of the prosecution's case: if the illegitimately acquired messages constituted the pillar of the prosecution, the loss of such evidence can lead to a request for dismissal or an acquittal for lack of certain elements.
3. Conflict of attribution: if the magistrate persists in using the data, the House of origin can appeal to the Constitutional Court to declare the infringement of its competencies, obtaining the annulment of the harmful acts.
From the twin case to the real case
The case of Gaio Sventura and Hon. Perdoni clearly illustrates how constitutional protection is not meant to protect the individual, but the parliamentary function against possible interference by the judiciary. In the real Open Foundation case, the Constitutional Court's decision reaffirmed that the boundary between a legitimate investigative act and a violation of prerogatives lies in compliance with authorization procedures, even when investigating third parties. The debate on the completeness of investigations once such evidence is removed remains open in the real case, but the principle of constitutional legality prevails over the search for evidentiary data at any cost.
Meet the cast of the columnGaio Sventura and the other inhabitants of Roccamesta return in every practical case.Read their stories
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What it teaches professionals
1. Preliminary contact analysis: lawyers assisting subjects undergoing searches must immediately verify whether members of Parliament are among the client's digital contacts to promptly object to the unusability of any acquisitions.
2. Management of the chain of custody: it is essential to monitor how data extracted from devices are transferred into the files, reporting any failure to obtain prior authorization under Art. 68 Cost.
3. Technical distinction: one must master the distinction between data in transit and archived data, knowing that for parliamentarians this distinction has been superseded in favor of a unitary protection of digital correspondence.

References: Articolo 68 CostituzioneArticolo 15 CostituzioneLegge 140/2003Articolo 234 Codice di Procedura PenaleSentenza della Corte Costituzionale sulla tutela della corrispondenza informatica dei parlamentaries (Sent. 170/2023)

Editorial oversight: Avv. Federico Papa·ICAMUpdated 23 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction

Frequently asked questions

What happens if the police find a politician's messages by chance?

In the event of accidental discovery, the judicial authority must suspend the specific acquisition activity of those messages and request authorization from the politician's House of origin to use them as evidence.

Are WhatsApp messages considered documents or correspondence?

According to the Constitutional Court, if exchanged by an MP, WhatsApp messages are considered correspondence protected by Art. 68 Cost., even if already read or archived on the smartphone.

Can an ordinary citizen invoke the same protection if they write to an MP?

The protection aims to safeguard the parliamentary function, but the practical effect is that messages on an ordinary citizen's phone also become procedurally unusable if the interlocutor is an MP and authorization is lacking.