obtained in this way and if there is no other way to achieve such purpose or if its
achievement would be otherwise significantly reduced. The investigator, the public
prosecutor and most importantly the judge should, therefore, consider whether the
evidence relevant for criminal proceedings cannot be obtained by other less intrusive
means of investigation referred to in the Code of Criminal Procedure. This approach
is based upon basic principles of criminal proceedings defined in the section 2 of the
Code of Criminal Procedure, especially on the principle of proportionality and
principle of moderation formulated in the Section 2 subsection 4 as follows:
[. . .] Criminal cases shall be dealt with a full investigation of rights and freedoms guaranteed
by the Charter of Fundamental Rights and Freedoms and by international treaties on human
rights and fundamental freedoms that the Czech Republic is bound by; when conducting acts
of criminal proceedings, the rights of persons that such acts affect may be intervened only
when justified by law and to the extent necessary to ensure the purpose of criminal proceedings. [. . .]
The Constitutional Court was dealing with formal requirements of interception
orders in decision No. II. ÚS 615/06 mentioned above.
There are a few rules that protect data subjects affected by an interception. Firstly,
the communication between the defence counsel and the accused should be excluded
from the interception. Such communication is generally inadmissible in criminal
proceedings, and if the police authority finds during the interception that the accused
has communicated with his or her defence counsel, they are obliged to immediately
destroy the interception record and not to use the acquired information in any way.
44
These rules are in some sources deemed rather problematic. The reason is that most
interceptions are conducted before the commencement of the criminal prosecution,
and in this stage, the person against whom the criminal proceedings are conducted is
not regarded as the accused. Therefore, stricto sensu interpretation of the provision
would mean, that before the commencement of the criminal prosecution, the police
would be able to access and use even the communication between the person against
whom the criminal proceedings are conducted and her attorney. Some sources see
this as a disproportionate breach of the right for a fair trial.
45
In any case, the protection of the communication between the defence counsel
and the accused is not absolute. In particular, when the communication relates to a
crime, which is committed by the defence counsel in cooperation with the accused,
then the protection does not apply. This approach is supported in the decision of
Constitutional Court No. I. ÚS 1638/14, which states
46 :
44 Section 88 subsection 1 of the Act no. 141/1961 Sb., the Code of Criminal Procedure. See
commentary in Czech Šámal (2013), pp. 1192–1206.
45 For example, in Czech see Vantuch, 2008, no. 10, p. 29.
46 Para. 25 of the decision no. I. ÚS 1638/14. Provided excerpt translated by the authors. This
approach was followed later by Opinion No. 1/2018 of the Supreme Public Prosecutors Office. See
in Czech online: http://www.nsz.cz/images/stories/PDF/Stanoviska_Proces/2018/1_SL_719-2017.
pdf.
144
R. Polčák et al.
achievement would be otherwise significantly reduced. The investigator, the public
prosecutor and most importantly the judge should, therefore, consider whether the
evidence relevant for criminal proceedings cannot be obtained by other less intrusive
means of investigation referred to in the Code of Criminal Procedure. This approach
is based upon basic principles of criminal proceedings defined in the section 2 of the
Code of Criminal Procedure, especially on the principle of proportionality and
principle of moderation formulated in the Section 2 subsection 4 as follows:
[. . .] Criminal cases shall be dealt with a full investigation of rights and freedoms guaranteed
by the Charter of Fundamental Rights and Freedoms and by international treaties on human
rights and fundamental freedoms that the Czech Republic is bound by; when conducting acts
of criminal proceedings, the rights of persons that such acts affect may be intervened only
when justified by law and to the extent necessary to ensure the purpose of criminal proceedings. [. . .]
The Constitutional Court was dealing with formal requirements of interception
orders in decision No. II. ÚS 615/06 mentioned above.
There are a few rules that protect data subjects affected by an interception. Firstly,
the communication between the defence counsel and the accused should be excluded
from the interception. Such communication is generally inadmissible in criminal
proceedings, and if the police authority finds during the interception that the accused
has communicated with his or her defence counsel, they are obliged to immediately
destroy the interception record and not to use the acquired information in any way.
44
These rules are in some sources deemed rather problematic. The reason is that most
interceptions are conducted before the commencement of the criminal prosecution,
and in this stage, the person against whom the criminal proceedings are conducted is
not regarded as the accused. Therefore, stricto sensu interpretation of the provision
would mean, that before the commencement of the criminal prosecution, the police
would be able to access and use even the communication between the person against
whom the criminal proceedings are conducted and her attorney. Some sources see
this as a disproportionate breach of the right for a fair trial.
45
In any case, the protection of the communication between the defence counsel
and the accused is not absolute. In particular, when the communication relates to a
crime, which is committed by the defence counsel in cooperation with the accused,
then the protection does not apply. This approach is supported in the decision of
Constitutional Court No. I. ÚS 1638/14, which states
46 :
44 Section 88 subsection 1 of the Act no. 141/1961 Sb., the Code of Criminal Procedure. See
commentary in Czech Šámal (2013), pp. 1192–1206.
45 For example, in Czech see Vantuch, 2008, no. 10, p. 29.
46 Para. 25 of the decision no. I. ÚS 1638/14. Provided excerpt translated by the authors. This
approach was followed later by Opinion No. 1/2018 of the Supreme Public Prosecutors Office. See
in Czech online: http://www.nsz.cz/images/stories/PDF/Stanoviska_Proces/2018/1_SL_719-2017.
pdf.
144
R. Polčák et al.