The Council of State is not prepared to judge the constitutionality of the new law 5002, nor of the previous one, regarding the (non) possibility of informing those affected about the lifting of the confidentiality of their telecommunications. However, this leaves the citizen unprotected against illegal surveillance.
As is known, PASOK/KINAL President Nikos Androulakis learned that he was being “legally” monitored by the EYP on August 5, 2022, following the resignations of the Prime Minister’s Chief of Staff Grigoris Dimitriadis and the former EYP commander Panagiotis Kontoleontas. Mr. Androulakis was never informed of the specific reasons for his monitoring by connection. With this very purpose, on September 7, 2022, his lawyers filed an application with the Communications Privacy Assurance Authority (ADAE), requesting, on the basis of law 4790/2021, which was in force before December 2022:
- To be granted a full copy of the surveillance file, which Mr. Androulakis' lawyers believed that ADAE could extract during the audit it would carry out at EYP. Indeed, by decision it had already taken on 29 August, ADAE visited EYP on 7 and 8 September 2022, but was unable to find the data from Mr. Androulakis' surveillance file. EYP's refusal to hand over data on the grounds that it has been destroyed may lead to the imposition of sanctions against the National Intelligence Service, a right that ADAE has under Law 3115/2003, which describes its ability to impose penalties on public services and private provider companies.
- The leader of PASOK/KINAL should be given a copy of the order requesting the lifting of the confidentiality of his communications, as well as any other part of the correspondence contained in the file of the prosecutorial orders for the lifting of his confidentiality. Mr. Androulakis' lawyers invoke an order by which the president of ADAE informs "in any case the leaders of the parties represented in Parliament".
Abolition of judicial protection
Four days after the letter from Mr. Androulakis, ADAE President Christos Rammos responded, confirming the inspections at EYP on September 7 and 8, 2022, but warning that:
- The possibility of providing files and documents held by the EYP is not included in the responsibilities of ADAE, while the provision of confidential documents to interested parties is not permitted.
- Under Law 4790/2021, which was in force at the time, in any case where the lifting of the confidentiality of communications has been imposed for reasons of national security, ADAE cannot notify the affected party of the lifting measure, even if the purpose for which it was ordered is no longer at stake. “The provision of a copy of your file by ADAE would violate the above provision.” Elsewhere in his letter, Mr. Rammos states that ADAE is obliged to communicate the full content of the provisions and resolutions only to the Minister of Justice.
Two months later, Mr. Androulakis, through his lawyers, submitted an act of annulment of the above response of ADAE before the Council of State. With this, he requests that the provision (of 4790/2021) prohibiting his notification be declared invalid, as unconstitutional. Under the even older law in force before 2021, “in the event that the notification of the measure was decided, the data that had been collected or seized and the material that was recorded or recorded in execution of the provision for the lifting of secrecy were returned to their owner. Otherwise, they were destroyed before the Authority that ordered the lifting, with a relevant report being drawn up.” However, the lawyers of the president of PASOK/KINAL, who had then voted for the controversial amendment to 4790/2021, note that it was submitted in March 2021 late, "on the afternoon of the last day of discussion and voting on a draft law in the plenary session of the Parliament" (ed.: on dealing with the pandemic).
In his appeal to the Council of State, Mr. Androulakis, through his lawyers, notes regarding the provision prohibiting information that "due to the non-disclosure, the exercise of judicial protection and the right to report to the authorities is prevented. It is obvious that legal remedies cannot be exercised by a person who is unaware that he was being monitored."
And at another point: “…it has been ruled by the European Court of Human Rights (that) after the end of the measure of lifting the confidentiality of a specific person’s communications, and when the purpose for which this measure was taken is no longer at stake, the issue of subsequent notification to the affected person […] is directly and indisputably linked to his ability to exercise legal remedies and means, in order to defend his rights and legitimate interests against any unlawful, abusive and disproportionate use to the detriment of the user of the measure, which amounts to a violation of his right to protection of his private life. Therefore, if the notification in question is not provided for, or is otherwise prohibited, with the result that the affected person is never informed that the confidentiality of his communications was lifted in the past, it is understandable that the latter is completely deprived of any possibility of seeking effective judicial protection…”.
The reaction of the Supreme Court
Two months after the appeal, the Council of State convened and, due to the great importance of the appeal, set a hearing for its examination on March 10, 2023, the day on which the Parliament will most likely be dissolved to call elections. According to information provided by Inside Story from three sources with knowledge of the process, two issues have arisen:
- In view of the change to the old law and the reinstatement, with 5002/2022, even three years after the monitoring, of the possibility of informing the affected person, judges of the Council of State argue that the prohibition on information no longer exists (ed.: however, it existed when the appeal was filed).
| Article 4, paragraph 7, of the current law 5002/2022 After the expiry of three (3) years from the cessation of the validity of the provision lifting the confidentiality for reasons of national security, the imposition of the restrictive measure is notified to the affected party, provided that the purpose for which it was ordered is not compromised. For the notification of the first paragraph, a relevant request is submitted to the Authority for Ensuring the Privacy of Communications (ADAE), which is transmitted to the EYP and the DAEEB. The lifting is notified following a decision of a three-member body, which decides within a period of sixty (60) days. In the event of the removal by the EYP, the body consists of the prosecutor of par. 3 of article 5 of law 3649/2008, the second prosecutor of par. 2 of article 4 of this and the President of ADAE. In the event of the removal by the DAEEB, the body consists of the prosecutor of par. 3 of article 4 of law 2265/1994, the second prosecutor of par. 2 of article 4 of this and the President of ADAE. The body is chaired by the hierarchically superior or, at the same level, the most senior prosecutor. The body decides by majority, keeping secret summary minutes and recording the opinion of the minority, if any. If the decision is made to inform, the affected person is informed of the imposition of the restrictive measure and its duration. A new request may not be submitted before one (1) year has passed since the submission of the previous one. |
- In any case, the Court does not seem willing to judge whether the law, the one in force and the one in force after December, is compatible with the Constitution. The latter, if valid, raises the question of why the Council of State exists. It is noted that there is no other institution of judicial protection in Greece for the defense of the individual right to the confidentiality of telecommunications at an administrative level.
Who will the citizen turn to?
Clarifications about the new procedure had also been requested from Justice Minister Costas Tsiaras by ADAE President Christos Rammos. In a letter dated January 17, 2023, he requested to be informed about the procedure provided for by the new law regarding the management of requests from citizens who request to be notified whether they have been targeted by links or not.
As Mr. Rammos wrote, "given that the above wording of the law does not provide for the procedural details of the practical implementation of the procedure for the transmission by ADAE of the request of the affected party, we kindly ask you to inform us whether there will be a special secretariat in the above services (EYP and DAEEB) which will be competent to receive the relevant request that will be transmitted to it by ADAE. We would also like you to inform us in general of all the procedural details that will be necessary for the commencement of implementation and implementation of the above procedure." To date, ADAE has not received an official response from the Minister of Justice.
However, the fact that judicial protection is rendered impossible against state arbitrariness is also deduced from the fact that, while according to the new law (5002/2022), the competence of the appeal for information to ADAE is removed and a three-member committee takes over – in which those who order the surveillance– the urgent Ministry of Justice has not clarified who exactly will deny (in writing, of course) the citizens' right to information (if the three-year period has not been completed, as provided for by the law) or who will examine it (if it has been completed). The entire three-member committee? One of its members? ADAE, as before? A secretariat that has not yet been appointed? Unknown, for now. It is as if the state does not want to give the citizen the opportunity to get an answer – which if it is negative, he could then challenge at the Strasbourg Court of Human Rights.
One could say that with the new environment for wiretapping, the state has simply created a zone without judicial control for those who order and implement wiretapping for national security reasons.
Androulakis' other legal "track"
The Council of State and the administrative justice system are one “track” of Mr. Androulakis’ adventures with surveillance. The other is the investigation conducted by criminal justice prosecutors, following his lawsuit for the attempted installation of the Predator software on his phone via text message. However, here too, the judicial investigation does not seem to be able to defend in practice his right to the confidentiality of his communication.
To recall the events, the message sent to Nikos Androulakis read: “Let’s take a serious look at the matter, friend, we have something to win.” The text included a decoy link (https://blogspot.edolio5[.]com/2021/9/1080), which is used to install the Predator. The decoy website, which had been used previously in the case of journalist Thanasis Koukakis, did not entice Androulakis, who did not open the link. The findings of the European Parliament’s report on the infected message, which were also confirmed by the Citizens Lab at the University of Toronto, were delivered to prosecutors investigating the Androulakis case on July 26, 2022.
Six months later, at the end of last month, it was not the prosecutors, but the independent ADAE and the Personal Data Protection Authority (ADDPX) who informed the prosecutors conducting the investigation of a series of findings. Specifically, they identified an SMS sending company, from which 40 such messages had been sent on the day of sending the message to Nikos Androulakis, which had cost, according to market sources, approximately 20 euros. The phone used and the credit card with which the “purchase” of sending the SMS was paid for are not certain to belong to an existing natural person. "I wonder why ADAE managed to find it and not the prosecutor's office - it is only justified if the prosecutors do not have support from pre-investigation officers" (ed.: from the Police) a state official who was involved in the clarification of the 2006 wiretaps and wishes to remain anonymous told Inside Story.
Source of information: insidestory.gr
