Wiretapping scandal / The Mitsotakis law is unconstitutional, prohibiting the information of those being monitored

It was ruled unconstitutional unanimously by the Plenary of the Council of State The law passed by the Mitsotakis government in 2021 and applied to wiretapping scandal and her case monitoring of PASOK president Nikos Androulakis, prohibiting its updating.

With its unanimous decision, the Plenary of the supreme court ruled that it is excessive the measure of the universal ban on informing those whose rights are affected by surveillanceeven if the invocation is for reasons of national security and therefore the specific provisions were deemed invalid and unconstitutional.

Thus, the case of the surveillance of Nikos Androulakis returns to the Authority for Ensuring the Privacy of Communications (ADAE), which must handle it in the light of the new data.

What will happen after the important decision of the Supreme Court on the Androulakis case remains to be seen in the coming days as the president of the Authority, Christos Rammos, will be asked to manage the whole matter.

The decision of the SC and its reasoning

The Plenary Session of the Council of State, chaired by Evangelia Nika and rapporteur by State Councilor Marlena Tripolitsiotis, partly accepted the request for annulment against the act of the president of the AIAEA, by which the request of Nikos Androulakis from 7.9.2022 to be notified to him was rejected the prosecutor’s order and the complete file with the material he had collected, after the measure of lifting the confidentiality of his communications was imposed on him

Specifically, the SC ruled:

“The regulation of article 87 of Law 4790/2021, which established in the case of the imposition of the measure of lifting the confidentiality of communications for reasons of national security, the complete prohibition of the possibility of informing the affected person, after the end of the measure, even when not is jeopardizing the national security purposes that led to its imposition, constitutes excessive restriction of the inviolability of communication, which is not justified in the context of the functioning of the rule of lawand therefore contravenes articles 19 par. 1 of the Constitution, 5 par. 1 and 15 par. 1 of Directive 2002/58, 7, 8 and 11 of the Charter of Fundamental Rights of the European Union and 8 of the ECHR and is void.

Therefore, the contested act, as far as it is based on the above invalid provision, is not legal, and for this reason, which is validly presented, the considered application must be partially accepted, this act partially annulled and the case referred to the A.D.A.E. for a new, legal judgment, in accordance with the provision of paragraph 9 of article 5 of Law 2225/1994, as it was in force before its amendment by the deemed invalid provision of Article 87 of Law 4790/2021, because, as was accepted, the latest law 5002/2022 is not applicable to pending requests for notification to the affected party of a measure to remove the confidentiality of communications obtained under a previous legislative regime; this is because with this latest law a new legislative regime was introduced that occupies the entire procedure enforcement of the lifting of the confidentiality of communications, from the submission of the relevant request and the approval of the disputed measure until the notification of its lifting.

This regime constitutes a system with internal coherence, the substantive and procedural conditions of which are specific to requests for the lifting of confidentiality submitted under its provisions, in order to be processed according to its special regulations and the guarantees it establishes.

This is supported by the absence of transitional provisions, and is especially true for political persons, such as the applicant, for whom a special public authority is provided for initiating the procedure for submitting the request for the removal of confidentiality and a special body for granting the first of the two total required authorizations of his approval”.

On the contrary, the SC ruled that “the contested act, in the part that rejected the request of the applicant to inform the President of the Parliament and the leaders of the parliamentary parties about the content of the prosecutor’s order on the lifting of the confidentiality of his communications, is legally justified, the and regarding the opposite ground of annulment it is rejected as groundless”.