[. . .] However, as is clear from the case law of the European Court of Human Rights and of
the Supreme Court, the protection of communication between solicitor and his client is not
absolute, inviolable and under certain circumstances may be limited. Possible criminal
activity of the solicitor, both to the detriment of the client or to the detriment of others in
complicity with the client, can’t be considered as the provision of legal services, and in such
a case it is impossible to provide any protection of such activity. [. . .]
Secondly, the data subject has a right to be informed of the interception. The
public prosecutor or the police authority, by whose decision the case was finally
concluded, or the presiding judge in the first instance after the final conclusion of the
matter, shall inform the affected person, if known, on the ordered interception.
47 As
is clarified in Opinion No. 1/2018 of the Supreme Public Prosecutors Office, this
information should be delivered as a separate announcement, which must be served
directly to the hands of the intercepted person.
48 The information should include the
designation of the court that issued the order for the interception and recording of
telecommunications service, the duration of the interception and the date of the
conclusion. The information about the interception is not provided to the affected
person in cases when criminal proceedings are conducted for specific crimes, the
criminal offence involved more people, and in relation to at least one of them the
criminal proceedings have not yet been finally concluded, or when it could lead to
threats to national security, life, health, or the rights and freedoms of individuals.
49
The affected person may afterwards file a petition to review the legality of the
order for the interception and recording of telecommunications service to the
Supreme Court.
50
In a case when the data subject provides his or her consent prior to the interception, the interception may also be conducted without a court order. This is however
limited to several criminal offences such as human trafficking, unlawful delegation
of custody of a child to someone else, restriction of personal freedoms, extortion,
kidnapping of a child and persons suffering from a mental disorder, violence against
a group of people or an individual, dangerous threats, or dangerous persecution.
51
This approach can be problematic because it infringes telecommunications secrecy
of the other party to the communication who did not provide for the consent. For that
reason the Supreme Public Prosecutor included in the General Instruction
No. 8/2009 the rule that the public prosecutor must assess the suitability and legality
of an interception order issued by the police without a proper court order.
52
Finally, Opinion No. 1/2018 of the Supreme Public Prosecutors Office brought an
interesting limitation following principle of data minimisation. It states that public
47 Section 88 subsection 8 of the Act no. 141/1961 Sb., the Code of Criminal Procedure.
48 See in Czech: Opinion No. 1/2018 of the Supreme Public Prosecutors Office, online: http://www.
nsz.cz/images/stories/PDF/Stanoviska_Proces/2018/1_SL_719-2017.pdf.
49 See Section 88 subsection 9 of the Act no. 141/1961 Sb., the Code of Criminal Procedure.
50 Section 88 subsection 8 of the Act no. 141/1961 Sb., the Code of Criminal Procedure.
51 See Section 88 subsection 5 of the Act no. 141/1961 Sb., the Code of Criminal Procedure.
52 Section 45 of the General Instruction of the Supreme Public Prosecutor no. 8/2009, on criminal
proceedings.
National Report: Czech Republic
145
the Supreme Court, the protection of communication between solicitor and his client is not
absolute, inviolable and under certain circumstances may be limited. Possible criminal
activity of the solicitor, both to the detriment of the client or to the detriment of others in
complicity with the client, can’t be considered as the provision of legal services, and in such
a case it is impossible to provide any protection of such activity. [. . .]
Secondly, the data subject has a right to be informed of the interception. The
public prosecutor or the police authority, by whose decision the case was finally
concluded, or the presiding judge in the first instance after the final conclusion of the
matter, shall inform the affected person, if known, on the ordered interception.
47 As
is clarified in Opinion No. 1/2018 of the Supreme Public Prosecutors Office, this
information should be delivered as a separate announcement, which must be served
directly to the hands of the intercepted person.
48 The information should include the
designation of the court that issued the order for the interception and recording of
telecommunications service, the duration of the interception and the date of the
conclusion. The information about the interception is not provided to the affected
person in cases when criminal proceedings are conducted for specific crimes, the
criminal offence involved more people, and in relation to at least one of them the
criminal proceedings have not yet been finally concluded, or when it could lead to
threats to national security, life, health, or the rights and freedoms of individuals.
49
The affected person may afterwards file a petition to review the legality of the
order for the interception and recording of telecommunications service to the
Supreme Court.
50
In a case when the data subject provides his or her consent prior to the interception, the interception may also be conducted without a court order. This is however
limited to several criminal offences such as human trafficking, unlawful delegation
of custody of a child to someone else, restriction of personal freedoms, extortion,
kidnapping of a child and persons suffering from a mental disorder, violence against
a group of people or an individual, dangerous threats, or dangerous persecution.
51
This approach can be problematic because it infringes telecommunications secrecy
of the other party to the communication who did not provide for the consent. For that
reason the Supreme Public Prosecutor included in the General Instruction
No. 8/2009 the rule that the public prosecutor must assess the suitability and legality
of an interception order issued by the police without a proper court order.
52
Finally, Opinion No. 1/2018 of the Supreme Public Prosecutors Office brought an
interesting limitation following principle of data minimisation. It states that public
47 Section 88 subsection 8 of the Act no. 141/1961 Sb., the Code of Criminal Procedure.
48 See in Czech: Opinion No. 1/2018 of the Supreme Public Prosecutors Office, online: http://www.
nsz.cz/images/stories/PDF/Stanoviska_Proces/2018/1_SL_719-2017.pdf.
49 See Section 88 subsection 9 of the Act no. 141/1961 Sb., the Code of Criminal Procedure.
50 Section 88 subsection 8 of the Act no. 141/1961 Sb., the Code of Criminal Procedure.
51 See Section 88 subsection 5 of the Act no. 141/1961 Sb., the Code of Criminal Procedure.
52 Section 45 of the General Instruction of the Supreme Public Prosecutor no. 8/2009, on criminal
proceedings.
National Report: Czech Republic
145