provisions on wiretapping and similar investigative activities. The Code of Criminal
Procedure in its section 88 allows interceptions of communication once the criminal
proceedings have started and only when it is done for investigation of a “crime for
which the law stipulates a prison sentence with the upper penalty limit of at least
eight years, for a criminal offence of machinations in insolvency proceedings,
violation of regulations on rules of competition under, negotiating advantages during
public procurement, tender and auction, machinations during public procurement
and tenders, machinations at a public auction, misuse of powers of an official person
or . . . any other intentional criminal offence for which prosecution is stipulated in a
declared international treaty”. The strict nature of this exception was confirmed by
the Constitutional Court in decision No. II. ÚS 615/06 in which the court stated
(paras 13–16):
The right to protection of the secrecy of messages arising from Art. 13 of the Charter of
Fundamental Rights and Freedoms, together with personal freedom and other constitutionally guaranteed fundamental rights, comprises the personal sphere of an individual, whose
individual integrity, as an essential condition for a dignified existence and the development
of human life generally, must be respected and thoroughly protected as a token of respect for
the rights and freedoms of people and citizens.
If the constitutional order permits a breach of this protection, it does so solely and exclusively in the interests of a democratic society, or in the interest of the constitutionally
guaranteed fundamental rights and freedoms of others. . . . Therefore, there may be only
such infringement of the fundamental rights and freedoms by the state power, which is
necessary for this sense.
It should be emphasised that an effective judicial review of the use of any operative means,
with an overlap into the area of fundamental rights and freedoms, is absolutely crucial to a
fair trial in criminal proceedings.
39
In terms of the constitutional order, a violation of the secrecy of messages is possible only in
cases and manner prescribed by law. Statutory regulation interfering with this right must be
formulated so that it does not deny this fundamental human right and it must also be
interpreted this way. . . . A court order for interception and recording of telecommunication
operations must be written and reasoned. It must therefore be issued in respect to a person
against whom criminal proceeding is conducted. If the proceedings are conducted on the
basis of reasonable suspicion, it must be explained in a recital what evidence supports such
conclusion. The mere criminal complaint itself, if it does not include explanation, is not
sufficient for court order. . . . The order may therefore be issued only in duly commenced
criminal proceedings for a legally qualified crime, and must be supported by relevant clues
from which we can derive a reasonable suspicion of committing such a crime. The order
must be individualized in a relation to the specific person who is the user of intercepted
telephone device. . . . Finally, the order must provide at least a minimal indication of what
facts relevant for the proceeding are to be thus identified, and what is inferred from that.
The object of interception is broadly specified as “telecommunications traffic”.
Neither legislature nor case law defines this term. Traditionally, this term means
allowing the interception. See also Interception of electronic communications in the Polčák et al.
(2016) and Wagnerová (2012).
39 Ibidem, para. 15.
National Report: Czech Republic
141
Procedure in its section 88 allows interceptions of communication once the criminal
proceedings have started and only when it is done for investigation of a “crime for
which the law stipulates a prison sentence with the upper penalty limit of at least
eight years, for a criminal offence of machinations in insolvency proceedings,
violation of regulations on rules of competition under, negotiating advantages during
public procurement, tender and auction, machinations during public procurement
and tenders, machinations at a public auction, misuse of powers of an official person
or . . . any other intentional criminal offence for which prosecution is stipulated in a
declared international treaty”. The strict nature of this exception was confirmed by
the Constitutional Court in decision No. II. ÚS 615/06 in which the court stated
(paras 13–16):
The right to protection of the secrecy of messages arising from Art. 13 of the Charter of
Fundamental Rights and Freedoms, together with personal freedom and other constitutionally guaranteed fundamental rights, comprises the personal sphere of an individual, whose
individual integrity, as an essential condition for a dignified existence and the development
of human life generally, must be respected and thoroughly protected as a token of respect for
the rights and freedoms of people and citizens.
If the constitutional order permits a breach of this protection, it does so solely and exclusively in the interests of a democratic society, or in the interest of the constitutionally
guaranteed fundamental rights and freedoms of others. . . . Therefore, there may be only
such infringement of the fundamental rights and freedoms by the state power, which is
necessary for this sense.
It should be emphasised that an effective judicial review of the use of any operative means,
with an overlap into the area of fundamental rights and freedoms, is absolutely crucial to a
fair trial in criminal proceedings.
39
In terms of the constitutional order, a violation of the secrecy of messages is possible only in
cases and manner prescribed by law. Statutory regulation interfering with this right must be
formulated so that it does not deny this fundamental human right and it must also be
interpreted this way. . . . A court order for interception and recording of telecommunication
operations must be written and reasoned. It must therefore be issued in respect to a person
against whom criminal proceeding is conducted. If the proceedings are conducted on the
basis of reasonable suspicion, it must be explained in a recital what evidence supports such
conclusion. The mere criminal complaint itself, if it does not include explanation, is not
sufficient for court order. . . . The order may therefore be issued only in duly commenced
criminal proceedings for a legally qualified crime, and must be supported by relevant clues
from which we can derive a reasonable suspicion of committing such a crime. The order
must be individualized in a relation to the specific person who is the user of intercepted
telephone device. . . . Finally, the order must provide at least a minimal indication of what
facts relevant for the proceeding are to be thus identified, and what is inferred from that.
The object of interception is broadly specified as “telecommunications traffic”.
Neither legislature nor case law defines this term. Traditionally, this term means
allowing the interception. See also Interception of electronic communications in the Polčák et al.
(2016) and Wagnerová (2012).
39 Ibidem, para. 15.
National Report: Czech Republic
141