Chief prosecutor puts Greece’s rule of law to the test

by Sarantis Michalopoulos

Particularly, Renew Europe MEP Sophie in ‘t Veld has called on the Commission to break its silence and speak out while her colleague Giorgios Kyrtsos accused the EPP of trying to “white-wash” the Greek PM over the wiretapping scandal.

Greek chief prosecutor Isidoros Ntogiakos caused shockwaves on Tuesday after he ruled that the independent authority responsible for privacy issues (ADAE) cannot conduct audits of telecommunication companies to find out who is under surveillance by Greek secret services.

He even threatened the members of the Hellenic Authority for Communication Security and Privacy (ADAE) with criminal prosecution.

The so-called “Greek Watergate” scandal, according to which several politicians, journalists and businessmen have been surveilled by Greek secret services by the conservative government of Prime Minister Kyriakos Mitsotakis (EPP), is considered an open wound for the country and the upcoming general elections.

Mitsotakis has tried to keep his distance so far, saying he was not aware of the wiretapping cases, although the first law he enacted as a prime minister was to take secret services under his remit.

ADAE is an independent authority whose role is provided in the Greek constitution. Since the scandal erupted, several people requested the authority to find out whether they were under surveillance.

A EURACTIV article opened Pandora’s Box in late December after it was revealed that ADAE conducted an audit of the Cosmote telecommunication company and found that the phones of Renew Europe MEP Giorgos Kyrtsos and investigative journalist Tasos Telloglou were bugged.

During the audit, the chief prosecutor expressed his reservations regarding ADAE’s role in carrying out such controls.

ADAE ignored the prosecutor’s reservations, continued the audits and even set up a team to scrutinise telecommunication companies.

However, the chief prosecutor intervened with an opinion on Tuesday, saying that according to a new law, ADAE cannot carry out such activities, and if it does so, criminal penalties could apply.

“Due to the particularly sensitive nature of the issue of the lifting of the confidentiality of communications, the criminal sanctions provided for by the existing legislative regime in the event of a violation of the relevant provisions both on the part of a member of ADAE and on the part of other persons […] are particularly serious, with a prescribed penalty, under certain conditions, even temporary imprisonment”, the chief prosecutor said.

A blow to the rule of law

His opinion triggered strong reactions from all opposition parties and justice stakeholders.

A common point of all reactions to the prosecutor’s opinion is that it essentially blocks ADAE’s controls, intimidates and hinders the investigation of the wiretapping scandal.

“The opinion of Mr Ntogiakos is a flagrant violation of the Constitution. No law and no opinion can invalidate the Constitution, and the mission of the ADAE defined there to control and ensure the privacy of communications,” main opposition Syriza leader Alexis Tsipras (EU Left) said in a statement.

Xenofon Contiades, professor and president of the Center for European Constitutional Law, slammed the prosecutor, saying the “legal community will strongly oppose the unthinkable interference of the prosecutor in the constitutionally and legislatively enshrined mission of ADAE”.

The Greek government said it “fully respects” justice and blamed Tsipras for creating a “toxic” atmosphere.

The Commission’s silent anger

Syriza MEP Kostas Arvanitis said he would raise the issue with the relevant EU authorities as the opinion targets ADAE ” and the country’s rule of law”.

Arvanitis also said, “no intimidation and no interference can stop the investigation either inside or outside the country.”

Greece is still waiting for the outcome of the European Parliament PEGA committee’s investigation over the “Greek Watergate” and a crucial visit to Athens by the LIBE committee.

An EU official told EURACTIV that the European Commission, which has been quite sensitive regarding the role of independent national authorities, felt the matter “would be for the national authorities to examine”.

“Any attempts by national security services to illegally access data of citizens, including journalists and political opponents, if confirmed, is unacceptable,” the EU official said.

“You know that we follow the situation in Greece, as well as other member states, very closely. We have been monitoring the use of spyware on a more regular basis through other means, for instance, in the Rule of Law Report. The official added that the use of spyware “is one of the issues covered in 2022 Rule of Law Report, including the country chapter on Greece”.

EU Commission chief Ursula von der Leyen and Greek Vice-President Margaritis Schinas – both belonging to the same European People’s Party (EPP) political family as Mitsotakis – have so far the national secret services bugged the phone of socialist opposition leader Nikos Androulakisbeen silent over the “Greek Watergate”.

The EPP has not taken any position contrary to socialists and democrats (S&D) who have called for an urgent political change in the Mediterranean country.

The Greens and Renew Europe have also condemned the Greek government over the case.

Particularly, Renew Europe MEP Sophie in ‘t Veld has called on the Commission to break its silence and speak out while her colleague Giorgios Kyrtsos accused the EPP of trying to “white-wash” the Greek PM over the wiretapping scandal.

*first published in: Euractiv.com