An amendment (826/145/31-3-2021) was submitted by the Ministry of Justice seeking changes to law 2225/1994 which deals with the Hellenic Authority for Communication Security and Privacy (ADAE). It was passed as Article 87 of 4790/2021, a law unconnected in subject matter, primarily concerning urgent regulations for the protection of public health from the continuing consequences of the coronavirus COVID-19. The amendment was submitted during the actual course of a parliamentary session, in contravention of the rules that amendments must be submitted at least three days before the vote is due to take place. (Page 71 of the minutes of the Parliament records, “this is the way, then, that we are called upon to legislate…on a series of last minute provisions and amendments…which were distributed ten minutes ago.”)
The amendment makes changes to Article 5 of Law 2225/1994, which regulates the specific issues of the procedure for removing the confidentiality of communications. The purpose of the amendment is to ensure transparency in the process of the removal of confidentiality, to deal with the management of the consequences of this removal, and to provide compensatory measures (see pages 4 and 6 of the reports accompanying the amendment). In the parliamentary session, the Minister of Justice, presenting the content of the amendment stated “I want to say a few words about the amendment proposed by the Ministry of Justice. This amendment addresses the issue of managing the consequences of lifting the confidentiality of communications. In particular, in cases where the measure of removal of confidentiality is imposed for the investigation of serious crimes, the possibility of notifying the subject is also provided, but the basic condition is not to jeopardize the purpose for which it was ordered, according to the opinion of the Prosecutor of the Supreme Court, ” (p. 75 of the minutes of the Parliament). No reference is made, however, to the fact that the changes brought about by this provision remove the possibility that the ADAE may notify the person whose communications are being monitored, even after the fact, if it had been ordered for reasons of national security.
Apart from the fact that in this case the rules of good legislation provided by the Constitution, Articles 87, 88 and 101 of the Rules of Procedure of the Parliament and the Manual of the Legislative Drafting Methodology were not followed, the content of the amendment also raises concerns.
The complete removal of any possibility of informing the individual that the confidentiality of his communications has been lifted, in cases where this had taken place for reasons of national security (even, that is, when there is no risk to the effectiveness of the measure and the removal has expired) may contradict Article 19 paragraph 1 of the Constitution, Article 8 of the European Convention on Human Rights (ECHR) and Article 7 of the Charter of Fundamental Rights of the European Union. The President of the ADAE along with two ADAE colleagues examine in particular how this infringes the ECHR’s guarantees of confidentiality of communications in detail in this article at constitutionalism.gr, which it must be noted contains only their personal opinions and does not reflect the views of the ADAE, which in any case was never approached by the government for an opinion on the law before it was passed. They also note that some other countries have been condemned by the European Court of Human Rights for the adoption of similar legislation (for more information see this article from Reporters United).
Finally, it is worth mentioning that paragraph 2 of the amendment applies retroactively. Furthermore, its existence as a stand alone amendment in an unrelated piece of legislation, rather than an amendment which amends previously existing legislation, contributes to the problem of legislative pluralism and bad legislative practice in general.
Both the Constitution and the Rules of Procedure of the Parliament as well as the Manual of Legislative Drafting Methodology prohibit the submission of overdue and irrelevant amendments in order to adhere to the principles of transparency and accountability. Furthermore, in a state governed by the rule of law, the protection of citizens’ rights is an obligation of the state, and the compatibility of the provisions of the law with constitutional and European or international provisions should be considered.
The removal of even the possibility that the citizen may be informed that the confidentiality of their communications has been lifted, even retrospectively, where this has taken place for reasons of national security, deprives the citizen of the opportunity for effective legal protection and therefore undermines the essence of his right to the protection of his private and family life. Furthermore, this provision was voted into law without any prior consultation with the relevant independent authority (ADAE).
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