REPORTS
Concerns around the compatibility of new legislation on the privacy of communications with the Constitution and the ECHR
On 9 December 2022, the Greek government passed Law No. 5002/2022 (Government Gazette A’ 228/9.12.2022), introducing changes to the procedure for lifting the privacy of communications against the backdrop of the wiretapping scandal and the use of the illegal Predator spy software against targets in Greece. According to the explanatory memorandum accompaning the Justice Ministry’s bill, the new legislative framework aims, among other things, to more effectively protect the confidentiality of communications; to impose a stricter criminal penalty for the use of prohibited Predator-type surveillance software, and to reform the National Intelligence Service (EYP) to better fulfil its mission of protecting national security and combating terrorism and organised crime. Despite the government’s proclaimed goals of the more effective protection of privacy and better functioning of the EYP, influential legal bodies and experts have expressed serious concerns about the compatibility of the new regulations with both the Constitution and the international supra-legislative conventions.
First of all, it should be noted that Article 19 para. 1 of the Constitution guarantees the absolute inviolability of the confidentiality of communications (with the exception of judicial authority which is not bound by secrecy for reasons of national security or for the investigation of particularly serious crimes). Furthermore, Article 8 of the European Convention on Human Rights (ECHR) guarantees respect for private and family life, home and correspondence of the individual, a right also protected by Article 7 of the Charter of Fundamental Rights of the European Union. The need to protect privacy, as the National Commission for Human Rights (NCHR) points out, is also referred to in Article 12 of the UN Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, Article 17 of which provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence.
Against the background of the above-mentioned network of provisions that protect the confidentiality of communications at both the national and the EU level, In Greece it is the Hellenic Authority for Communication Security and Privacy (ADAE) which is charged with ensuring the confidentiality of communications under Article 19 of the Constitution. The ADAE has highlighted a number of problematic provisions in the new legislative framework. Firstly, with the retention of the provision that the lifting of the secrecy of communications is to be carried out on the basis of an order from the prosecutor of the intelligence services, i.e. the prosecutor who operates organically within the NSI and indeed on a long-term basis. The nature of this post, according to the ADAE, results in the prosecutor being integrated into the culture and mentality of the intelligence services, and as such, there may be questions around the independence of the prosecutor vis-à-vis the intelligence service.
The ADAE have suggested that the power to issue the order to lift the confidentiality of a citizen’s communications should be entrusted to a three-member judicial council (and not necessarily prosecutors) and cease to be exercised by a single prosecutorial body. This is because debate and dialogue always leads to better solutions and more well thought out decisions. And this is what the constitutional legislator is seeking to achieve in this case, namely the defence of individual rights on the basis of a proper balance between the need to protect the public interest (national security) on the one hand and the protection of the fundamental right to confidentiality of communications on the other, through the correct application of the constitutionally enshrined principle of proportionality. The ADAE has also pointed out that the new framework still does not demand the inclusion of data such as the reasons for the surveillance and the name of the citizen being monitored in the provisions on the lifting of secrecy for reasons of national security.
That is problematic, since, as the independent authority notes, the justification of all decisions of State bodies, in particular those which are unfavourable to the persons concerned, is an inherent element of the principles of the rule of law and of the constitution of a liberal parliamentary democracy.
Another extremely problematic provision of law. 5002/2022 is that the government, in 2021, and for the first time in 18 years, had removed from the ADAE the power to inform the affected person after the fact that the confidentiality of his/her communications had been lifted for national security reasons. Prior to March 2021, the legislation provided that after the fact, the ADAE could notify the affected person of the lifting of their confidentiality, whether it was done for the investigation of serious crimes or for reasons of national security. The only condition was that the purpose for which the lifting of secrecy was ordered was not compromised by notifying the citizen. However, in March 2021, the Greek government changed the law, prohibiting the informing of citizens that they had been placed under surveillance if it was done for national security reasons. The compatibility of this legislation with the Constitution and the ECHR has also been questioned. The new legislation provides that the competence of informing a citizen about the lifting of his or her privacy for national security reasons is no longer assigned to the ADAE, but to a three-member body consisting of the commander of the EYP, the EYP prosecutor, and the president of the ADAE.
Here, the ADAE notes that under Article 19(2) of the Constitution, the final guarantor of the legality of the whole procedure is the ADAE. Moreover, in accordance with the case-law of the European Court of Human Rights (hereinafter referred to as the ECtHR) (cf. a) Klass and Others v Germany, judgement of 6.9.1978, paragraph 58; b) Weber and Saravia v Germany, Case No 54934/00), paragraph 136; and c) Roman Zakharov v Russia, judgement of 4.12. 2015, para. 288] one of the conditions for finding that Greece’s regulatory regime of secrecy waivers is compatible with Article 8 of the European Convention on Human Rights (hereinafter ECHR) is, according to the Court, also that the relevant legislation must provide that, after the end of the surveillance and provided that the purpose for which the measure was ordered is no longer at stake, the person concerned may be informed by an independent authority with guarantees of independence that such a measure has been taken against him. In this case, the three-member body to which the bill grants the power to make such notifications lacks the guarantees of independence which an independent authority must have.
In its note to the Parliament on the law. 5002/2022, the National Commission for Human Rights (NCHR) stated that, “the proposed regulations introduce critical changes that are in sharp contrast to human rights and implicitly confirm the findings of the latest annual report of the European Union’s Fundamental Rights Agency (FRA) which notes that ‘effective safeguards to ensure that data and technology are used in a manner that complies with human rights are still lacking.’”
A state governed by the rule of law must ensure both in law and in fact that the confidentiality of citizens’ communications is protected.
However, it follows from the above that serious questions arise in this case as to the compatibility of Law No. 5002/2022 on the confidentiality of communications with Article 19 para. 1 & 2 of the Constitution, Article 8 of the ECHR, Article 7 of the Charter of Fundamental Rights of the European Union, as well as Article 12 of the UN Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights, which form a legislative matrix of provisions to guarantee and protect the absolute inviolability of the confidentiality of communications.
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