REPORTS
15 constitutional law professors denounce Supreme Court Prosecutor’s opinion that ADAE has no competence to check surveillance records
On 12 January 2023, 15 professors and lecturers of Constitutional Law issued a joint statement expressing concern about the Prosecutor of the Supreme Court’s opinion that the independent Hellenic Authority for Communication Security and Privacy (ADAE) no longer has the power to perform checks with telecommunications providers to investigate whether somebody has been placed under state surveillance, given that in any case it no longer has the authority by law to inform the citizen that they have been under surveillance by the National Intelligence Service (EYP) if this was ordered for reasons of national security. Mr. Doyakos also made reference to criminal sanctions – even temporary imprisonment – if members of ADAE went ahead with such checks.
Doyakos issued this opinion following checks by ADAE with telecommunications providers which revealed that the National Intelligence Service was monitoring six senior officials including serving ministers and senior armed forces personnel; revelations that it could be argued were in the public interest.
The statement by the constitutional experts, however, highlights a flaw in Doyakos’ reasoning, which is that the supervisory power of the independent authority is conferred on it directly by the Constitution (Article 19(2)) and its scope cannot be limited in any way by the legislature. Empowered by the Constitution to safeguard confidentiality, the ADAE has not only the ability but the obligation to check that state agencies are not abusing their power. These checks, therefore, can be performed on the initiative of the agency or following a specific complaint, and are not done for the purpose of informing the target but rather for the purpose of objective legality.
The statement also noted that the issuance of the opinion was “inappropriate”, as the issue of this right to be informed is pending before the Council of State and, as the Prosecutor’s Office of the Supreme Court has previously ruled, opinions should not be issued for cases on which the competent judicial authorities have already taken action or are about to take action.
Despite the fact that the competence of the ADAE to perform checks on state surveillance activities is directly enshrined in the Constitution (Article 19 para. 2), an opinion from the Prosecutor of the Supreme Court, Isidoros Doyakos,claims otherwise, a claim that, according to these constitutional experts, has no basis.
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