Dogiakos: ADAE does not have the authority to inform about surveillance

By Ioanna Mandrou

It does not have jurisdiction under the current legislation n ADAE (Communications Privacy Assurance Authority) to manage requests from citizens who ask to be informed whether their phones have been monitored for reasons of national security, nor can it be addressed to telephone providers for this.

This is the conclusion of a multi-page opinion issued by the Prosecutor of the Supreme Court, Isidoros Dogiakos, in order to resolve important issues that had arisen with requests for information on surveillance of citizens for reasons of national security, which have also caused an acute political confrontation.
The opinion of the head of the Public Prosecution Authority was prompted by a request from a telephone provider (OTE group), after the visit of an Echelon of the Anti-Corruption Commission to verify the monitoring of the independent MEP Giorgos Kyrtsos and the journalist Tasos Teloglos.

Mr. Dogiakos gives an opinion that ADAE it is no longer competent to handle citizens’ requests for information to monitor them for reasons of national security, since as he underlines, this authority now belongs to a Three-member Organization, which is composed of two prosecutors and the president of the Anti-Corruption Commission, while he describes in detail what the recent law (5002 of 2022) stipulates.

“The notification of the citizen, it is stated in the prosecutor’s opinion, about the taking of the specific measure of lifting the confidentiality against him for reasons of national security has now been assigned exclusively to the Tripartite Body of article 4 para & of law 5002 of 2022, which is presided over by a Prosecutor . No other body is authorized for this purpose nor is it provided for by the Law, the information process is another way. ADAE no longer has authority to control providers in order to respond to an affected individual. Dominant is the role of the Tripartite Body, which is presided over by a Prosecutor and the President of the Anti-Corruption Commission is a member”

The Civil Code and the provisions.

According to Dogiakou’s opinion, ADAE additionally does not need to address telephone providers since, as stated, it has at its disposal all the provisions for lifting confidentiality, whether it is surveillance by the Ministry of Internal Affairs for reasons of national security or surveillance ordered to verify serious crimes.

Refers to the opinion:

“The entire text of the Decrees and Parliaments that impose the removal of secrecy or reject a relevant request, was delivered to the ADAE without delay and in light of the provisions of the previous law 2225 of 1994. The text of said Decrees and Parliaments is also provided with the position in force of law 5002 of 2022 to be delivered again without delay to ADAE, in a non-editable form with an electronic encrypted message that meets the security requirements of the privacy of its content. The Provisions and the Parliaments sent to the ADAE are stored and kept in special electronic files located in a database system, as provided by law”.

Notification of affected person

The part of the opinion that states that only the affected citizen can request to be informed if his phone has been monitored and the legal procedure provided for by a relevant decision of the Tripartite Body (two prosecutors and the president of the Anti-Corruption Commission) has been followed after three years, if the monitoring was done for reasons of national security and on the condition that from the update does not compromise the purpose for which it was made.

With this part of the opinion, according to the Prosecutor of the Supreme Court, other than the affected person is not allowed to request evidence, such as, for example, the leader of a political party or another political actor. Alexis Tsipras’ request to the ADAE for information is already pending.

Penalties for offenders

In Dogiakou’s opinion, it is also made clear that ADAE does not have the authority to manage requests for citizen surveillance, even if these were made in the past, and in any case before the recent government law that assigned a Tripartite Body the authority to manage citizens’ requests, as the recent law has retroactive effect.

Also of interest is the opinion in the part that refers to a series of criminal provisions of special laws and of the Criminal Code that carry penalties of up to ten years in prison for those who violate the procedure provided for by the law, not excluding the Human Rights Act. It is emphasized in the opinion on penalties:

“Due to the particularly sensitive nature of the subject of the declassification of communications, the criminal penalties provided for by the existing legal regime sanctions in the event of a violation of the relevant provisions both on the part of a member of ADAE and on the part of other persons, which are clearly mentioned in the Law, it is particularly seriouswith a prescribed penalty, under certain conditions, even temporary imprisonment».

ADAE does not have a “blank cheque”.

The opinion states in detail the powers of the Authority as derived from its founding law of 2003 and emphasizes that the Authority was established by a constitutional provision but the constitution itself states that its powers and operation are determined not by itself but by the public law.

“It is obvious, it is underlined, among other things, that the legislator does not recognize ADAE as a “blank cheque”.

And it is noted: “In particular, the Constitution does not grant the ADAE its auditing authority directly. The Constitution provides for its purpose and mission which is to ensure the privacy of communications. The way of fulfilling and implementing its mission, however, is provided by the Law, as well as the conditions and the procedure for lifting confidentiality. Although the Constitution establishes the specific Authority (ADAE), it leaves to the common legislator the scope and manner of exercising its powers, even though it is independent, it is not normatively autonomous, nor legibus solutus, but acts in accordance with the Constitution and the laws”.

Finally, the opinion is justified, why the Prosecutor of the Supreme Court himself proceeds to issue it, speaking of matters of “general interest”.

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