The issue of amending the Constitution for the sake of intercepting telephone conversations turned into a thriller for strong nerves. In the end, the issue did not make it to the Plenary Session of the Parliament and "F tis Kyriakis" publishes today the whole background of the decision to continue the debate in the Legal Committee with the new composition of the Parliament.
The executive power, although all this time has been urgently asking for a solution to be found with amendments that will enable the authorities to carry out the surveillance in practice and legally, it was finally the one that recommended that the bill to amend the Constitution with the final amendment of the Democratic Rally not go to Thursday's Plenary. As a result, the road remains, at least for the time being, closed to the differences in the two related legislations, on the KYP and on the protection of the confidentiality of private communication.
What applies today
In 2010, the Constitution was amended for the first time, allowing surveillance for only five specific offences, subject to judicial approval. The legislation was also amended twice, in 2015 and 2020. In essence, however, what has been legislated to date has remained only in theory and has not been applied in practice. According to criminologist Ilias Stefanou, from 2010 to 2026, no testimony was ever brought before the court that was the result of communications surveillance. The whole issue seems to be stuck, under today's data, to technical and other issues that concerned the providers, i.e. the telecommunications companies.
The original proposal
Around mid-February, the government submitted a relevant bill to amend Article 17 of the Constitution, which "enshrines the right to confidentiality of correspondence and any other form of communication, providing for the cases in which interference with this right may be allowed".
The basic provisions of the proposed bill for the constitutional amendment were initially two:
(a) Broadening the grounds for lifting secrecy to include additional categories of serious criminal offences, including terrorism, espionage, sexual exploitation and abuse of children, migrant smuggling, online offences and money laundering. It also includes the addition of possession of narcotic drugs and psychotropic substances for the purpose of procurement as a recognized reason for lifting secrecy.
(b) Introduction of a written authorization from the Attorney General to lift secrecy if the intervention is deemed necessary in a democratic society for the security or sovereignty of the Republic.
In essence, in addition to expanding the offenses for which confidentiality in communications could be lifted, the initial proposal to amend the Constitution attempted to enable the Commander of the KYP to initiate surveillance without the need for prior judicial approval, with the excuse of immediacy.
Successive reversals
The discussion of the bill to amend the Constitution was accompanied by successive twists and turns. The attempt to give power to the Governor of the KYP to decide on his own to start a surveillance, without any judicial approval, was faced with a lot of reactions from MPs and parties, telecommunications companies and the legal world.
Initially, serious objections were raised by MPs about the role of the Attorney General, as the person responsible for authorizing the start of a surveillance. This led to his exclusion from the equation and the discussion of a proposal for the start of surveillance by decision of the Governor of the KYP and within 72 hours to judge whether the mandate was rightly or wrongly given by a three-member committee headed by a former judge.
As Thursday's crucial Plenary Session approached, the pressure to delete the regulation (b) to start surveillance without judicial approval became more and more intense. The knot seems to have come to a head after an internal conflict in the Democratic Rally. Serious objections within the party and dynamic interventions from the legal world led to the submission of a new amendment by the chairman of the Legal Committee. In the nick of time, Nikos Tornaritis finally proposed the deletion of the regulation (b) for the lifting of secrecy without judicial approval.
The background of the pass to the new Parliament
While the final amendment of DISY was submitted, printed, circulated in writing and everything was ready to go to a vote in the Plenary, everything was overturned (again) in the closed-door meeting of the Legal Committee.
The Minister of Justice came to the meeting room holding in his hands a new proposal, for which there was the consent of the Cyprus Bar Association. The proposal provided for the establishment of an independent administrative authority that would decide on the start of surveillance, however, according to sources who spoke to "F", there was still a queue for specific cases where the Commander of the KYP would give an order and the judgment of the independent administrative authority would follow within 72 hours. The latter, in addition to the reactions it caused, also brought concern within the room where the Committee met about the positions of lawyers. Questions were raised whether and why there is a shift in the positions of the Pancyprian Bar Association in relation to the powers that the Governor of the KYP will have, since in the previous days he took a strong position against the start of surveillance without judicial approval.
The Legal Committee clarified that it is not possible to put a new text before them two hours before the scheduled vote in the Plenary and ask them to take a position. It is noted that many were already annoyed by the fact that the debate on a very important constitutional amendment that touches on human rights began, just a month before the last Plenary Session of the Parliament. In the end, most agreed that it would be better not to rush now and leave this important issue in the hands of the new Parliament.
However, the information gathered by "F" leads to the conclusion that the government and the KYP were trying until the last minute to pass what they wanted, i.e. a simplified and easy-to-execute procedure for lifting telephone secrecy. The KYP itself even seems to have had serious objections to the final amendment of DISY, which was finally agreed upon at the request of the government not to go to the Plenary. Essentially, this shows that the government and the KYP, weighing the data before them, preferred the situation to remain as it is for the time being, rather than for the Parliament to vote for a constitutional amendment that will not satisfy them.
Reflection on the new composition
The failure of all sides to find a solution that will be widely accepted to the issue of surveillance did not go unnoticed in last Thursday's Plenary.
The chairman of the Legal Committee, Nikos Tornaritis, expressed his disappointment and regret for the fact that the current Parliament did not ultimately have the right to strengthen the arsenal of the prosecuting authorities against organized crime. He even complained that in the last two months he has received several exhortations, specific threats and personal pillorying in relation to this issue.
From the positions of other MPs, it was understood that there are doubts as to whether the composition of the new Parliament will have the wisdom to study seriously and will be able to vote for such a delicate constitutional amendment. Averoff Neophytou commented caustically that with the new Parliament there will be something good for those who are worried about the frequent constitutional amendments, since he estimates that in the next five years "nothing will happen". Nikolas Papadopoulos, for his part, argued that for such complex issues a formula should be found that will be widely accepted, however he commented that he is not optimistic about the next Parliament, which in his estimation "can change the constitution in the opposite direction, to strengthen organized crime". Aristos Damianou said that the discussion will continue with the new Parliament and "let the citizens have their minds to make the right choices".
Nikos Georgiou: Achieving balance is a challenge
"The debate on the amendment of the Constitution and in particular of Article 17 of the Constitution, is dynamically returning to the forefront, reflecting the new realities that are being formed both nationally and internationally. Confidentiality of communication is a fundamental right in any democratic state governed by the rule of law. However, its absolute protection, without clear and functional exceptions, may limit the effectiveness of the prosecuting authorities in the face of serious threats.
The need for the introduction of a provision that allows, under strict terms and conditions, the lifting of the confidentiality of communications for the purpose of investigating criminal offenses and reasons related to the security of the Republic is now imperative. However, such a regulation must be based on a clear legal framework, require prior judicial approval and be subject to continuous and independent control, in order to prevent any abuses for other purposes and violations of fundamental rights of citizens.
The legal order and society need enhanced protection at a time when geopolitical developments in our region are making the environment more unstable, unpredictable and dangerous. At the same time, internal risks, such as organized crime, have mutated: they now have large financial resources, advanced technological equipment, networks of influence and cooperate with criminal elements from other countries. Traditional methods of treatment are not enough. The prosecuting authorities cannot chase the shadow of crime or any threat against Democracy but be ahead of them in order to effectively deal with and combat any dangers.
The challenge, therefore, is not the choice between security and freedom, but the achievement of a balance that ensures both. A carefully planned constitutional amendment can be the necessary step in this direction, enhancing security without undermining the core of democratic values.
With this in mind, the discussion continues in the C.C. of Lawyers so that the Constitutional amendment can be achieved with sobriety and seriousness with the greatest possible consensus.
As DISY. Until today, we have neither been passive receivers, nor have we undermined this effort. On the contrary, we participated constructively in the discussion, with suggestions and proposals that were accepted and incorporated into the basic text that is currently before the CC of Legal Sciences."
Andreas Pasiourtidis: Advance judicial approval is a red line
"With this process, the rules of procedure of the Parliament were completely overflowed. In the last month we did not adhere to procedural timetables, we held urgent sessions, we changed texts on the spot. It was something very wrong and our view is that you do not proceed with constitutional amendments of such great seriousness as this one, which touches a very basic constitutional right to privacy and communication, with this sloppiness. Nevertheless, we went to all the meetings.
However, I must say that even on the last day, the effort to change texts and submit amendments shows that the haste and speed with which some people were trying to pass a constitutional amendment left great room for mistakes to be made.
As far as the substance is concerned, you know very well that, with regard to the amendment of the Constitution, our red line was and is that for reasons of institutional protection, there must be prior judicial approval for a surveillance warrant. As is the case with arrest warrants, search warrants in houses, vehicles, etc. This position has never changed for AKEL.
Beyond that, it is a package of bills. In addition to the bill that amends the Constitution, there are also the two implementing bills that also contain provisions that we must look at with great care. They change the monitoring process, which also touches on essential protection issues in terms of surveillance, interconnection and interconnection with mobile phones, whether providers will be informed to give permission, etc.
Therefore, all issues should be discussed as a package, with seriousness and the time required. I'm not saying that there should be unlimited time. I understand that there is a need to add additional offences to the offences for which secrecy can be lifted, but this must be done properly, in a documented and deliberate manner, so that the necessary balance can be struck between the protection of human rights and the strengthening of the arsenal of the prosecuting authorities and the secret services, so that they can prevent or bring criminals to court and convict them."
