(1) If the tangible property important to the criminal proceedings is not released when those
who have it in their possession are prompted, it may be removed from their possession
on the warrant of the presiding judge, and in preliminary hearing, the public prosecutor
or police authority. The police authority needs to have the prior approval of the public
prosecutor for the issue of such warrant.
(2) If the authority that issued the warrant for the seizure of the tangible property does not
seize such property themselves, the police authority shall do so on the basis of the
warrant.
(3) Without the prior consent referred to in Subsection 1 the warrant may be issued by the
police authority only if prior approval cannot be achieved and the matter cannot be
delayed.
(4) A person who is not involved in the matter shall take part in seizing the tangible
property.
(5) The transcript of the release and seizure of the tangible property must also contain a
sufficiently accurate description of the released or seized property that would make it
possible to determine its identity.
(6) The authority that performed the action shall immediately issue a written confirmation of
the receipt of the property or a copy of the transcript to the person who released the
tangible property or from whom the tangible property was removed, together with a
written instruction that they must not transfer the released or removed tangible property
to another party or encumber it and that any legal action made contrary to such
prohibition is invalid.
(7) Removed tangible property that was not taken into custody by a law enforcement
authority in order to take evidence shall be governed accordingly by Section 78 Subsection 4 through 8.
A lawful seizure of property is conditioned by prior approval of the public
prosecutor.
31 Data stored in seized devices can be accessed and used as evidence
without further consent from the judge or public prosecutor. There is currently
ongoing a discussion, whether the law enforcement authorities can also seize sole
data following provisions in section 79 of the Code of Criminal Procedure, but there
is no conclusive case-law on that mater.
32
The Code of Criminal Procedure does not contain any specific provisions which
would allow LEA to access the digital evidence which is stored in cloud services or
computer systems connected to the network. Therefore, LEA must follow procedures defined in more general provisions. As was stated in the Opinion of the
Supreme Public Prosecutors Office No. 1/2015, for this purpose, it is applicable
procedure mentioned in the section 158d of the Code of Criminal Procedure that
covers the Surveillance of Persons and Items (informal translation from ASPI
system):
§ 158d Surveillance of Persons and Items
(1) The surveillance of persons and items (hereinafter referred to as “surveillance”) means
acquiring knowledge about persons and items performed in a classified manner by
technical or other means. If the police authority finds during the surveillance that the
31 In a case of a house search, there must be issued a previous warrant by a judge. For more
information see in Czech: Šámal (2013), pp. 1111–1120.
32 See in Czech e.g. Polčák et al. (2015), pp. 100–115: Hlaváčová and Chorvát (2016), pp. 3–24.
138
R. Polčák et al.
who have it in their possession are prompted, it may be removed from their possession
on the warrant of the presiding judge, and in preliminary hearing, the public prosecutor
or police authority. The police authority needs to have the prior approval of the public
prosecutor for the issue of such warrant.
(2) If the authority that issued the warrant for the seizure of the tangible property does not
seize such property themselves, the police authority shall do so on the basis of the
warrant.
(3) Without the prior consent referred to in Subsection 1 the warrant may be issued by the
police authority only if prior approval cannot be achieved and the matter cannot be
delayed.
(4) A person who is not involved in the matter shall take part in seizing the tangible
property.
(5) The transcript of the release and seizure of the tangible property must also contain a
sufficiently accurate description of the released or seized property that would make it
possible to determine its identity.
(6) The authority that performed the action shall immediately issue a written confirmation of
the receipt of the property or a copy of the transcript to the person who released the
tangible property or from whom the tangible property was removed, together with a
written instruction that they must not transfer the released or removed tangible property
to another party or encumber it and that any legal action made contrary to such
prohibition is invalid.
(7) Removed tangible property that was not taken into custody by a law enforcement
authority in order to take evidence shall be governed accordingly by Section 78 Subsection 4 through 8.
A lawful seizure of property is conditioned by prior approval of the public
prosecutor.
31 Data stored in seized devices can be accessed and used as evidence
without further consent from the judge or public prosecutor. There is currently
ongoing a discussion, whether the law enforcement authorities can also seize sole
data following provisions in section 79 of the Code of Criminal Procedure, but there
is no conclusive case-law on that mater.
32
The Code of Criminal Procedure does not contain any specific provisions which
would allow LEA to access the digital evidence which is stored in cloud services or
computer systems connected to the network. Therefore, LEA must follow procedures defined in more general provisions. As was stated in the Opinion of the
Supreme Public Prosecutors Office No. 1/2015, for this purpose, it is applicable
procedure mentioned in the section 158d of the Code of Criminal Procedure that
covers the Surveillance of Persons and Items (informal translation from ASPI
system):
§ 158d Surveillance of Persons and Items
(1) The surveillance of persons and items (hereinafter referred to as “surveillance”) means
acquiring knowledge about persons and items performed in a classified manner by
technical or other means. If the police authority finds during the surveillance that the
31 In a case of a house search, there must be issued a previous warrant by a judge. For more
information see in Czech: Šámal (2013), pp. 1111–1120.
32 See in Czech e.g. Polčák et al. (2015), pp. 100–115: Hlaváčová and Chorvát (2016), pp. 3–24.
138
R. Polčák et al.