The declassification bill, albeit belatedly, under the pressure of a toxic public atmosphere, is trying to improve the legislative framework and includes some positive elements, especially in relation to the administration of the YMZ and the organization of cybersecurity. But it suffers from a genetic weakness: it does not take as guidance the conformity with the findings of the relevant jurisprudence of the European Court of Human Rights (ECtHR) and tries to coerce the legislator into constitutional guarantees of privacy. communications. Indeed, due to the urgent need to investigate pending cases, the proposed measures can be considered ironic. I focus on the basics.

According to the definitions of Article 3 of the plan, “National security considerations are reasons related to the protection of the essential functions of the state and the fundamental interests of society and include the prevention and suppression of activities that can damage the constitutional, political, economic or social structures of the country, such as, in particular, reasons related to national defense, foreign policy, energy security, cyber security and protection against other hybrid threats, protection of the currency and the national economy, protection from a humanitarian crisis, public health and environmental protection.” All these. Everyone can be tracked for everything.

However, the concept of reasons for national security is constitutional and cannot be expanded, even excessively, by the legislator. “National security considerations” are mentioned in the Constitution in two provisions. In article 19, paragraph 1 sec. b on the abolition of confidentiality of communications and in article 5 A on restrictions on the right to information. According to Article 5 A par. 1 S.: “Everyone has the right to information, as defined by law. Restrictions on this right may only be established by law if they are absolutely necessary and justified for reasons of national security, the fight against crime, or the protection of the rights and interests of third parties.” This wording, which expressly refers to the obligation to argue and respect the principle of proportionality, in the context of a systematic interpretation of the Constitution, should be considered as applicable also to Article 19, paragraph 1. In any case, Article 19, paragraph 1 is interpreted in the light of the rules of interpretation of Article 25 C. Ara with the obligatory observance of the principle of proportionality.

The Constitution defines internal security as “public security” (Article 11 Part 2) or as “public order” (Article 13 Part 2 and 18 Part 3). protection of the “territorial integrity” of the country (referred to in Art. 14 par. 3 par. d as a restriction on the freedom of the press) or “protection” of the country (which is cited as the basis for repealing the prohibition of forced labor in Article 22 par. 4 par. b) . In any case, national security is associated with legitimate benefits, which are standardized in the Criminal Code and the violation of which constitutes a crime. National security is criminalized primarily as a legal benefit of the country’s international status, which includes certain legal benefits of territorial integrity, international peace and the country’s defense capability, as well as the protection of state secrets (Articles 138-152 of the Civil Code). well accepted practice of the ECtHR that the concept of national security also includes the defense of a democratic state. Thus, in fact, the Criminal Code also formalizes the protection of the state (articles 134–137 of the Criminal Code).

Therefore, the removal of a secret for reasons of national security is different from the removal of a secret for the investigation of a particularly serious crime, but is associated with the possibility of committing such a crime or even preparatory actions. Without this correlation, the introduction of measures to limit privacy, which form the basis of personal privacy, cannot be justified. All but literally national security, serious objects that the bill wants to protect, are subject to the possibility of declassification for the investigation of a particularly serious crime. Therefore, there is no need to disassemble the concept of national security and the guarantee content of Article 19 S.

However, according to the jurisprudence of the ECtHR, the abolition of confidentiality requires “pressing necessity” in the context of a democratic society, and the collection of “vital information” must be sought, otherwise the criteria of the principle of proportionality will not be met. According to the jurisprudence of the ECtHR, monitoring of telecommunications can be justified: if it is provided for by law, then it must be provided for by the national Constitution and national legislation that is not unconstitutional and incompatible with the European Convention on Human Rights (ECHR). If it serves one or more of the purposes listed in Article 8 § 2 of the ECHR, including national security as we have defined it. If it is necessary in a democratic society, to achieve the intended goal. Criteria are developed and known. There must be an element of the quality of law, not just legality, but the internal quality of the law, necessity, adequacy, effectiveness, guarantees against arbitrariness and partly predictability (the ability of the victim to foresee that he can be put under covert surveillance). However, there must be an effective remedy against the relevant decisions, as required by Article 13 ECHR. Another important indicator is the percentage of refusals of requests from the authorities to remove confidentiality. The bill does not contain provisions covering all the requirements of Strasbourg jurisprudence.

The draft does not give a direct answer to the fundamental question for the interpretation of Article 19, paragraph 1 S.: what is the legal nature of the prosecutor’s order, provided for by customary law as an act of the judiciary required by the Constitution? who have been declassified for reasons of national security? Is it an investigative action in the field of criminal law or an administrative action? The constitution relating to the judiciary, and the law assigning to the prosecutor’s office, i.e. bodies of criminal justice, the issuance of a specific judicial act, interprets this action as an investigative action, as an action that moves in the field of criminal law. Even if we temporarily accept the version that the prosecutor’s order is functionally an administrative act, it is still criminal according to the so-called Engel criteria of the ECtHR case law. The bill in Article 5(1) recognizes the criminal nature of prosecutorial orders to declassify on grounds of national security, but does not conclude on the legal consequences of such recognition. A key implication has to do with politicians.

The concept of national security considerations is constitutional and cannot even be over-expanded by the legislator.

The draft law recognizes that special enhanced guarantees should apply to politicians. But he constructs the concept of his own invention of a political person, subject to the special guarantee of the prior authorization of the Speaker of Parliament (PtB). This may sound reasonable to a non-lawyer, although in practice the PT finds itself in a very difficult position as it has to approve possible surveillance of the President of the Republic (PT), the Prime Minister or the leader of the party. But in accordance with the current Constitution, the PT does not and cannot have such powers. Firstly, the draft law perceives the PTB essentially as a sole body that replaces the collegiate and multi-party parliament, and formally as an administrative body that interacts when issuing a judicial act. However, the PR exercises administrative powers only in relation to the autonomy of the Parliament and in accordance with its Rules of Procedure, and these acts are subject to judicial review (Article 65 para. 6 S). He, of course, has no power over the PTD, the mayors and governors of the regions.

This unfortunate hybrid of the draft law is due to the contradiction of recognizing the need for special guarantees for political persons, but looking for them improvisationally outside the Constitution. Within the framework of the Constitution, only the provisions of articles 49, 61, 62 and 86 are relevant provisions. Constitutional institutions envisaged include parliamentary irresponsibility, including parliamentary secrecy, parliamentary immunity, irresponsibility of the high lord, and criminal liability of ministers.

The draft law equates mayors and governors of regions with PD, but says nothing about two particularly sensitive categories of persons, the secret surveillance of which was the subject of a thorough check by the ECtHR, namely lawyers and journalists.

Finally, the bill takes a step towards the possibility of informing the victim after the fact that his reports are confidential for reasons of national security without explicitly doing something incriminating to trigger criminal prosecution. However, this option is granted after three years, even if there is no reason for such a long time period. The ruling is clearly disproportionate and is a political message to unjustified victims seeking offensive explanations. The information is subject to the decision of a three-person committee chaired by the EYP Attorney and members of the EYP Governor and ADAE President, without any significant possibility of judicial review as all relevant evidence will be long since destroyed. back. After all, as the bill provides, “the body makes a decision by a majority of votes, without fixing any minority in the decision and without keeping a protocol. If a decision is made to inform, the person accused of recusal is only informed about the imposition of a measure of restraint and its duration. It is not allowed to submit a new request until one (1) year has elapsed from the date of submission of the previous one.

But the most important thing is that the bill does not seem to include either in the legislative will, or even in its wording, the direct and categorical provision of paragraph 1 and the powers of an independent body that ensures the confidentiality of paragraph 1.” That body is the IAEA, which is not a clumsy registrar of thousands of anonymous and unsubstantiated prosecutorial orders to declassify communications on national security grounds, but a constitutionally empowered guarantor of confidentiality.

Liberal democracy in our country needs a radical change in the social climate, and this requires political transcendence and legal clarity. Positive steps are welcome. However, a different institutional ethos of political power is required, based not on evasions and hybrids, but on voluntary compliance with the Constitution and the ECHR.

* Mr. Evangelos Venizelos is Professor of Constitutional Law at the Athens School of Law, former Deputy Prime Minister, former President of PASOK.