The case file for the telephone wiretapping case is not being withdrawn from the archive, as the prosecutor ruled, despite the fact that the Single-Member Misdemeanor Court of Athens had requested that an investigation be initiated into the offense of espionage, while also requesting that an investigation be conducted into nine new persons for complicity in the acts of the already convicted businessmen.
In the opinion of the chief prosecutor, "the evidence relied on by the Single-Member Misdemeanor Court of Athens does not constitute new evidence pursuant to article 43, paragraph 6 of the Criminal Procedure Code, capable of justifying the withdrawal of the case file from the Archive. Consequently, the conclusions of the findings of the Deputy Prosecutor of the Supreme Court, Achilleas Zisi, are not overturned."
The central point of the prosecutor's judgment was the issue of "new facts". As noted, the evidence cited by the court - mainly witness statements and journalistic information - does not constitute substantially new data, but had already been evaluated in the context of the initial investigation. Therefore, they do not justify the withdrawal of the case file from the archive, in accordance with Article 43 §6 of the Criminal Procedure Code.
No new evidence emerged.
As for A.K., the man from whose prepaid opium card the "tainted" SMS messages to PASOK president Nikos Androulakis were sent, for whom the Supreme Court had ruled in the Zisis finding that he had no connection with the allegations, since a third party used the card, Mr. Tzavelas insists that no evidence emerged that could overturn the previous finding.
"Contrary to this, the clear and categorical ruling of the finding of the Deputy Prosecutor of the Supreme Court, Achilleas ZISI, the Judge of the Single-Member Misdemeanor Court of Athens that tried the case, instead of a new element that should, according to Criminal Procedure, arise and be clearly highlighted from the hearing process and, in fact, such that the withdrawal of the archived preliminary examination file from the archive would be justified, he argues - on the basis of very weak indications and suspicions, the need, in his judgment and suggestion and order - to conduct another - third - investigation, with the aim of possibly finding new essential elements. And the mere admission of the above Judge of the Single-Member Misdemeanor Court of Athens that another, new investigation is required to verify any participation of A.K., as well as any other third parties, in the criminal acts in question, emphatically highlights the fact that, during the hearing, no new, essential evidence emerged that would overturn the conclusion of the issued prosecutor's report, and the continuous involvement of the judiciary in an endless cycle of identical investigations, without any substantial reason, hinders and delays its award," he says characteristically and adds that the hearing revealed "newer facts, however, from the consideration and evaluation of these, it remains impossible to identify the person of the remaining unknown, owner and user of the above prepaid card".
Particular reference is made to the possibility of committing the crime of espionage. "According to the prosecutor of the Supreme Court, the existence of a state secret within the meaning of the law has not been proven. Despite the fact that high-ranking officials, such as ministers and top state officials, are alleged to be the targets of Predator, it has not emerged that specific secret information was obtained or attempted to be obtained. The relevant assessments are characterized as "hypothetical" and "uncertain".
"Hypothetical" assessment of espionage
"On this issue, the reasoning of the issued decision of the Single-Member Criminal Court of Athens suggests, without confirmation, that, due to the status of some of the targets of the “PREDATOR” spyware, such as the Minister of Citizen Protection, Mr. Michael CHRYSOCHOIDES, the Minister of Foreign Affairs, Mr. Nikolaos DENDIAS, the Chief of the General Staff of the Hellenic National Defence, Konstantinos FLOROU, the Chief of the Hellenic Police, Mr. Michael KARAMALAKIS and other Ministers, who handled key portfolios with state secrets and secret information (within the meaning of article 149 of the Criminal Code), the targeting of these persons, with the above spyware, which had the ability to remotely access the log files, in combination with the extent of the data that could be detached, with its use and with the recipients of the messages, which contained links to infection with the above spyware, resulted in the actual or attempted entry into the possession or knowledge of the convicted, as users of the said software, Felix BITZIOU, Sara Aleksandra HAMOU, Tal Jonathan DILIAN, Ioannis LAVRANOU and any third party participants, of the data and any documents, considered, uncertainly, as state secrets, within the meaning of article 149 of the Criminal Code, which were considered likely to be contained in the mobile phone devices of the above important Greek officials, by the mere fact that these, uncertainly and hypothetically, were considered, as contained, in the mobile phone devices of the above persons, without these (the above data and documents) ever being detected and examined, in order to establish whether they were indeed "These were state secrets, in the previously analyzed sense," notes Mr. Tzavellas.
The approach is similar for the possibility of committing the crime of illegal trafficking of surveillance software after 2022. The prosecution considers that there is insufficient evidence that the companies involved continued such activity during the relevant period. As stated in the act issued by Mr. Tzavelas, the testimonies relied on by the court were deemed to concern different business activities and not the trafficking of spyware.
Finally, the prosecutor's order rejects the need for further investigation, citing the so-called "quasi-res judicata". As noted, the reexamination of an already filed case is permitted only when "substantial new evidence" emerges, which is not the case in this case. This position aims to avoid an "endless cycle of investigations" and to ensure "legal certainty".
Although the press releases will range from very select to rare, I said I'd pass...because sometimes the editors hide.
