CYIL vol. 10 (2019)

MICHAL PETR CYIL 10 ȍ2019Ȏ Regrettably, such a general principle is not enshrined in Czech criminal law. Criminal proceedings are governed by the Criminal Procedure Code, 67 which guarantees the privilege only with regard to specific investigative measures of the police. 68 Thus, it is stated in relation to interception and recording of the telecommunication operations (i.e. “wiretapping”) that it is not allowed to intercept or record any telecommunication operation between defence counsel and the accused person and that if the police ascertain that such a communication was intercepted or recorded, they are obliged to discontinue the intercepting immediately, destroy the record of its contents and abstain from using the information learned in such a way. 69 Similarly, with respect to surveillance, it is stated that if the police ascertains that an accused person is communicating with the defence counsel, they are obliged to destroy the record thereof and in no way use that information. 70 Conversely, the provisions on searches in homes and on other premises do not provide on any protection of LPP; 71 only in relation to searches of lawyer’s premises it is stated that in order to protect the lawyers’ professional secrecy, such searches may only be carried out in cooperation with a representative of the Czech Bar Association. 72 The provisions of the Criminal Procedure Code on LPP are criticised for not being robust enough; 73 in particular, they do not cover all the modes of client – attorney communications and they do not extend to time before initiation of the criminal proceedings. It ought to be added that other pieces of legislation on criminal law cover the LPP as well; for example, the Imprisonment Act states that a convicted person has a right to receive legal assistance from the lawyer who is authorized to confer with the client without attendance of a third person; their correspondence is also to be protected. 74 2. LPP in Czech Administrative Law A crucial question is whether the LPP, as guaranteed (despite only in a rudimental way) for the purposes of criminal proceedings, is also applicable in administrative proceedings; it should in principle be the case with infractions, as the ECtHR provides the same level of protection in proceedings concerning breaches of law, whether classified as criminal or not. Regrettably, even though the Act on Infractions 75 was adopted relatively recently, it does not provide for anything in this regard. The only area of administrative law where the LPP has been invoked in practice is the competition law. Czech competition law, both material and procedural, is modelled on the EU one and the Czech courts systematically maintain that it should be interpreted in the same way, i.e. that the EU jurisprudence needs to be taken into account. Thus, even though not provided for in the Czech Competition Act, 76 the courts have held that the LPP is to 67 Act No. 141/1961 Coll., Criminal Procedure Code, as amended. 68 In detail, see e.g. GŘIVNA, T. Právo na zachování důvěrné komunikace mezi advokátem a jeho klientem. [The right to maintain confidential communication between the lawyer and his client] Bulletin advokacie , 2017 (6), p. 61.

69 Criminal Procedure Code, Sec. 88 (1). 70 Criminal Procedure Code, Sec. 158d (1).

71 Criminal Procedure Code, Sec. 85. 72 Criminal Procedure Code, Sec. 85b. 73 In detail, see GŘIVNA, T. (sub 68). 74 Act No. 169/1999 Coll., on imprisonment, as amended, Sec. 17 (3) and 26 (3). 75 Act No. 250/2016 Coll., on infractions and on their prosecution. 76 Act No. 143/2001 Coll., on the protection of competition, as amended.

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