“Unconstitutional laws are not enforced and cannot be corrected by the prosecutor’s conclusions,” the resolution emphasizes. Board of Directors of the Bar Associationon which the conclusion of the Prosecutor of the Supreme Court is collected and placed on the content Isidoros Dogiakou.

The majority decision (16 votes for an opinion expressing absolute and categorical disagreement with the opinion and 8 votes against) was based on a number of arguments.

According to the DSA’s decision, the government’s recent law (5002 of 2022) on declassification for national security reasons is unconstitutional and goes beyond the constitution protecting the confidentiality of communications.

In another part of the decision, the ability of the Attorney of the Supreme Court to give an opinion at the request of a private individual, as in this case, at the request of a communication service provider, and also for the additional reason that, according to the DSA decision, the provider is also controlled.

In addition, the DSA denies the legitimacy and constitutionality of the government’s recent privacy law to transfer responsibility for informing citizens about surveillance from the Anti-Corruption Commission to a Tripartite body composed of two prosecutors. and President ADAE.

To this end, the DSA states that “no government agency may interfere with the ADAE’s duties.”

DSA solution in detail

1. The DSA Board of Directors expresses its absolute and categorical disagreement with both the issue and the contents of no. 1/2023 Opinions of the Prosecutor of the Supreme Court.

2. The secrecy of communications, guaranteed by Articles 19 of the Constitution and 8 of the ECHR, is a fundamental human right directly related to the functioning of a democratic state. That is why, unlike other individual rights, the Constitution establishes it as “absolutely inviolable” and does not speak of limitations or exceptions, but only of “guarantees” for its elimination by the “judicial power”, and then only “for reasons of national security” or “ for the investigation of especially serious crimes.
For this reason, its protection is the highest duty of the state and binds all state functions.

3. The legal body, in the course of the parliamentary procedure for the adoption of the Neo-opagus Law 5002/2022, indicated that the relevant legislative initiative did not meet the requirements of the Constitution and the ECtHR, nor the reasonable expectations of democratic citizens, since it was aimed almost exclusively at the communication management of the declassification case without significant improvement provided legal protection. It is characteristic that: a) the conditional notification of the injured citizen after three years does not meet the guarantees of the Constitution and the ECtHR, especially considering that the destruction of the relevant material preceded (usually six months) after the termination of the relevant prosecutor’s order); b) in practice, it is possible to remove secrecy for an indefinite period, citing national security considerations; c) instead of strengthening the control and auditing powers of the National Security Agency, they create grounds for interrogation.

4. The direct constitutional recognition of ADAE as an independent body (art. 19, part 2 of the Constitution) with the task of ensuring the “absolutely inviolable” right to secrecy of communications has a self-evident regulatory consequence, according to the interpretation of the provisions of the law in accordance with the Constitution – and not in accordance with the interpretation of the Constitution in accordance with the law, as the Attorney of the Supreme Court openly attempted – that: exercising his powers under the provisions of the Law on the Executive Constitution 3115/2003, which also includes the supervisory powers of the Office in relation to telecommunications service providers; b) the general legislator (for example, the legislator of Law 5002/2022) cannot forbid his constitutional power, nor can he cancel the essential powers already granted to him, c) no body, even the judiciary, is authorized to intervene in the activities of the ADAE and replace it in the exercise of their powers; d) no state body can exercise any form of preventive control or prudential supervision in relation to it, since the Office is subject exclusively to judicial control by the competent authority in accordance with the procedural rules, judicial formation.

5. Pursuant to article 29 of Law 4938/2022, the advisory competence of the Prosecutor of the Supreme Court is subject to two limitations: a) relevant legal matters “do not [πρέπει να] were referred to the courts” and b) the question must be “more general”, that is, by definition not related to individual cases. Indeed, until today it has always been considered that the advisory competence of the prosecutor of the Supreme Court is to formulate his opinion in general and abstractly on the controversial meaning of the provisions of the laws on matters of general interest and in no case on cases in which the competent judicial authorities and prosecution authorities, or on matters which the courts or judicial councils intend to deal with, in order to avoid influencing their decision, subject to the prescribed remedies and assistance” [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)].

Moreover, until today it has been a consistent position that the Attorney of the Supreme Court does not give an opinion on issues raised by individuals, namely plaintiffs or potential plaintiffs or in any way involved in the relevant 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. Attorney of the Supreme Court with No. 1/2023 his opinion: a) Unacceptably interferes (in violation of articles 19 and 101A Comp.) in the exercise of the constitutionally and legally guaranteed audit competence of the AADE, since he believes that the Office not only cannot issue an individual request information of the injured person before the expiration of three years from the date of imposition of a challenge, as well as to conduct an audit in order to establish violations of the law that make it mandatory to impose administrative penalties, informing the Parliament, but also notifying the competent prosecution authorities about this. b) Menacingly points out to the members of the ADAE the criminal sanctions envisaged. c) Takes a position in violation of Law 4938/2022 in individual cases, since the complaints of specific individuals about the violation of their rights are pending before the Court and AADE, while the expert himself mistakenly assumes that the provisions of Law 5022/2022 are retroactive, and also apply to the removal of confidentiality until 9.12.2022 d) Placed at the request of a private person, namely a trusted communication service provider, which may become a party in the future to e) violates the principle of judicial protection of citizens guaranteed by the Constitution (Article 20 part 1) and judicial independence (art. 87), which also applies to prosecutors in the performance of their duties (art. 28, paragraph 4 of law 4938/2022), since the claims were filed by the victims in connection with the removal of the privacy of persons who are at the stage of criminal pre-trial proceeding, which may create a dispute, referred to the administrative court, between ADAE and the telecommunications service provider, if the Authority imposes on him sanctions.

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 received about illegal connections of citizens and the use of illegal spyware.

8. Unconstitutional laws are unenforceable and cannot be corrected by prosecutorial opinions. The DSA, as the guardian of democratic ideals and the defender of personal 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 place for discounts and offsets, but there is an obligation to strictly observe the Constitution and the European legal order.

Democracy is deeply rooted in this place, and lawyers have made it their mission to serve it forever and unwaveringly.