REPORTS
Security and Intelligence Agencies failed to inform ADAE about thousands of wiretaps in a timely manner
On 31 January 2024, the Hellenic Authority for Communication Security and Privacy (ADAE) published its 2022 report, in which it stated that the National Intelligence Service (EYP) under the authority of Prime Minister Kyriakos Mitsotakis and the Special Violent Crime Squad (SVCD), had belatedly submitted 6,705 prosecutorial orders to lift the secrecy of communications of citizens for national security reasons.
More specifically, the report noted that in the year 2022, 717 prosecutorial orders concerning the year 2021 (which had not been sent earlier), were sent by EYP to ADAE, as well as 5,988 prosecutorial orders relating to the year 2021, which were sent by SVCD, and again had not been sent in 2021.
These delays by EYP and SVCD are contrary to the legislative framework which provides in detail for the procedure of the lifting of the secrecy of communications.
In particular, Article 8 para. 2 of Law 5002/2022 (Government Gazette A’ 228/9.12.2022) provides that orders imposing the lifting of confidentiality or rejecting a relevant request shall be delivered without delay in non-editable form, in an electronic encrypted message that meets the security requirements of the confidentiality of the content, to the ADAE.
It follows then that the National Intelligence Agency (EYP) and the Special Violent Crime Squad (SVCD) have an obligation to deliver the provisions on the lifting of the secrecy of communications to the ADAE without delay, which did not happen in this case, since the provisions were sent to the Independent Authority the following year. The implementation of the legislative framework concerning ADAE’s functioning is a necessary condition for the fulfilment of its constitutionally enshrined purpose and the protection of the also constitutionally enshrined right to the confidentiality of communications (Article 19(1a) of the Constitution.
In a related report, Inside Story noted that the addition of these belated orders to the figure previously known for such orders within 2021 (15,475 as per ADAE’s report), the number shoots up to 22,180 prosecutorial provisions for the lifting of communications privacy on individuals within 2021. The corresponding number in 2020 was 13,751, an increase of 62% in one year.
The legislative framework provides for the possibility of lifting the confidentiality of communications of citizens either for reasons of national security (Article 4 of Law 5002/2022) or for the investigation of crimes (Article 6 of Law 5002/2022). The overwhelming majority of the lifting of confidentiality is done for reasons of national security and not for the purpose of detecting crimes, which could indicate abuse of the concept of national security by the state authorities.
Indicatively, ADAE’s annual activity reports show that in 2018 the cases where confidentiality of communications was lifted for national security amounted to 11,113 compared to 3,400 for the purpose of detecting crimes. The corresponding figures were respectively 11,680 and 2,302 in 2019 and 13,751 and 3,190 in 2020.
The state authorities must apply the legal framework for the procedure for lifting the confidentiality of communications, either for reasons of national security or for the investigation of crimes, in order to protect the constitutionally guaranteed right to confidentiality of communications (Article 19(1)(a) of the Constitution).
However, in the case at hand, EYP and SVCD ignored their obligation under Article 8 para. 2 of Law No. 5002/2022, according to which the text of the provisions and of the legislative acts imposing the lifting of secrecy or rejecting a request for it must be communicated to the Hellenic Authority for Communication Security and Privacy (ADAE) without delay.
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