REPORTS
For 2 years Ministers have failed to issue a Joint Ministerial Decision to enable ADAE to create digital records of surveillance activities
On December 29, 2022, Reporters United reported that despite the passage of 20 months, Digital Governance Minister Kyriakos Pierrakakis and Justice Minister Kostas Tsiaras have still not issued a Joint Ministerial Decision which would enable the independent authority for communications privacy to create and use its own digitised and encrypted archive to determine who had been placed under surveillance, without having to depend on telecommunications providers to carry out checks.
On 16 March 2021, the government tabled an amendment to a bill from the Ministry of Justice, which provided for a Joint Ministerial Decision to be issued by the two ministers. This would provide for the creation of a secure digital archive as it would oblige the national intelligence service (EYP) and the counter terrorism services to digitally lodge the prosecutors orders on the basis of which surveillance is carried out with the independent authority as well as with telecommunications providers.
Despite the adoption of the amendment and its incorporation into Law No. 4786/2021 (Government Gazette 43 A’/23.03.2021), the Decision was never issued. The result is that to date, orders to lift the privacy of communications of any individual are processed in paper form, which reinforces opacity and negates the supervision of the independent authority over the secret services.
The independent authority’s 2021 report makes reference to the challenges of dealing with the paper form of the provisions, given that the authority itself did not have the resources to digitise these records. Therefore a key goal for 2022 in the report was to digitise this archive. Furthermore, the paper form of these records tends to mention only the telephone number being monitored, without including any names.
This makes it practically impossible for the ADAE to check who is being monitored and who is not. When, according to a report by Reporters United, journalist Thanasis Koukakis lodged a request on August 12, 2020 with the independent authority to find out if he had been placed under surveillance, the ADAE would have had to search a huge archive of thousands of paper records to attempt to find one that included Koukakis’ number, which was impossible. So since the Authority is unable to check its own records, it is obliged to approach each citizen’s telecommunications provider (Cosmote, Vodafone, Wind), to find out if the privacy of their communications has been lifted. A state body is in this way dependent on private businesses to perform its role.
The implementation of this law by Ministers Pierrakakis – Tsiaras and the ability to digitally transmit and archive these instructions to declassify the communications privacy of any individuals to be placed under surveillance would ensure the secure and immediate transmission of the declassification provisions to the independent authority. This in turn would allow the authority to create a digital archive so that it would know at any one time who has been placed under surveillance, when, and for what reason, all of which are a prerequisite for the fulfilment of its constitutional purpose.
The failure to implement these provisions therefore makes it more difficult for the independent authority to exercise its powers and to protect the confidentiality of communications, which is guaranteed by the Constitution (Article 19(1)).
Despite the constitutional guarantee of the confidentiality of communications (Article 19(1)), the Greek government has never issued – as it was legally required to do – the Joint Ministerial Decision to implement the digital transmission of declassification of communications privacy orders to the independent authority ADAE, making it substantially more difficult for the independent authority to exercise its powers, which, through institutional supervision of the state intelligence and counter-terrorism services, are aimed at protecting the confidentiality of communications.
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