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President ponders rejecting ‘defanged’ phone-tapping bill

AG Giorgos Savvides

The president may refuse to sign into law a bill recently passed authorising phone tapping, over concerns that certain last-minute amendments made to it could defang its potency in fighting crime.

Justice minister Giorgos Savvides said Monday the president is considering the matter, but no decision has been made yet. The attorney-general’s feedback would need to be sought first before any decision to send the law back to parliament.

The president has 15 days to send the bill back to parliament.

In particular, the government has reservations over two amendments inserted by the Edek party just prior to the vote at the House plenum last Friday.

Under the first, a judge would need to be satisfied that there is “serious cause” before he or she approves an application by police to surveil an individual.

The “serious cause” condition was added to the standard “probable cause” as one more cumulative criterion which a judge must consider before green-lighting a phone tap.

According to Savvides, this addition poses two problems. The first is legal, in that there is no case law regarding the definition or application of “serious cause.” Whereas “probable cause” is well established and understood in case law.

Moreover, applying the “serious cause” criterion would make approval of phone surveillance requests more difficult, and also allow defendants’ lawyers – if a case should go to trial – one more point to argue that the tapping evidence was unlawfully obtained.

The second amendment inserted by Edek provides for a blanket prohibition on surveilling phone conversations between an individual and his or her lawyer.

Savvides said in his opinion this was overkill, since the law already affords protections to attorney-client privilege.

As an objection to the amendment, he cited the hypothetical example where a phone conversation may yield information about criminal activity engaged in not by the parties under surveillance, but by third parties.

However, the total ban proposed by Edek would make any evidence obtained in this way inadmissible in court.

Another possibility might be that the lawyer speaking to the individual being surveilled may himself or herself be engaging or assisting in criminal activity, for example in money laundering.

“These amendments therefore weaken the bill and make it easier to question the evidence obtained,” the minister said.

Edek’s motivations for inserting the two amendments were not immediately clear. But experience from overseas shows that judges tend to merely rubberstamp requests for secret surveillance.

In the United States, for instance, from 1979 to 2017 Fisa (Foreign Intelligence Surveillance Act) courts approved over 99 per cent of surveillance applications filed by law enforcement.

According to Wikipedia, of 41,222 Fisa requests submitted during that period, only 85 (or 0.2 per cent) were denied.

Allowing phone surveillance has been a long-standing demand by crime fighters in Cyprus.

Current legislation allows the authorities to monitor and gather the written electronic communications of persons of interest, including emails, and messages on Viber, Skype, WhatsApp and Facebook.

The new bill provides for a request to be put to court asking for an order allowing phone surveillance. The request will be made by the attorney-general who would have received a written application from the police or the secret service containing a report of the situation, the identity of the person and the duration of the wiretap.

The surveillance will be carried out by authorised members of the police or the secret service.

The bill contained safeguards that would ensure surveillance would only be conducted in a bid to clear or prevent serious crimes or because it is dictated by national security.


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