According to the Athens Bar Association: – The District Attorney did not have the authority to issue an opinion, the Board of Directors decided by a majority (16-8). -The government’s recent law to remove privacy is unconstitutional. -No state authority can prevent the exercise of the responsibilities of the AIAEA -Unconstitutional law cannot be cured by prosecutorial opinions.
By Ioanna Mandrou
“The unconstitutional laws are not implemented and cannot be cured by prosecutorial opinions” is emphasized in a decision of the Board of Directors of the Bar Association, which met and decided on the content of the opinion of the Prosecutor of the Supreme Court Isidoros Dogiakos.
The decision was taken by a majority (16 votes in favor of the opinion expressing absolute and categorical opposition to the opinion and 8 votes to the contrary), based on a series of arguments.
According to the decision of the DSA, the government’s recent law (5002 of 2022) on declassification for reasons of national security, is unconstitutional and moves beyond the limits of the constitution that protects the privacy of communications.
In another part of the decision, the ability of the Prosecutor of the Supreme Court to issue an opinion at the request of a private person, as in this case, at the request of a telecommunications provider, and for the additional reason that according to the decision of the DSA the provider is also controlled.
Also, the DSA denies the legality and constitutionality of the provisions of the government’s recent law on privacy, in the part that concerns the transfer of the responsibility for informing citizens about surveillance issues from the Anti-Corruption Commission to a Tripartite Organization composed of two prosecutors and the President of ADAE.
To this end, the DSA states that “no state authority can prevent the exercise of the responsibilities of the ADAE”.
The decision of the DSA in detail
1. The Board of Directors of the DSA expresses its absolute and categorical opposition to both the issuance and the content of No. 1/2023 of the Opinion of the Prosecutor of the Supreme Court.
2. Privacy of communications, as guaranteed in articles 19 of the Constitution and 8 of the ECHR, is a fundamental human right, directly linked to the functioning of the democratic state. That is why, unlike other individual rights, the Constitution enshrines it as “absolutely inviolable” and does not refer to limitations or exceptions, but only to “guarantees” for its removal by the “judicial authority” and this only “for reasons of national security’ or ‘to investigate particularly serious crimes’.
For this reason, its protection is the highest obligation of the state and binds all state functions. ./.
3. The legal body, during the parliamentary procedure for the adoption of the neopagus Law 5002/2022, had pointed out that the relevant legislative initiative does not meet the requirements of the Constitution and the ECHR, nor the reasonable expectations of democratic citizens, as it aimed almost exclusively at communication management of the declassification case, without meaningfully upgrading the legal protection provided. It is characteristic that: a) conditional notification of the affected citizen after three years does not meet the guarantees of the Constitution and the ECHR, especially if it is taken into account that the destruction of the relevant material will have preceded (usually in six months after the termination of the of the relevant prosecutorial order); b) it is possible in practice to lift the secrecy indefinitely by invoking reasons of national security; c) instead of strengthening the supervisory and auditing powers of the National Security Agency, grounds for questioning them are created.
4. The explicit constitutional recognition of the ADAE as an independent authority (article 19 par. 2 of the Constitution) with the task of ensuring the “absolutely inviolable” right to privacy of communications, has as a self-evident regulatory consequence, according to an interpretation of the provisions of the law in accordance with the Constitution – and not according to the interpretation of the Constitution in accordance with the law, as the Supreme Court Prosecutor openly attempted – that: a) no state authority can obstruct the ADAE in the exercise of its powers based on the provisions of the executive Constitution Law 3115/2003, which also include the Authority’s supervisory authority over telecommunications providers; b) the common legislator (such as the legislator of Law 5002/2022) cannot prohibit the Authority from exercising its constitutional authority, nor may remove essential powers already granted to it, c) no body, not even the judiciary, is authorized to enter into the work of ADAE and to replace it in the exercise of its powers; d) no state body can exercise any form of preventive control or prudential supervision over it, as the Authority is subject exclusively to judicial control by the competent authority, according to the procedural rules, judicial formation.
5. According to article 29 of Law 4938/2022, the advisory competence of the Prosecutor of the Supreme Court is subject to two limitations: a) the relevant legal issues “do not [πρέπει να] have been brought before the courts’ and b) the issue must be ‘more general’, thus by definition not concerned with individual cases. After all, until today, it was always accepted that the opinion competence of the Prosecutor of the Supreme Court consisted in the formulation of his opinion in general ./. and abstractly with regard to the controversial meaning of provisions of laws on issues of general interest and in any case not on cases on which the competent judicial and prosecutorial authorities have been charged or on the issues that are going to concern the courts or the judicial councils in order to avoid influencing their judgment in view of of the prescribed remedies and aids” [βλ. Γνωμοδοτήσεις Εισαγγελέα ΑΠ 7/2022 (Αρ. Χριστόπουλος), 5/2022 (Αν . Δημητριάδου), 3/2022 (Δ. Παπαγεωργίου), 22/2021 (Αν. Δημητριάδου), 20/2021 (Λ. Σοφουλάκης), 15/2021 (Δ. Παπαδημητρίου ), 12/2020 (Λ. Σοφουλάκης ), 10/2018 (Δ. Παπαδημητρίου), 4/2014 (Χ. Βουρλιώτης)].
It has also been a constant position until today that the Prosecutor of the Supreme Court does not give an opinion on questions raised by private individuals, namely litigants or potential litigants or in any way involved in related legal proceedings [βλ. ενδεικτικά Γνωμοδότηση Εισαγγελέα ΑΠ 3/2022 ( Δ. Παπαδημητρίου) για εκκρεμή ποινική υπόθεση και 22/2021 (Αν. Δημητριάδου) για υπόθεση δεκτική ακυρωτικού ελέγχου ενώπιον του ΣτΕ].
6. The Prosecutor of the Supreme Court with No. 1/2023 his opinion: a) Interferes impermissibly (in violation of articles 19 and 101A of the Comp.) in the exercise of the constitutionally and legislatively guaranteed audit competence of AADE as he opines that the Authority is not only unable to rule on an individual request for information of the affected person before the three years have passed since the imposition of the removal, but also to carry out an audit with the aim of ascertaining violations of the legislation that make the imposition of administrative sanctions mandatory, informing the Parliament, but also notifying the competent prosecutorial authorities. b) Menacingly points out to the members of ADAE the prescribed criminal sanctions. c) Takes a position, in violation of Law 4938/2022, on individual cases, as complaints by specific persons for violation of their rights are pending before the Court of Justice and the AADE, at a time when the expert himself wrongly accepts that the provisions of Law 5022/2022 have retroactive effect and also cover the lifting of confidentiality before 9.12.2022; d) It is placed at the request of a private individual, namely an audited telecommunications provider, who may become a party in the future on the occasion of the specific audit; e) It violates the constitutionally guaranteed principle of judicial protection of citizens (Comp. 20 par. 1) and judicial independence (Comp. 87), which also applies to prosecutors in the exercise of their duties (article 28 par. 4 law 4938 /2022), as lawsuits have been filed by those affected by the removal of the privacy of persons, which are at the stage of criminal preliminary proceedings, while it is possible to create a dispute, submitted to the administrative courts, between ADAE and the telecommunications provider, should the Authority impose sanctions on him.
7. The Prosecutor of the Supreme Court has a legal and moral obligation to contribute from his position to the full and speedy investigation of all complaints that have been submitted for illegal connections of citizens and for the operation of illegal spy software.
8. Unconstitutional laws are unenforceable and cannot be cured by prosecutorial opinions.
The DSA, as a guardian of democratic ideals and a defender of individual and social rights and freedoms, will resolutely resist any attempt to undermine them.
In matters of democracy and the rule of law, there is no room for discounts and offsets, but there is an obligation to strictly observe the Constitution and the European legal order.
Democracy in this place has deep roots and the lawyers have set themselves to serve it eternally and unwaveringly.
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I have worked as a journalist for over 10 years, and my work has been featured on many different news websites. I am also an author, and my work has been published in several books. I specialize in opinion writing, and I often write about current events and controversial topics. I am a very well-rounded writer, and I have a lot of experience in different areas of journalism. I am a very hard worker, and I am always willing to put in the extra effort to get the job done.
