The protection of the confidentiality of communication in an independent constitutional position, in addition to its semiotic value, testifies to the special weight attached to this right by the post-political constitutional legislator. In other words, the protection of confidentiality of communications is not built into the right to privacy as an integral part of it and is not considered simply as an aspect of personal data. However, from a comparative perspective, it is easy to see that discrete entitlements are part of the Greek constitutional identity. And, of course, the guarantee of confidentiality of communication can only be read under the heat and euphoria of the post-political period. The return to democratic normality after a long period of state sabotage largely explains the declarative tone and universal wording of the provision that enshrines the right “to the secrecy of letters and freedom of reply or communication” as absolutely inviolable. The fact that no rights other than the protection of life and the prohibition of torture enjoy absolute protection is no mere coincidence.

The traumatic urgency of the past few days and the intensity with which the public debate is going on, in the context of the complaint filed by PASOK-KINAL President N. Androulakis about the violation of the confidentiality of his communications, is highlighted in the strongest possible way. path of unrecognizable shortcomings with respect to the guaranteed functioning of institutions. Almost everything on the subject has been discussed, and this is one of the rare occasions when the scientific community agrees with the danger of deviations recorded in the conduct of a case. Therefore, the next few reflections will only attempt to rethink the possibility of using the guarantee mechanisms provided by the Constitution as institutional balances whenever a restriction of the right is imposed for reasons of national security.

While no one—not even the jurisprudence of the European Court of Human Rights—disputes the need for a sovereign state to retain a broad margin of action on matters that concern its very existence—foreign policy, national security, counterintelligence, etc.—the scope of an unexamined frame should not cause the field to be sealed. The complete autonomy of such fields from real and effective control by other or other bodies, with the guarantee of institutional balances, would obviously act as a constant source of risk to democracy.

In the Androulakis case, even the most unsuspecting are now indebted to the painful certainty that the framework in which our national security declassification process was structured and carried out in our legal order does not conform to the proclamations of the Constitution. The indefinite period of removal, the complete absence of grounds, the possibility of taking a measure without mentioning the name of an individual – only a telephone number – combined with the recent statutory prohibition on disclosure – under certain conditions – of the measure to the defendant, thus they form an environment in which the state prerogative outrageously supersedes the basic principle of the liberal rule of law of mutual checks (checks and balances).

Therefore, it is necessary to redefine and demarcate the field that remains uncontrolled in favor of the administration in terms of assessing factors that pose a threat to national security. The judiciary’s guarantee in this case, prior to the issuance of the recent PNP, was limited to approval of the request by one body. In particular, a request from the National Intelligence Service (hereinafter: NIS) – as an agency that usually requires removal for reasons of national security – is submitted to a prosecutor appointed by a decision of the Supreme Judicial Council within the service. Both the one-personality of the body and the spatial osmosis of the requesting and approving Power, if they did not affect the essence of the prosecutor’s judgment, nevertheless raise questions of semiological certainty (theorie des apparences). Restoration by the last PPP of the regime that was in effect until 2018, i.e. submitting the decision on expulsion for approval to the prosecutor of the appellate instance is the right direction. And this is because the exclusivity of a single prosecutor is violated, which reduces the risk of institutionalization of the process, but this is not enough.

And although any case of removal of confidentiality – whether for reasons of national security or for the verification of especially serious crimes – requires a prior decision of the judiciary, the Constitution introduces through paragraph 2 of Article 19 an additional guarantee entrusted in general to the protection of the right to independent power (Article 19 item 2). Thus, taking into account the principle of separation of functions as an organizational basis and a fundamental principle of the state, the question now arises of the limits of control exercised by the Office of the Privacy of Communications (hereinafter: ADAE). , whenever constraints are imposed on the right.

Based on the conclusion that paragraph 2 of Article 19 of the Constitution, where the competence of the Authority is guaranteed, should be understood as a more specific provision in relation to the classical description of the division of functions, in Article 26 the discussion of the limits of control by the Authority, in the category of exemptions for reasons of national security, is worded as follows: although there is no legal need for justification in the body of the provision, this does not mean that access to the elements of an official file that form the basis of a request for removal can also be challenged against ADAE, which, according to the definitions of the ADAE organization, “investigates the legality orders to remove confidentiality” (Article 10). It goes without saying that the Office undertakes to maintain the confidentiality of anyone with respect to information that becomes known to it in the context of the audit. However, it may use them in the exercise of its authorizing powers, given that EYP is included, as defined by law, among the entities controlled by the Authority.

This position is not inconsistent with the provision of Law 3115/2003, which states that “ADAE only intervenes in the enforcement of conditions and procedures for the removal of confidentiality, without taking into account the decision of the competent judicial authority.” And this is not only because this provision also may be interpreted in the light of article 19 and the more specific competence of the Authority.Moreover, in a hypothetical case, for example, when, after the removal of the confidentiality regime for reasons of national security, even no evidence was found in an official file that was brought to the attention of the prosecutor, control over the ECtHR will simply find that one of the necessary conditions is missing to legally impose a limitation on the right, rather, an interference with a judgment on the merits would constitute a different assessment by the AIAEA in relation to the identification of a risk or threat to national security on the basis ove collected data.

It should be recalled that the plenipotentiary members of the Authority, like any constitutionally protected independent body, are appointed by an increased majority vote by the Conference of Speakers of Parliament and enjoy personal and functional independence. Thus, they provide the necessary evidence for ADAE to assume the role of institutional guarantor. Finally, oversight by an independent body is required to fill some of the aforementioned legal gaps, mainly at the level of transparency and accountability.

It is a fact that what is at stake in the Androulakis case is neither suitable for opportunist exploitation nor for party use. Unfortunately, the main dimension of the issue is state, and its management affects the most sensitive spheres of public life. Therefore, there is an urgent need to restore the damaged prestige of institutions and stop their erosion, since anything else heralds nothing less than what Stephen Levitsky and Daniel Sieblatt call the final death of democracy.

* Dr. Ekaterina Papanikolaou is a lawyer and a member of the Office of Information Privacy Protection. It goes without saying that the opinions expressed in this text reflect the personal scientific positions of the writer.