Judgment No. 20 of 2017
Paolo GROSSI, President - Marta CARTABIA, Author of the Judgment
In this case, the Constitutional Court considered a referral order challenging three legal provisions regulating the collection of evidence from the contents of written mail correspondence. The judge in the pending proceedings, in which secretly-made copies of a criminal defendant's correspondence were held to be inadmissible because the copies did not comply with the challenged provisions, alleged that the provisions were unconstitutional in that they provided only two permissible procedures for collecting evidence from written mail correspondence: confiscation for general mail, and inspection with the application of a stamp for prisoners' mail, both of which interrupt the flow of communication. The Referral Order claimed that this violated the principle of equality found in Article 3 of the Constitution both by differing from rules that, on the contrary, allowed for secretive interception of telecommunications and in-person conversations and by giving prisoners privileged status over unincarcerated defendants. It also alleged that they violated Article 112 of the Constitution by hindering the ability of prosecutors to proceed with criminal actions, as they are constitutionally bound to do. The Constitutional Court first dismissed an objection by the President of the Council of Ministers alleging that the Referral Order provided inadequate facts and argumentation, on the grounds that the Order did not need to provide detailed accounts of irrelevant aspects of the case and the particulars of the inadmissible evidence in order for the Court to form a judgment on the merits. The Court then declared the constitutional challenge to be unfounded. Citing the interrelated nature of constitutional rights, which may be curtailed in balance with other constitutional principles and constitutionally protected rights and interests, and the absolute reservation of law to the legislator found in Article 15 of the Constitution, the Court outlined its limited role as ensuring that the legislator had performed a balancing of constitutional rights and interests in a way consistent with the principles of appropriateness, necessity, and proportionality. The Court found that society had a paramount and constitutionally-protected interest in the prevention and prosecution of crimes, which the legislator could legitimately balance against the right of free and confidential communications, resulting in a limitation of that right. The Court then held that it was neither unreasonable nor arbitrary to provide different regulatory schemes for different forms of communication, even though this did not allow for the same secrecy in monitoring the contents of written correspondence that it did for other forms of communication, uniformity in regulation not being required by the equality principle. The Court specified, however, that its judgment did not imply that the legislator would be prevented from making future laws allowing for secret "interception" even of written mail correspondence.