5.3.2. The National Case Law on the Principle of Proportionality

Greek case law on the principle of proportionality is quite rich. According to national case-law, no right is absolute, not even the constitutional ones, therefore even a constitutional right, such as the right to personal data protection, may be restricted for reasons of public interest, such as the protection of other constitutional rights, in accordance with the criteria imposed by the principle of proportionality<sup>46</sup> .

Particularly, in the monitoring technologies context, the Council of State considers in line with DPA's guidelines, that personal data may only be lawfully taken and processed when a legal interest is to be satisfied, provided that this legal interest obviously outweighs the rights and interests of the personal data subject and only if the legal order does not provide any other way for satisfying the specific legal interest<sup>47</sup> .

Individual rights' restrictions for environmental protection is a special case of implementation of the principle of proportionality particularly important for national case law. Due to the paramount importance of environmental protection, due to environmental degradation throughout the planet and natural phenomena described as "climate change" as well as due to the need for decisive measures to ensure the effective protection of the environment, measures restricting other rights that are considered proportionate to this purpose may be very intensive, reaching even "the core" of restricted rights. In this sense, the substantial deprivation of the use of a property by its owner for environmental purposes, may be considered lawful, but the same time may lead to lawful compensation claim by the owner in proportion to the imposed deprivation48. Similarly, an absolute prohibition of hunting in an area of the Natura 2000 network, as long as there is a need for such a strict prohibition as an appropriate measure to protect wildlife in that area, is in line with the principle of proportionality49. Moreover, the Hellenic Supreme Court applies the principle of proportionality in order to resolve the question of procedural use, before civil and criminal courts, of evidence obtained through illegal means, despite Article 19 par. 3 of the Constitution which explicitly prohibits the use of illegal evidence. According to national case law, securing the exercise of the right to judicial protection of a party (Article 20 par. 1 of the Constitution) consists a legal reason for the use of evidence obtained through illegal means in accordance with the principle of proportionality, i.e., if the data collected are absolutely necessary and appropriate for the recognition, exercise or defense of a right before the court, to the extent absolutely necessary and insofar as this purpose cannot be achieved by other less restrictive means<sup>50</sup> .


<sup>43</sup> Hellenic Council of State 1393/2016, which ruled that in determining the environmental fine, while determining the unified fine, the principle of proportionality is applied, through the co-assessment of the elements determining and restricting the amount of the fine, which are provided for in the substantive provisions of the environmental laws.

<sup>44</sup> Government Gazette, Series I, No. 24/ 2012.

<sup>45</sup> e.g., in accordance with article 94 §§ 1 and 8a' of law 4495/2017 for administrative and criminal sanctions in case of illegal constructions, it is considered that during the measurement of the imposed penalty, the value of the illegal construction and the degree of environmental degradation are to be taken into account.

<sup>48</sup> Hellenic Council of State 488/2018, 2428/2016, 2133/2016, 2601/2005.

<sup>49</sup> Hellenic Council of State 875, 876/2019.

<sup>50</sup> Hellenic Supreme Court (Plen. Sess.) 1/2017, Hellenic Supreme Court 901/2019, 653/2013.
