Which Principle comes before?

Philippos K. Spyropoulos

Article 19 S. a) enshrines the confidentiality of communications, b) provides for the adoption of a law establishing, functioning and powers of an independent body to ensure it, and c) allows the judiciary to remove confidentiality for national reasons. security and to check especially serious crimes. A law on ADAE was passed, which determined and then, after various amendments, redefined its formation, activities and duties. The relevant law is neither fixed nor absolute. It is subject to change at the discretion of the legislator, unless, of course, ADAE is deprived of its constitutional responsibility to ensure confidentiality.

The question arises as to what, according to the Constitution, are the relations between the AIAE, on the one hand (providing confidentiality), and the judiciary, on the other hand (which is not bound by the confidentiality guaranteed by the AIAE). . The answer, in my opinion, is that ADAE is ahead of its time in exercising its privacy powers, and the judiciary is lagging behind in its removal. The other view, i.e. that the withdrawal of confidentiality by the judiciary precedes this and is followed by the certification of the AIAE, would result in the judiciary being subject to control by the AIAE or being bound by its decisions, which is inconsistent with the principle of separation of powers in general, i.e., the subordination of the legislative and executive powers to the judiciary, and with the special rule of Article 19 S. that the removal of secrecy for specific reasons can be done by the judiciary.

ADAE is responsible for maintaining confidentiality and the judiciary is responsible for removing it. In terms of time, that is, ADAE precedes.

Does this mean that if the secrecy is removed, ADAE’s audit authority is completely terminated? The answer, in my opinion, is that it still exists, but it is lame: it is limited only to gathering evidence to make it possible for it to report to Parliament. If ADAE determines that the removal of confidentiality was not carried out in accordance with the established procedure, it will also inform the judicial authority about this. Under current law, ADAE has no other authority to “secure” privacy. The constitution does not define anything else, nor does it give ADAE any other powers. He instructs the law to determine its powers. According to the Constitution, ADAE does not have “exclusive” privacy powers (unlike ESR with regard to control of radio and television). And the competence is “defined”, and clearly. It’s not supposed, it’s not supposed. There is no presumption of competence.

* Mr. Philippos K. Spyropoulos is Professor of Constitutional Law, Faculty of Law, University of Athens.

Counterweights and intolerance

Let’s start with the obvious. The courts give a reliable and final interpretation of the Constitution. Not the legislator, the scientific community, the prosecutor of the Supreme Court, an independent body on issues that concern him. The same will happen in a serial connection. The Council of State has the honor and responsibility to determine the content of Article 19 S on the confidentiality of communications and the role of the Independent Authority (IAEA) established by the Constitution to preserve it. This will be the best way to end the conflict, which is in danger of “becoming a thing of the past.” If the criminal courts are also not involved, there is an opposite constitutional interpretation, the matter ends in the Supreme Special Court, a development I avoid.

Otherwise, I disagree with the view that ADAE’s control powers can be completely curtailed, even in the name of national security. Yes, ADAE, like any other independent body, does not have regulatory autonomy, its specific scope of activity is determined by the legislator. Yes, national security is the most important form of privacy and may justify a stricter definition of how the AIA works. And in this case, however, the Independent Power must retain the minimum, critical mass of powers that is necessary for the performance of its institutional function. Its decision-making power cannot be placed on commission. Its authority to carry out or not to carry out confidentiality checks on communications, without which its role as guarantor of Article 19 C would have lost its raison d’être, should not be subject to the approval of any other authority; in which the majority of prosecutors participate. By accepting this reasoning, the intervention of the Prosecutor of the Supreme Court did not contribute to the resolution of the acute issues that have been tormenting us since the summer. In fact, it exceeded the letter of the recent law 5002/2022. The latter governs when and how a person is informed of surveillance, not whether the FSA can conduct ex officio checks.

An independent body must maintain the minimum, critical mass of powers necessary to carry out its institutional function, without delegating its decisive powers to a commission.

The essence, however, lies elsewhere: in a double intolerance towards the institutional function of independent authorities. First, the understandable intolerance of the respective rulers. In a constitutional system that establishes the absolute power of the ruling majority, breakwaters of non-political origin are valuable, but also “annoying.” The coalition overlooks how much it would want a strong ADAE and a courageous president like the excellent Mr. Rammos if the spillover of ties was with others at the helm. Accordingly, the opposition rightly defends ADAE but forgets its annoyance when the courts prevented the disqualification of another body, the ESR, in the case of television licenses (2016). Secondly, intolerance on the part of the judges towards the Independent Authorities, which, perhaps, is expressed in the text of Mr. Dogiakos. The criminal justice system is particularly concerned, and not always unfairly, about how certain bodies (APDPH, ADAE) influence its work. However, it is a great loss if the most important institutional balances of political power – justice and independent authorities – do not cooperate. Let’s hope they find a way to do it.

* Mr. Yorgos Dellis is a professor at the Athens School of Law.