CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 décembre 2024

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page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s68D33C75 { width:34.89pt; font-family:Arial; display:inline-block } .sF270E452 { width:162.44pt; font-family:Arial; display:inline-block } .sF993D337 { width:25.88pt; font-family:Arial; display:inline-block } .sF78227B2 { width:156.43pt; font-family:Arial; display:inline-block } .fixListIndent { list-style-position: inside } FIRST SECTION CASE OF GRANDE ORIENTE D’ITALIA v. ITALY (Application no. 29550/17)   JUDGMENT   Art 8 •   Home •   Correspondence • Search of applicant association’s premises (a   Masonic lodge) ordered by a parliamentary commission of inquiry and seizure of large number of paper and digital documents, including the list of the association’s members, their names and their personal data • Search carried out in the context of an investigation into the serious matter of Mafia infiltration of masonic lodges • Search order not subject to prior judicial scrutiny capable of circumscribing its wide and indeterminate scope • Lack of evidence or a reasonable suspicion of the applicant’s involvement in the matter under investigation • Absence of sufficient counterbalancing guarantees, in particular of an independent and impartial review of the search order • Need for some form of ex ante or ex post control required by an independent and impartial authority as a safeguard against arbitrariness • In the specific case-circumstances and in view of the subsidiarity principle and the State’s margin of appreciation in matters closely linked to the separation of powers, not for the Court to indicate the type of remedy to be provided   • Impugned measure not “in accordance with the law” nor “necessary in a democratic society”   Prepared by the Registry. Does not bind the Court.   STRASBOURG 19 December 2024   Referral to the Grand Chamber   28/04/2025   This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Grande Oriente d’Italia v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ivana Jelić , President ,   Alena Poláčková,   Georgios A. Serghides,   Erik Wennerström,   Raffaele Sabato,   Alain Chablais,   Artūrs Kučs , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   29550/17) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an association registered under Italian law, Grande Oriente d’Italia (“the applicant association”), on 13   April 2017; the decision to give notice of the application to the Italian Government (“the Government”); the parties’ observations; Having deliberated in private on 26 November 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns a search of the applicant association’s premises ordered by a parliamentary commission of inquiry and the subsequent seizure of a number of paper and digital documents, in particular a list, including names and personal data, of more than 6,000 members of the applicant association. The applicant association raises complaints under Articles   8, 11   and 13 of the Convention. THE FACTS 2.     The applicant association is an Italian Masonic association which groups together several lodges. It has been in existence since 1805 and is affiliated to Universal Freemasonry. In Italian law the applicant association has the status of an unrecognised private law association under Article 36 of the Civil Code. It therefore does not have legal personality. It has filed its Articles of Association with a notary ( notaio ) and anyone can have access to them. The applicant association was represented by Mr V. Zeno Zencovich, a lawyer practising in Rome. 3.     The Government were represented by their Agent, Mr L. D’Ascia, Avvocato dello Stato (counsel representing the State). 4.     The facts of the case may be summarised as follows. 5 .     The Parliamentary Commission of Inquiry on the phenomenon of mafias and other criminal associations, including foreign ones ( Commissione parlamentare d’inchiesta sul fenomeno delle mafie e sulle altre associazioni criminali anche straniere ; hereinafter “Parliamentary Commission of Inquiry”) was established by Law no. 87 of 19 July 2013 (“Law no.   87/2013”; see paragraph 25 below). It was mandated, inter alia , to conduct an inquiry into the relations between the Mafia and Freemasonry because of information emerging from criminal proceedings that were then proceeding in various courts. 6 .     On 3 August 2016 the Parliamentary Commission of Inquiry heard Dr   Bisi, the Grand Master of the applicant association, in an “informal hearing” ( libera audizione ), meaning that he was not burdened by any particular legal obligation. The hearing concerned the relationship between the Mafia and Freemasonry. Dr Bisi was asked whether he was prepared to hand over to the Parliamentary Commission of Inquiry a list of the members of the lodges participating to the applicant association, and he replied that this was not possible for reasons of confidentiality. 7 .     On 4 August 2016 the President of the Parliamentary Commission of Inquiry wrote to Dr Bisi asking him to provide the abovementioned list. By a letter of 11 August 2016, Dr Bisi replied that he could not comply with the request. He relied on the Italian law on the protection of personal data, but also on the fact that the request of the Parliamentary Commission of Inquiry appeared to aim at a fishing expedition, as it did not mention any ongoing investigations against identified members of the applicant association nor specify any particular suspected crimes. 8.     On 19 September 2016 the applicant association asked for an opinion of the National Data Protection Authority ( Garante per la protezione dei dati personali ) on whether the applicant association would be in breach of the domestic rules on data protection if it handed over a list of its members, including their names and personal data, as requested by the Parliamentary Commission of Inquiry. 9.     On 4 October 2016 the National Data Protection Authority, relying on judgment no. 4 of 12 March 1983 of the Court of Cassation (see paragraph   29 below), said that it had no competence over the powers of Parliament, including its power to institute or regulate parliamentary commissions of inquiry. 10.     On 21 December 2016 the President of the Parliamentary Commission of Inquiry reiterated its request for a list of the members of the applicant association’s constituent lodges (see paragraphs 6-7 above). This request was however limited to lists of the members of lodges in the regions of Calabria and Sicily, starting from 1990, and lists of the lodges in the other regions of the country, giving the number of individual members in each lodge. 11 .     By a letter of 9 January 2017, Dr Bisi again refused to give the Parliamentary Commission of Inquiry any list. He observed that its request had made no reference to any ongoing investigations and that the request was not limited to information about specific crimes allegedly committed by individual members of the applicant association. The Grand Master considered that the request was generic and unreasoned and could therefore not be upheld. He argued, in particular, that under Article 82 of the Italian Constitution a parliamentary commission of inquiry had the “same powers and limitations” as the judicial authorities and that, in his view, the Parliamentary Commission of Inquiry was, in the present case, exceeding those limitations. 12.     The Parliamentary Commission of Inquiry therefore summoned Dr   Bisi as a witness, so that he was required by law to tell the truth and would otherwise be guilty of the offence of perjury. At the sitting of 18   January   2017, Dr Bisi again said that he was unable to disclose the names of the members of the applicant association, as requested by the Parliamentary Commission of Inquiry. 13 .     On 1 March 2017 the Parliamentary Commission of Inquiry, meeting in a private session, ordered a search of the applicant association’s premises and the seizure of various paper and digital documents. The reasoning of the order reads as follows: “WHEREAS ... -     from the hearings held up to now and from the documentation acquired, it has emerged that there is a definite danger that Cosa Nostra and the Ndrangheta have infiltrated Freemasonry, assisted by the principle of confidentiality and by the bonds of obedience of Masonic associations, and it is also pointed out that, in parallel to the changes in mafia-type associations, unlawful arrangements can also be made through Masonic lodges whose members may include members of the ruling class and the country’s businessmen; -     in order for the parliamentary inquiry to be conducted successfully, it is essential that a list of the names of the members of Masonic lodges is obtained urgently, in order to check whether there are individuals among those members that are linked, in any of various ways, to mafia-type associations, and to find out how many of them there are; -     in particular, it is necessary to obtain, as matter of priority, a list of the lodges of Sicily and Calabria (those being the regions where the main past and present criminal investigations have been focused, and where Masonic lodges have a substantial and increasing number of members), and of the names of their members starting from 1990 (the period to which the most relevant reports about Mafia infiltration in Freemasonry refer).” 14 .     The search order referred to the following sources of information: prosecutorial hearings conducted by the Public Prosecutor’s Offices of Reggio Calabria, Palermo and Trapani; witness statements of Grand Masters and other members of Italian Masonic lodges; and documents obtained by the National Anti-Mafia and Anti-Terrorism Directorate. 15 .     The Parliamentary Commission of Inquiry ordered a search of the applicant association’s premises, including outbuildings and furnishings, computers and electronic information systems, even where they were protected by security measures, in order to find and seize lists of all categories of members of the lodges of Calabria and Sicily, starting from 1990, including people whose membership of the associations or active participation in them had ceased, and giving their rank and role in each case, and also all documentation concerning suspended or dissolved lodges in Calabria and Sicily, again starting from 1990 and including the names of all their members and their personal files and information about any inquiries held and the decisions taken. The Parliamentary Commission of Inquiry then ordered the seizure of the abovementioned documents, if they were in hard copy, and the seizure of computer files of whatever nature that contained such documents. These had to be copied immediately, in the presence of the interested parties, so as to ensure that they were a true copy of original and to avoid alteration of the original data, and the computers and files seized had to be restored to the legitimate owners once the operation was over. 16 .     The search was conducted by the Central Service for the Investigation of Organised Crime of the Revenue Police ( Guardia di Finanza ). The officers identified and seized the identity documents of the personnel present in the applicant association’s premises. The search covered all the applicant association’s premises, including archives and library, several computers and the personal residence of the Grand Master. The search resulted in the seizure of numerous paper and digital documents, including lists of the names of approximately 6,000 persons who were registered with the applicant association, as well as hard disks, pen drives and computers. 17 .     The seized items were kept in accordance with the secrecy regime established under sections 5 and 6 of Law no. 87/2013 (see paragraph   25 below). The Parliamentary Commission of Inquiry ordered that they had to be kept “at premises under the control of the judicial police dealing with this matter, so as to prevent computer access other than that authorised in the proceedings between the parties”, in a room equipped with a security door, video surveillance and an alarm. 18 .     On 1 March 2017 another Masonic lodge which had been subjected to a similar search applied to the Rome District Court for a review of the search order under Article 257 of the Code of Criminal Procedure (CCP). The court dismissed the application on 16 March 2017, observing that an ordinary judge had no jurisdiction to review any act of a parliamentary commission of inquiry, including a search order (see paragraphs 29 ‑ 32 below). 19 .     On 16 March 2017 the applicant association asked the Parliamentary Commission of Inquiry to reconsider the search order under its own procedures ( ricorso in autotutela ; see paragraph 26 below), arguing that it was unlawful and illegitimate and that it was generic and did not contain any allegations of specific offences. The Parliamentary Commission of Inquiry made no ruling on the request. 20.     On several dates, selected elements of the extensive material seized were examined by the domestic authorities, in the presence of a representative of the applicant association. Only material specifically referred to in the search and seizure order was disclosed, and the parties had the right to be present while the material was being selected and seized. Anything found that was not related to the subject matter of the search and seizure order was destroyed. A copy of all the computer material was made and the originals were returned on 28   March   2017. 21 .     On 31 March 2017 the Grand Master of the applicant association filed a criminal complaint with the Public Prosecutor’s Office of the Rome District Court. He argued that both the search and seizure order itself and the way it had been enforced constituted criminal offences. Claiming that State powers had been misused, the applicant association requested the prosecutor to apply, under Article 134 of the Italian Constitution, for a judicial review by the Constitutional Court of a misuse of powers as between State bodies ( conflitto di attribuzione tra poteri dello Stato ; see paragraphs 23 and 35 below). 22 .     On 23 October 2017 the Public Prosecutor dismissed that application, including its request to apply for a judicial review of a conflict of jurisdiction between the powers of the State, and discontinued the investigation of the applicant association’s criminal complaint. The public prosecutor observed, in particular, that the ordinary judge lacked jurisdiction over the acts of a parliamentary commission of inquiry (see paragraphs 29-30 below). The public prosecutor further observed that the conflict of jurisdiction could have been taken up with the Constitutional Court, but further observed that the conditions for seeking such a review had not been met in the specific circumstances of the case, since there were no criminal proceedings about the same issues which were being investigated by the Parliamentary Commission of Inquiry and there were therefore no judicial functions being exercised that it could interfere with. Moreover, referring to the different nature and purpose of a parliamentary commission of inquiry, the public prosecutor further held that no conflict of jurisdiction could be identified in the present case. As regards the way the search and seizure order in the present case had been carried out, the public prosecutor denied that that had been unlawful. RELEVANT LEGAL FRAMEWORK AND PRACTICE            RELEVANT DOMESTIC LAW A.    Constitution 23 .     The relevant Articles of the Constitution read as follows: Article 18 “Citizens have the right to form associations freely and without authorisation for purposes that are not forbidden by the criminal law. Secret associations and associations that even indirectly pursue political aims by means of organisations of a military character shall be forbidden.” Article 82 “Each Chamber of Parliament may order inquiries into matters of public interest. For these purposes it shall appoint a commission from among its members reflecting the proportion of the various groups within the Chamber. The commission of inquiry shall conduct investigations and examinations with the same powers and limitations as a judicial authority.” Article 134 “The Constitutional Court adjudicates ... on applications for judicial review of misuse of powers as between State bodies [ conflitto di attribuzione tra poteri dello Stato ] ...” B.    Code of Criminal Procedure 24 .     The relevant provisions of the CCP read as follows: Article 247: Cases and forms of searches “1.     When there is a well-founded reason to believe that someone is concealing on his person the proceeds of the offence or things pertaining to the offence, a personal search shall be ordered. When there is a well-founded reason to believe that such things are in a specifiable place or that the arrest of an accused person or fugitive may be carried out there, a search of that place shall be ordered. 1- bis .     When there is a well-founded reason to believe that data, information, computer programs or evidence in any way pertinent to the offence are in a computer or telecommunications system, even if it is protected by security measures, a search shall be ordered, using technical means to ensure the preservation of the original data and to prevent their alteration. 2.     The order for the search shall give reasons. 3.     The judicial authority may proceed through their own staff or arrange for the search to be performed by judicial police officers, to whom power should be delegated by the same order.” Article 248: Delivery request “1.     If a search is to be made for a specific thing, the judicial authority may ask for it to be handed over. If the thing is presented, the search shall not be carried out unless it is considered useful to do so for the completeness of the investigation. 2.     In order to trace the things to be seized or to ascertain other information useful for the investigation, the judicial authority or officers of the judicial police delegated by it may examine bank accounts, documents and correspondence as well as data, information and computer programs. In the event of a refusal, the judicial authority shall conduct a search.” Article 252: Seizure following a search “1.     Things found as a result of a search shall be seized in accordance with the provisions of Articles 259 and 260.” Article 257: Review of the seizure order “1.     The defendant, the individual from whom items were seized and the individual who would be entitled to have them returned may lodge an application for review ( riesame ) under Article   324. 2.     The application for review ( riesame ) shall not suspend the enforceability of the seizure order.” C.    Law no. 87 of 19 July 2013 (Institution of a Parliamentary Commission of Inquiry on the phenomenon of mafias and other criminal associations, including foreign ones) 25 .     Law no. 87 of 19 July 2013 instituted the Parliamentary Commission of Inquiry. Its relevant provisions read as follows: Section 1: Parliamentary Commission of Inquiry into the phenomenon of mafias and other criminal associations, including foreign ones “1.     A Parliamentary Commission of Inquiry into the phenomenon of mafias and other criminal associations, including foreign ones in so far as they operate in the national territory, is hereby established for the duration of the 17th Legislature, pursuant to Article 82 of the Constitution, with the following tasks: ... (e)     ascertaining and assessing the nature and characteristics of the changes and transformations of the phenomenon of the Mafia and all its connections, including the institutional ones, with particular regard to those organisations permanently established in regions other than those into which they have traditionally penetrated and those where they have become strongly involved in the local economy or developed international connections, including cooperation with other criminal organisations in order to conduct new forms of illegal activity likely to cause damage to persons, the environment, assets, intellectual property rights or national security, with particular regard to the promotion and exploitation of irregular migrants; and for the same purposes to acquire a deeper knowledge of the economic, social and cultural characteristics of the areas where those criminal organisations originate and expand; ... 2.     The Commission shall conduct investigations and examinations with the same powers and limitations as a judicial authority. The Commission may not take measures relating to the freedom and secrecy of correspondence and any other form of communication or to any personal freedom, with the exception of forcing a person summoned to appear as a witness for failure to appear under Article 133 of the Code of Criminal Procedure. 3.     The same tasks are allocated to the Commission with reference to other criminal associations under whatever names, to foreign mafias, or those of a transnational nature within the meaning of Article 3 of Law no. 146 of 16 March 2006, and to all criminal groupings that have the characteristics referred to in Article 416- bis of the Criminal Code or that present a serious danger to the social, economic and institutional system.” Section 5: Request for acts and documents “1.     The Commission may obtain, also by way of derogation from the prohibition laid down in Article 329 of the Code of Criminal Procedure, copies of orders and documents relating to proceedings and investigations conducted by a judicial authority or other investigating bodies, as well as copies of orders and documents relating to parliamentary enquiries and investigations. A judicial authority may also forward copies of orders and documents on its own initiative. 2.     The Commission shall ensure that secrecy is maintained where the acts and documents copied pursuant to paragraph 1 are covered by secrecy. 3.     The Commission may obtain, from bodies and offices of the public administration, copies of deeds and documents held, produced or otherwise acquired by them on matters pertaining to the purposes of this Law. 4.     The judicial authority shall act promptly and where copies of deeds or documents have been requested may delay the transmission of them by order giving reasons relating only to its preliminary investigation. The order is valid for six months and may be renewed. When the reasons for the order cease to exist, the judicial authority shall transmit the material requested without delay. The order may not be renewed or take effect after the close of the preliminary investigation. 5.     When orders or documents have been made subject to functional secrecy by the relevant parliamentary commissions of enquiry, that secrecy cannot be used against the Commission under this Law. 6.     The Commission shall determine which orders and documents must not be disclosed, and the same applies in relation to requirements relating to other ongoing investigations or enquiries.” Section 6: Secrecy “1.     Members of the Commission, officials and staff of any rank and grade attached to the Commission and any other person who cooperates with the Commission or carries out or assists in carrying out investigative measures or has knowledge thereof by reason of their office or employment shall be bound by an obligation of secrecy with regard to all the orders and documents referred to in Article 5(2) and (6). 2.     Unless it constitutes a more serious offence, a breach of secrecy shall be punished pursuant to Article 326 of the Penal Code. 3.     Unless the breach of secrecy constitutes a more serious offence, the same penalties shall apply to any person who discloses, in whole or in part, even in summary or in the form of reported information, orders or documents from investigation proceedings whose disclosure has been prohibited.” D.    The power of self-correction ( autotutela ) 26 .     As part of its power of “self-correction” ( autotutela ), a public administrative body can annul or revoke decisions that have already been made, without the intervention of a judicial authority. II.       RELEVANT DOMESTIC CASE-LAW A.    Constitutional Court 27 .     In judgment no. 231 of 22 October 1975, the Constitutional Court clarified that the purposes and activities of parliamentary commissions of inquiry differ markedly from those of investigations conducted by judicial authorities. The task of parliamentary commissions of inquiry is not to adjudicate but only to gather the information and data necessary for the exercise of the Parliament’s legislative functions; they do not aim to effect, nor could their concluding reports effect, any legal changes (unlike when they take a judicial decision), but simply aim to make available as much useful information as possible to the Chambers of Parliament so that they can decide what to do with full knowledge of the facts, and can either propose legislation or invite the Government to take appropriate measures. 28.     The Constitutional Court therefore held that holding an inquiry was part of the function of parliamentary scrutiny; an inquiry was motivated by political concerns and had equally political ends; it could not take decisions on crimes or criminal responsibility, because if it did so, it would usurp the jurisdiction of the courts. The Constitutional Court further held that if a parliamentary commission became aware of facts that could constitute offences during the course of its investigations, it would be obliged to report them to the judicial authorities (see also, Constitutional Court, judgments no.   219 of 24 June 2003, and no. 26 of 13   February   2008). B.    Court of Cassation 1.      Lack of jurisdiction of the ordinary judge 29 .     In judgment no. 4 of 12 March 1983, the Court of Cassation, sitting as a full court, held that an ordinary judge had no jurisdiction over the actions of a parliamentary commission of inquiry. The case concerned an application for review of a search order issued by a parliamentary commission of inquiry against the applicant association, concerning a list of the names of its members. 30 .     As regards the nature of a parliamentary commission of inquiry, the Court of Cassation observed that it was not a “body” of the Chambers of Parliament but a direct instance of the Chambers themselves which allowed them to acquire the information needed to exercise their legislative powers by holding an inquiry. Accordingly, the Court of Cassation held that a parliamentary commission of inquiry could not be considered, from either an objective or a subjective point of view, a body with a particular jurisdiction or exercising judicial functions. It exercised of a “power of inquiry” which was different in nature and purpose from the exercise a judicial function. In particular, a parliamentary commission of inquiry did not have any power to adjudicate, but only to collect information and data relevant to the exercise of legislative powers. The Court of Cassation therefore concluded that a parliamentary commission of inquiry was a “political body”. 31 .     With specific regard to search and seizure ordered by a parliamentary commission of inquiry, the Court of Cassation held that it was different, in its purpose and effects, from a search ordered by a judge in relation to a crime. A search ordered by a judge was limited by the judgment which would conclude the criminal proceedings: by that point, the seized items had to have been either confiscated or returned, as provided for by law. Search and seizure ordered by a parliamentary commission of inquiry concerned items pertaining to the inquiry, with the consequence that it was limited by the inquiry: items seized could be retained for a limited period of time, which could not extend beyond the inquiry, which of its nature was limited in time. 32 .     The Court of Cassation further held that Article 82 of the Constitution, which said that the powers exercised by a parliamentary commission of inquiry were subject to the same limitations as a judicial authority, did not entail that the same remedies (including an application for review of a search order) applied. In the same way that a search order made by a judge was subject to review by a judge, a search order made by a parliamentary commission of inquiry would have to be subject to review by a body of the same legislative power. 33 .     In the light of the above, the Court of Cassation concluded that an ordinary judge had no jurisdiction over the actions of a parliamentary commission of inquiry and could not quash, revoke or modify something such as a search and seizure order. 34 .     As regards the remedies available to the individual affected by the actions of a parliamentary commission of inquiry, the Court of Cassation held that they were subject to the ordinary provisions concerning liability for unlawful acts, both civil and criminal. 2.      Application for judicial review of a misuse of powers as between State bodies ( conflitto di attribuzione tra poteri dello Stato ) 35 .     In judgment no. 15236 of 12 May 2022, the Court of Cassation, sitting as a full court, reiterated that a judge was not obliged to make an application for judicial review by the Constitutional Court of a misuse of powers as between State bodies. The judge had the power to decide whether the case in front of him or her fell within the domestic jurisdiction of Parliament as a matter of its autonomy and independence, or whether it was a matter for him or her under the ordinary rules of his or her jurisdiction. 3.      Search orders 36 .     In several judgments, the Court of Cassation held a search order to be void where it did not include a description of the allegations against the person under investigation, the legislative provision making that conduct a criminal offence, or the nature of the objects that had to be seized and how they were relevant to the crime under investigation, and that merely referring to the provision supposedly violated was insufficient (see, for example, Court of Cassation judgments no. 41765 of 12 September 2023; no.   37639 of 13   March 2019; no. 13594 of 27 February 2015; and no.   5930 of 31   January   2012). 37 .     The Court of Cassation further held that the judiciary had to order the return of objects seized once the criminal investigation and trial were over (see Court of Cassation, judgment no. 22078 of 18 April 2023). III.     RELEVANT INTERNATIONAL INSTRUMENTS A.    Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 38 .     The relevant part of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108, hereinafter “the Data Protection Convention”), which entered into force on 1 September 2001 in respect of Italy, read as follows: Article 6: Special categories of data “Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. The same shall apply to personal data relating to criminal convictions.” B.    Recommendation R (87)15 of the Committee of Ministers of the Council of Europe, regulating the use of personal data in the police sector 39 .     Recommendation R (87)15 was adopted by the Committee of Ministers of the Council of Europe on 17 September 1987 at the 410 th   meeting of the Ministers’ Deputies. Its relevant parts read as follows: Principle 2: Collection of data “2.1.     The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation. ... 2.4.     The collection of data on individuals solely on the basis that they have a particular racial origin, particular religious convictions, sexual behaviour or political opinions or belong to particular movements or organisations which are not proscribed by law should be prohibited. The collection of data concerning these factors may only be carried out if absolutely necessary for the purposes of a particular inquiry.” IV.    INTERNATIONAL MATERIALS A.    Venice Commission 40.     In paragraph 131 of its opinion CDL-AD(2019)015 of 24   June   2019, the European Commission for Democracy through Law (the Venice Commission), the Council of Europe’s advisory body on constitutional matters, noted that the creation of committee of inquiries by national parliaments is a common feature of many countries. Their mandate is to investigate specific events or situations. Their primary functions appear to be to ensure parliamentary supervision of the executive, but they may also be created for other purposes, for example collecting information for lawmaking purposes. 41.     In its third-party intervention in the case of Rywin v.   Poland (nos.   6091/06 and 2 others, 18 February 2016), the Venice Commission observed, inter alia , that in the majority of the countries examined those bodies could be provided with some or all of the usual powers of the investigating judges, and that this is a matter largely defined by the State’s history and experience in the field. The third-party intervention was summarised by the Court as follows: “190.     In its observations, the European Commission for Democracy through Law, known as the Venice Commission, emphasised the essentially political nature of proceedings conducted by parliamentary commissions of inquiry, which were not to be confused with criminal investigations or proceedings. Such commissions should not make any assessment or adjudication as to the criminal liability of persons covered by the inquiry, those powers being reserved for the public prosecutor and the courts. At the same time, it was in the nature of political ‘scandals’ – whether alleged or real – that they might give rise to parallel processes. A case under parliamentary inquiry might at the same time be subject both to administrative inquiries and to court proceedings. However, this situation required all parties involved to ensure that proper distance was kept between the parliamentary (political) inquiry and the criminal investigations or proceedings. 191.     The Venice Commission took the view that in the event of the discovery of elements suggesting a criminal offence, the commission of inquiry would naturally have to notify the public prosecutor and provide the latter with the relevant information and documents, to the extent that it was allowed to do so under national law. Such discovery should not in itself stop an otherwise legitimate parliamentary process of inquiry. There was no such legal obligation under international or European law. In accordance with the principle that Parliament – as an autonomous institution separate from the judiciary – cannot be impeded from carrying out its own inquiries, the commission should continue to look into the case and make its own (political) assessment on the basis of its own examination. It should in particular have full discretion to continue examining the facts, even if they may constitute criminal charges. 192.     The Venice Commission pointed out that, even when a commission looked into the possible criminal conduct of individuals, its process was essentially one of a political nature and was not to be confused with criminal investigations and proceedings. The results of a parliamentary inquiry would not alter the legal order. The report which closed its work was in itself only an incentive to parliamentary discussion. The ultimate aim of the inquiry was transparency with a view to ensuring that the public were informed of matters affecting the   res publica   (the public good). 193.     In the Venice Commission’s opinion, searching for offences could not be the only goal of an inquiry conducted by a parliamentary commission, or even the main purpose of its creation. This would be unconstitutional, even if domestic law did not provide for any sanction. The means granted to a commission of inquiry always had to serve the jurisdiction of the parliament in a system of separation of powers – either to establish the responsibility of government and ministers or to collect information necessary for more effective legislation or to present political recommendations to government. Even if identical items might be subject to both criminal proceedings and a parliamentary inquiry, the aim of the two processes should always be different. The criminal investigation should lead to an individual legal measure: the conviction or acquittal of the accused. The commission of inquiry, for its part, had no power over individuals, except to call them to testify. 194.     The Venice Commission stressed the fact that proper procedures had to be established for cooperation and the exchange of information and evidence between the commission of inquiry and the public prosecutor, while respecting the differences between the two processes and the procedural rights of the person suspected of committing a criminal offence or other persons appearing before the commission. 195.     During its inquiries, hearings and deliberations, a parliamentary commission had to take proper account of the pending criminal investigations or proceedings. Its members had to exercise caution so as not to make assessments or statements on the issue of guilt, or in other ways disregard the presumption of innocence principle. A commission had to take great care to ensure that its inquiries did not obstruct or in any other way unduly interfere with the criminal investigation or proceedings. When drafting its report, a parliamentary commission had to take care not to make any assessments of a criminal legal nature and in particular not to pass judgment on the criminal liability of the persons concerned. It should, however, remain free to describe and analyse all the facts of the case and to assess these from a political perspective. 196.     The fact that persons not holding public powers were involved should not prevent a parliamentary commission from enquiring into the conduct of such person to the extent that it was relevant. If a public scandal was being scrutinised, the fact that a person did not occupy any public role should not exempt him or her from appearing before the commission. 197.     The Venice Commission took the view that it should primarily be for the national law to determine whether and to what extent the hearings of a parliamentary commission should be open to the public. This applied regardless of whether the witnesses summoned to give testimony were private individuals or official figures (ministers or civil servants). From a legal perspective this was only problematic if the process led to the disclosure of secret or classified information, or if the persons summoned to give testimony were forced to publicly disclose information that was protected as confidential by law, or if their rights to privacy under national or European law were infringed. As regards the summoning before a commission of inquiry of individuals holding public office, any restriction to the public nature of their hearing should be exceptional and justified by specific objectives such as national security or the protection of secret or confidential information. 198.     When private persons were summoned to testify before parliamentary commissions, they would usually be asked to give information about their relations and dealings with government figures. In such cases the public might well have a legitimate interest in full openness and transparency. At the same time, the right of private individuals to respect for their private and family life might more easily justify or necessitate the conduct of proceedings behind closed doors. There might be circumstances where this was necessary to ensure conformity with the European Convention on Human Rights, in particular Article   8 thereof. Moreover, holding closed-door meetings of some sessions of the commission of inquiry might also contribute to their effectiveness, as witnesses tend to feel freer is the proceedings are covered by secrecy. 199.     In the Venice Commission’s view, the ‘best model’ was one under which a balance of interests was maintained by the parliamentary commission’s members on the basis of the case at hand. This should preferably be provided for expressly in the inquiry’s procedure, whether laid down in statute law or in parliamentary rules of procedure.” B.    European Parliament 42.     In March 2020 the European Parliament published a comparative survey on committees of inquiry in national parliaments, which gathered information from in total 20 Member States’ parliaments that replied to a questionnaire. The survey noted that most EU Member States’ parlia