On 5 April 2024 it became known that the Plenary of the Council of State unanimously ruled that the provisions of Article 87 of Law No. 4790/2021 (Government Gazette Vol. Α’/31.3.2021) were unconstitutional. Article 87 of Law No. 4790/2021 fully and universally prohibits the Hellenic Authority for Communication Security and Privacy from informing any affected citizen that they had been the subject of surveillance by the National Security Services if it had been ordered for reasons of national security, once the surveillance had been completed. We recall that this provision was passed through an unconstitutional amendment (in that it was both submitted late, and was unrelated to the main subject of the law).
Mr Androulakis had requested (on 7.9.2022) information regarding the prosecutor’s order for the surveillance undertaken against him, and his complete file with the material collected during the surveillance operation. This request was rejected by the ADAE due to the provisions of article 87 of law 4790/2021, which has since been deemed unconstitutional by the Council of State, and following which Mr Andoulakis appealed to the Court to annul this rejection.
According to a report in Kathimerini (5.4.2024), the Supreme Court, in a unanimous decision, ruled that the measure of a universal ban on informing those whose rights are violated by surveillance is excessive, even if it is invoked for reasons of national security, and therefore was deemed invalid and unconstitutional.
According to the Court, the ban constitutes an excessive restriction on the inviolability of communications, which cannot be justified in the context of the rule of law, and is therefore contrary to Article 19(1) of the Constitution, Articles 5(1) and 15(1) of Directive 2002/58, Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union and Article 8 of the ECHR and is as such, invalid.
Therefore, the Court held that the case must be referred back to the ADAE for a new decision, in accordance with Article 5(9) of Law 2225/1994 (as in force before its amendment by the provision of Article 87 of Law 4790/2021, which was held to be invalid), because the newer Law 5002/2022 is not applicable to pending notification requests to the affected party of a measure to lift the confidentiality of communications taken under the previous legislative regime. The newer law, it is held, introduced a new legislative regime which covers the entire procedure for the imposition of the lifting of the confidentiality of communications, from the submission of the request and the approval of the measure to the notification of its lifting.
However, the administration and specifically the National Intelligence Agency under the institutional control of Prime Minister Kyriakos Mitsotakis (Government Gazette: Issue Α’/119/8.7.2019) refuses to comply with the decision and has not submitted the file with the information collected during the surveillance of Mr.Androulakis by EYP during the period from September to December 2021.
This administrative behaviour by the Security Services raises serious issues around the separation of powers and respect for judicial decisions by the administration within the framework of the rule of law, as the government and the administration as a whole must comply with Court of State decisions, as provided for in Article 95 (5) of the Constitution, according to which the administration has an obligation to comply with judicial decisions.
Under the rule of law, the administration must comply with the decisions of the judiciary.
However, and despite the relevant provision in Article 95(5) of the Constitution, the Greek government, and in particular the National Intelligence Service under the institutional authority of the Prime Minister Mr. Kyriakos Mitsotakis has so far refused to comply with the decision of the Council of State which ruled as unconstitutional the complete prohibition against informing affected citizens of surveillance undertaken of them following the completion of the operation, if it had been ordered for reasons of national security.
The Court has referred the case back to the ADAE for a new decision taking their ruling into account.
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