ADAE President for Doiakou’s opinion: It does not produce any commitment at all

The opinion of the Supreme Court prosecutor on the ADAE causes a flagrant violation of the constitutionally emanating independence of the ADAE, emphasizes in a written statement the president of the independence Authority Christos Rammos. At the same time, Mr. Rammos notes that the opinion of Dogiakou, according to which ADAE does not have the authority to inform about surveillance legally it does not produce any commitment at all, given that only the decisions of the courts have such an effect.

The statement of Mr. Rammos follows:

According to the Greek Constitution, as revised in 2001, but also according to the more widely applicable in the states of the European legal culture, to which our country belongs, the institution of independent authorities presupposes the real and not just on paper independence of their operation and is not compatible with the exercise of these powers under guardianship or dictation.

In particular, the express, according to article 19, par. 2, of the Constitution, the constitutional guarantee of the AIA as an independent authority, guaranteeing the absolutely inviolable right to the privacy of communications, has the meaning that no state body can exercise on the due to the Authority, any form of preventive control or prudential supervision (order, guiding interpretative directive, etc.). Consequently, and given that the Constitution illuminates the interpretation of laws and not the other way around, Article 29 par. 2 of Law 4938/2022, interpreted in accordance with Article 19, par. 2, of the Constitution, has the meaning that the A prosecutor of the Supreme Court may not, invoking his general competence to give an opinion on “legal issues of general interest”, formulate an opinion on the interpretation and application of provisions concerning the constitutional powers of the Supreme Court, addressing it with guidelines and even threatening in an unprecedented manner its members with severe criminal penalties, if they exercise their powers in a way different from the one adopted by it. And the ban on issuing such an unconstitutional opinion by the Prosecutor of the Supreme Court applies a fortiori, if, as is the case in this case, the ADAE has already competently taken over relevant cases and is already conducting relevant audits. Therefore, the controversial opinion of Mr. Prosecutor of the Supreme Court, apart from the fact that legally it has not produced any commitment at all (as it is known that only the jurisdictional decisions of the courts produce a commitment in the Greek legal order), it blatantly violates the directly emanating from the Constitution independence of ADAE, which until now had always been respected.

Furthermore, the regulation of par. 7 of article 4 of Law 5002/2022 regarding the special issue of informing the person being monitored for reasons of national security – problematic in any case in terms of its compatibility with the ECHR and the national Constitution – in no way limits the general competences of the ADAE which are enshrined in article 6 §1 of the more specific, executive article 19 §2 of the Constitution, law 3115/2003. These are two laws with non-crossing regulatory fields. Apart from the fact that it does not appear at all that the legislator intended such a limitation, it should not escape attention that the effective exercise of these general powers is linked from the day ADAE was founded, in an inseparable and diverse manner, to the systematic control of providers and all public bodies, in the field of ensuring the confidentiality of communications; control, which does not have as its sole purpose the information provided for in par. 7 of article 4 of Law 5002/2022. Something that Mr. Prosecutor insists on ignoring in his opinion.

An extensive announcement of the Plenary Assembly of the ADAE on these issues will follow within the next few days.

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