The right to secrecy is an indicator of democracy
The trending headlines that made the news during the past few weeks have helped us sufficiently familiarise ourselves with the contents of Article 19 of the Greek Constitution. It is now common knowledge that it proclaims the protection of the “absolutely inviolable right” to the secrecy of correspondence or communication, in whatever form it may be carried out – from romantic correspondence in the form of letters, to modern smart applications, where the largest volume of communication has been hosted in the past five years. On the critical nature of this specific right, its technical parameters and the shortcomings of the domestic regulatory framework, almost all noteworthy issues have already been outlined in detail.
It is nevertheless important to insist on the epigrammatic (at least) salience of the tautological tracing of communication secrecy to the deeper essence of democracy.
The loaded semantics of this right as a constitutional guarantee – one of the fundamental ones when it comes to democracy – concerns its interconnection with the unhindered development of one’s personality. Thus, the ability of the legal subjects to cultivate thoughts and to share with each other what is transformed into a speech and/or written word product and becomes the content of a discursive experience, is absolutely dependent on the certainty that this communication is carried out in conditions of privacy, excluding any intrusion by third parties.
And since democracy, as an intrinsic forum of opinions’ exchange, is articulated on the basis of and through discourse, no such dialectical sequence can evolve in an environment where there are (even latent) suspicions of intrusive presence of poachers. Otherwise, the breach of confidentiality eliminates a key precondition for the establishment of a framework that favours free thought and its sharing.
Civil law legends link the origins of the right to secrecy and its scientific conception to an article by Samuel D. Warren and Louis Brandeis, in the Harvard Law Review, who, as early as 1890, saw in the concept of privacy the emergence of “a right to be let alone”.
Since then, the consolidation of the right and the methodological development of its content by science and jurisprudence have reasonably established it as a qualitative indicator of democracy.
And precisely this is the main reason why the self-importance of communication secrecy in democracy is not offset, nor can it be measured against other indicators when assessing the fulfilment/ implementation of government commitments. However crucial the latter may be for ensuring material sustenance and prosperity, social well-being is impossible outside the rule of law. Moreover, ensuring the confidentiality of communication is an underlying condition and a sine qua non guarantee for the effective exercise of other rights.
One only needs to consider some of the more specific manifestations of the right, which include the protection of the communication between politicians, journalists, activists and generally individuals involved in initiatives opposing government plans, lawyers and their clients, etc., in order to understand how crucial the fields of public and private dialogue that are encapsulated in the core or the margins of the right in question are.
In the national legal order, the existing regulatory framework does not, in principle, lack guarantees to ensure that the absolutely necessary measure will be observed whenever national security reasons or the investigation of a high level crime require the restriction of the right. In practice, however, as recent events have shown, the procedure lacks, thus jeopardising the constitutional right. We shall focus on just two observations that would contribute to the alignment of the procedure with the criteria of the European Convention on Human Rights (hereinafter: ECHR) and the case law of the Strasbourg European Court of Human Rights:
(a) to correct the misunderstanding that has been widely propagated in the past few days, in relation to the opposability of the concept of secrecy. While secrecy is, in principle, reasonably linked to the action of the secret services as a factor of operational efficiency, it goes without saying that it cannot be invoked when the work of these services is being reviewed by the bodies responsible to do so according to the Constitution and the law, in the context of the principle of accountability, which is fundamental to the democratic constitution. This means that there can be no refusal to inform the parliamentary committees – both standing and investigative – which, according to the classical conception of the rule of law, have the task of exercising control on behalf of the sovereign people. Similarly, the right to secrecy cannot be used in order to oppose monitoring procedures on behalf of the Hellenic Authority for Communication Security and Privacy – ADAE (hereinafter ADAE), which, as the body responsible for verifying the legality of secrecy lifting procedures under the Constitution, must have full access to the data relevant to any lifting of the right to communication secrecy that has been carried out.
Since the National Intelligence Service – EYP (hereinafter: EYP) is included – and rightly so – among the bodies that are controlled by ADAE, provisions regarding any granting of prior authorisation by the supervising Minister do not apply to it either. The permanent and established controls both by the Greek Parliament and by ADAE exist as per the standing democratic principle. They should therefore not be confused with the need to grant prior authorisation in special and exceptional cases, e.g. in case an EYP employee needs to provide a witness testimony before a court of law.
(b) There are also certain elements of the procedure that pose a problem in the area of secrecy lifting for reasons of national security. These are parameters which conflict with the criteria consistently set by the case law of the European Court of Human Rights in relation to the compatibility of domestic regulatory frameworks with the provisions of the ECHR. The indeterminate duration, the lack of any justification whatsoever in the provision’s body, as well as the possibility of not mentioning the name of the defendant, and the fact that the decision may be taken by a single person instead of a collective body, are just some of the points that need to be brought into line with the minimum legal requirements.
In this sense, the recent intervention – on 12th September – of the European Commissioner for Justice, Didier Reynders, in the context of a relevant debate before the plenary of the European Parliament, is particularly useful for the description of the Greek problem: “the mere invocation of national security reasons is not sufficient to justify a breach of European law, as the case law of the Court of Justice of the European Union emphatically points out. The establishment of national security grounds must be based on credible established facts”.
* It is implicit that the views expressed in this text reflect the personal scientific positions of the author.
