Scholarly analysis of the Judicial Investigation into the Wiretapping Scandal

In announcing the results of the judicial investigation into the wiretapping scandal, Supreme Court Prosecutor Georgia Adeilini expressed the view that, ‘in the spirit of the Court of Justice of the European Union’, the law does not require specific justification be given for the prosecutor to lift the privacy of communications of an individual for reasons of national security. However, influential legal scholars have expressed well-founded scholarly opinions that essentially refute this. The case law of the Court of Justice of the European Union in fact can be seen to establish precedence that there should be a specific and detailed justification in the prosecutor’s authorisation for the lifting of secrecy of an individual’s communications, as a necessary legal guarantee and requirement of the rule of law. 

Mr. Rammos elaborated, explaining that a lack of oversight can lead to arbitrariness, which is unacceptable under the rule of law and the Greek Constitution, as well as the Charter of Fundamental Rights and the European Convention on Human Rights (ECHR), as interpreted by the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). Mr Rammos maintained that it must be possible to verify, on the basis of the elements and criteria laid down by the Constitution and the laws associated with it, the reason why the measure to lift the secrecy of communications was imposed, even in cases where it was imposed for reasons of national security. In order to ascertain whether the public prosecutor has not in fact acted arbitrarily or in breach of the general constitutional rule of the principle of proportionality, the tried and tested legal and political tool of reasoning is also necessary in this case, he explains, since reasoning is the tool through which the correct observance of the constitutional rule of the principle of proportionality is checked and the accountability necessary in any democracy is achieved. State institutions, both administrative and judicial, are therefore obliged to give reasons for every administrative act, especially when restrictions are imposed on the individual rights of citizens. Finally, he notes, this obligation derives both from the general concept of the rule of law and the principle of legality and from the principle of respect for human dignity (Article 2(1) of the Constitution), which imposes on state institutions the obligation to ensure, for the benefit of the governed, the faithful application of the laws, the protection of the goods legally acquired by them, as well as the respect and promotion by all appropriate means of the trust of the governed in the law.

The ADAE President adds that the necessary justification for lifting the secrecy of communications of a citizen, even for reasons of national security, must be “spelled out”, as he considers it inconceivable that the ‘justification’ of such an invasive measure against a fundamental freedom, should be a decision based on reasoning only in the mind of the prosecutor at the time of signing the relevant order. A form of reasoning should have to be captured somewhere. This would certainly not be made public and would only be accessible to those mandated by the Constitution to be responsible for monitoring compliance with the protection of the right to the confidentiality of communications, (such as the independent oversight authority)  whose officials are themselves bound by law by the same duty of confidentiality as the officials of the security services.

It should be noted that Law 5002/2022 (Government Gazette Α’ 228/9.12.2022), which regulates the legislative framework for the procedure for the lifting of the confidentiality of communications for reasons of national security or for the investigation of particularly serious crimes, does not require the above-mentioned reasoning to be included in the body of the judicial act. In particular, Article 4(4) provides that the order imposing the lifting of the secrecy of communications for reasons of national security should contain: a) the body making the request; b) the purpose; c) the means of communication to which the lifting is imposed; d) the object of the lifting, i.e. the external elements of the communication and/or its content; e) the territorial scope of application, if required for the purposes of the lifting, and the absolutely necessary duration of the lifting; and f) the date of the adoption of the order.

The ADAE President goes on to note that this ‘reasoning’, if not contained in the body of the act, as prescribed by the provisions of Article 4(4), must be derived from the documents contained in the file accompanying the application which, according to the provisions of Article 4(1,2), shall be sent by the competent security directorate to the prosecutor.

Whilst Supreme Court prosecutor Georgia Adeilini maintains that the law “does not require the provision of specific justification for the lifting of secrecy for reasons of national security in “the spirit of the Court of Justice of the European Union”. Rammos, however, presents the full reasoning of the CJEU judgement, which in fact provided that the specific reasons on the basis of which the competent court held that the requirements of the law were satisfied, in the light of the factual and legal circumstances of the case, can be readily and accurately deduced from a combined reading of the decision and the application for authorisation and provided that, after the authorisation has been granted, the person against whom the use of special information-gathering techniques was authorised is given access to the original application’. 

Based on the above, and in accordance with the current legal regime, in order to ensure that the measure of lifting the secrecy of communications has been taken in accordance with the procedure and the conditions provided for in the Constitution and the law, it is necessary, according to Mr Rammos, in accordance with the provisions of article 6 (1(a)(e)(f)) (Law 3115/2003 – Government Gazette A’ 47/27.2.2003), that the Public Prosecutor’s Office should specify the reasoning for the prosecutorial provisions, that is to say, the establishment by the prosecutor of the existence and the relevant facts that led to the issuance of the prosecutorial order and that constitute the conditions for its issuance.

With regard to the aforementioned legislative framework, it should be noted that Article 19 of the Constitution guarantees the confidentiality of communications as “absolutely inviolable” and the Hellenic Authority for Communication Security and Privacy (ADAE) as the guarantor of the safeguarding of the confidentiality of communications (Article 19 (1) “Secrecy of letters and all other forms of free correspondence or communication shall be absolutely inviolable. The guaranties under which the judicial authority shall not be bound by this secrecy for reasons of national security or for the purpose of investigating especially serious crimes, shall be specified by law.”, Article 19 (2) “ Matters relating to the constitution, the operation and the functions of the independent authority ensuring the secrecy of paragraph 1 shall be specified by law.”). 

In the context of these constitutional provisions, the provisions of Article 6 para. 1 (a), (e) and (f) of Law No. 3115/2003, which enshrines the powers of the ADAE, provide that the independent authority, in the fulfilment of its mission, may carry out, on its own initiative or due to a complaint, regular and extraordinary inspections, on the premises, technical equipment, archives, data banks and documents of the National Intelligence Service (EYP), other public service organisations, enterprises of the wider public sector, as well as private enterprises engaged in postal, telecommunications or other services related to communications. Such audits shall be carried out by a member or members of the ADAE.

Mr Rammos is not the only influential person who has expressed views that contradict the content of Ms Adeilini’s statement. Indeed, on July 31, 2024, the Emeritus Professor of Constitutional Law at the Law School of the University of Athens, Mr. Nikos Alivisatos, stated in an article in Kathimerini: “When among the people being surveilled – and for two years, too – we see the name of a top judicial official (who actually sits in the office beside that of Zisis) and when the prime minister himself has stated that Androulakis should never have been put under surveillance, we must ask why Adeilini appears so ready to adopt the opinion that there was absolutely nothing legally amiss with the phone taps that were ordered. All the more so when she erroneously invokes a decision of the European Court of Justice on the same matter. Responding to a pretrial question by a Bulgarian criminal court, the EU court in Luxembourg did indeed rule that authorizations to lift confidentiality do not need to be justified. It clarified, however, that this is only on the condition that there has been a “reasoned request submitted by the appropriate authorities” (to which the interested party may also be privy) and from which “the reasons for granting that authorization can be reliably ascertained” (C-349/21).”

The professor at the Law School of the University of Athens, Antonis Karampatzos, also referred to the same issue in an article in NEA of August 1, 2024, saying that Ms Adeilini’s Office is the first to state that the prosecutor’s office was legally justified in the first instance, despite the fact that in May 2023 the Prime Minister and political head of the EYP himself categorically stated that, ‘Mr Androulakis is not a danger to national security and should never have been put under surveillance’. The reference by the Prosecutor of the Court of Appeal, in her attempt to support her position, to the case law of the Court of Justice of the EU (CJEU, C-349/21) is inaccurate: as colleagues N. Alivizatos and N. Alevizatos have already rightly pointed out. The CJEU has already rightly held that the provisions for lifting confidentiality need not be justified, provided, however, that a “reasoned and detailed request from the competent authority” has been submitted beforehand, from which “the reasons for the monitoring can be readily deduced” and to which the person concerned may subsequently have access.

The position of the prosecutor of the Supreme Court that the evidence found by the judicial investigation ‘irrefutably concludes’ that there was no involvement of any state agency with the spy software Predator has also been challenged, questioning the basis of such certainty in the lack of any explanation for the overlap in victims other than coincidence.