2009/08/28 - II. ÚS 2894: Police Search at Attorney Office

28 August 2009

HEADNOTES

The

obligation to maintain confidentiality is the basic precondition for the

provision of legal aid and thus a necessary condition for a democratic

society to function. The practice of the profession of an attorney at

law is based on a confidential relationship between the attorney at law

and the client, and on the trust of the client in the confidentiality of

the attorney at law. The Constitutional Court has stated earlier that

this is in no instance a privilege of the attorney at law which should

be the basis for exemption from a generally valid and binding legal

order, but it is an obligation imposed on the attorney at law in the

interests of their clients and for their protection. In such a sense,

professional secret and maintaining the same by the attorney at law is

endowed with relevant protection, this particularly in situations when

such an obligation by the attorney at law may be endangered, for

example, precisely in cases such as a search of a home of an attorney at

law or at their office.
The rights of third parties are, within

this procedure, in the first place protected by the representative of

the Association, the task of whom is to voice their opinion on the

nature of the documents seized and the possibility of their release. The

reasons for which the representative of the Association might refuse to

give consent to familiarisation with the documents may be reviewed

solely by a court, this only upon a petition to this effect, the

contents of which are defined by paragraph 4 of the above-specified

provisions, and which must be filed within a period of 15 days from the

refusal to grant consent from the representative of the Association.

The

course of a term of 15 days for filing a petition pursuant to § 85b

paragraph 3 of the Criminal Procedure Code, whereby dissent of the

representative of the Association could possibly be overruled, results

from the provisions of § 60 paragraph 1 of the Criminal Procedure Code,

according to which the term specified in days does not include that day

on which the event determining the commencement of the term (refusal of

the consent) took place. This term must be observed by the petitioner,

since the procedure pursuant to § 61 paragraph 1 of the Criminal

Procedure Code, whereby the court might possibly restore the term, is,

due to the nature of the case, inapplicable here, as this is not a

remedy of a defendant or their defence counsel, and also, the provisions

of § 85b paragraph 6 of the Criminal Procedure Code explicitly bar

prolongation of such a term through the action of a court according to §

59 paragraph 4, the fourth sentence of the Criminal Procedure Code. As

the term in the case under consideration commenced on 19 June 2008, it

ceased on 3 July 2008. From the provisions of § 85b paragraph 6 of the

Criminal Procedure Code it may be inferred that solely within this

period of time it was possible to file a faultless petition which the

court could hear, since the possibility of removing errors in the

petition in an additionally provided term was thereby unambiguously

eliminated.

The

opposite interpretation of the provisions in question has deviated from

the standards of interpretation and thus also from the boundaries of

constitutionality.

Breaking

the independence of an attorney at law without statutory reasons then

means an infringement both of the rights of the clients and of

synallagmatically established obligations and rights of the attorney at

law related to the practice of their profession. In the given case, the

matter concerns not only detaining the computers and related equipment,

but also the information and documents stored on such computers, which

the attorney at law is obliged by law to reasonably keep on file with

respect to the provision of legal services (§ 25 paragraph 1 of the Act

on the Legal Profession), and which they necessarily need for the proper

practice of the legal profession. Clearly, these circumstances

necessarily restrain the complainant in his activities and ability to

discharge his obligations in the provision of legal aid, this beyond the

scope of fulfilling the purpose of the criminal proceedings (§ 1

paragraph 1 of the Criminal Procedure Code). Therefore, as a

consequence, the above-specified course of action taken by the Municipal

Court in Prague also represents an infringement of the complainant’s

right to engage in commercial and economic activity under Article 26

paragraph 1 of the Charter. The point is that this right includes also

the obligation on the part of the bodies involved in criminal

proceedings to respect the attorney at law’s obligation to maintain

confidentiality, serving to protect the clients of the attorney at law,

and thus the confidentiality of the attorney at law as a precondition

for the practice of the legal profession, the same forming the attorney

at law’s business.
 

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE REPUBLIC


A

Panel of the Constitutional Court, consisting of Chairman Stanislav

Balík and Justices Dagmar Lastovecká and Jiří Nykodým, adjudicated, in

the legal case of complainant JUDr. Ji. T., attorney at law, represented

by JUDr. Josef Doucha, attorney at law with a registered office at

Rovná 280, Vestec, Prague-West District, on a constitutional complaint

against “other encroachment by a body of public power” – a procedure

taken by the Municipal Court in Prague in proceedings administered under

file No. Nt 603/2008 on a petition for substitution of consent from a

representative of the Czech Bar Association pursuant to § 85b paragraph 3

of the Criminal Procedure Code, with participation by the Municipal

Court in Prague as a party to the proceedings, and (1) the Czech Bar

Association and (2) the High Public Prosecutor’s Office in Prague as

secondary parties to the proceedings, as follows:

I.)

The Constitutional Court enjoins the Municipal Court in Prague from

continuing to violate the constitutionally guaranteed rights of the

complainant guaranteed by Article 36 paragraph 1, Article 26 paragraph

1, and Article 11 paragraph 1 of the Charter of Fundamental Rights and

Basic Freedoms.

II.)

The Constitutional Court orders the Municipal Court in Prague to cease

inhibiting the Czech Bar Association from returning to the complainant

the deposited documents seized during searches held on 18 June 2008 and

specified in detail in records on conducting the searches dated 18 June

2008, ČTS: OKFK-182/TČ-2008-18 and ČTS: OKFK-182/TČ-2008-18-B.



REASONING


I.


By

a timely constitutional complaint which meets conditions established by

Act No. 182/1993 Coll. on the Constitutional Court, as amended by later

regulations (hereinafter referred to only as the “Act on the

Constitutional Court”), the complainant protests against “other

encroachment by a body of public power”; that is the procedure taken by

the Municipal Court in Prague in proceedings administered under file No.

Nt 603/2008 on a petition for substitution of consent from a

representative of the Czech Bar Association under § 85b paragraph 3 of

the Criminal Procedure Code, and demands that the Constitutional Court

declare that through the course of actions taken by the Municipal Court

in Prague, which in the case administered under file No. Nt 603/2008

unreasonably ordered a public session and thus hindered the secondary

party from releasing documents in both printed and electronic form, the

fundamental rights of the complainant established by Article 2 paragraph

2, Articles 11 and 13, Article 36 paragraph 1, and Article 40 paragraph

2 of the Charter of Fundamental Rights and Basic Freedoms (hereinafter

referred to only as the “Charter”) were violated. The complainant

further demands that the Constitutional Court enjoin the Municipal Court

in Prague from continuing to order a public session, and order the

Municipal Court in Prague to allow the Czech Bar Association to return

the seized documents in both printed and electronic form. At the same

time, the complainant proposes that the Constitutional Court, pursuant

to § 80 paragraph 1 of the Act on the Constitutional Court, order the

Municipal Court in Prague to cease continuing in such an act of

encroachment until the time a decision is taken on this complaint, as

possible violation of the privileged relationship would represent a

serious detriment to the clients of the complainant and attorneys at law

Mgr. D. T. and Mgr. R. N., who practise the legal profession together

with the complainant. According to the complainant, such detriment would

not be later reparable in any way.

The complainant states in the

constitutional complaint that criminal prosecution for the criminal act

of evading tax, a fee or similar mandatory payment pursuant to § 148

paragraph 1, paragraph 4 of the Criminal Code, is being conducted

against him and other persons, within the scope of which searches of his

home and locations at the registered office of the law firm in which he

practises the legal profession took place on 18 June 2008. During these

searches, documents and computers which were used not only by the

complainant, but also by Mgr. D. T. and Mgr. R. N, attorneys at law who

work in an association with the complainant, were seized. These searches

were conducted in the presence of a representative of the Czech Bar

Association, Mgr. T. R., who, pursuant to § 85b paragraph 2 of the

Criminal Procedure Code, refused to grant consent for the body carrying

out the searches to familiarise themself with the contents of the

documents seized. Therefore, the documents in question (including data

stored on computers and mobile telephones) were sealed and handed to the

Czech Bar Association, with which they have remained deposited until

now. As is further declared by the complainant, on the basis of the

petition pursuant to § 85b of the Criminal Procedure Code for

substitution of consent from the representative, dated 14 July 2008, the

Municipal Court in Prague ordered, in case file No. Nt 603/2008, public

sessions for the purpose of becoming familiarised with the contents of

the documents pursuant to § 85b paragraph 7 of the Criminal Procedure

Code. The complainant, however, is of the opinion that the

above-specified petition dated 14 July 2008 was filed clearly after the

term of 15 days, when such a term is established for filing the same by §

85b paragraph 5 of the Criminal Procedure Code, and, therefore, it is

indubitable that the course of actions taken by the Chairwoman of the

Panel of the Municipal Court in Prague is unlawful, since § 85b

paragraph 6 of the Criminal Procedure Code imposed an obligation on her

not to take such a petition into consideration. The complainant is

convinced that such provisions contain a normative order whereby the

legislature did not leave it to the court to decide whether they would

proceed in such way or not. After the complainant became convinced of

the lateness of the petition, he sent the Czech Bar Association a

request for returning the documents seized, and at the same time sent

the Municipal Court in Prague a demand for cancellation of the public

sessions which had been ordered. In connection with the above request by

the complainant, the Czech Bar Association subsequently sent an enquiry

to the Court as to whether the public sessions ordered would be

cancelled. The Chairwoman of the Panel of the Municipal Court in Prague

responded to the same on 13 November 2008, specifying that she had

considered the petition dated 14 July 2008 as filed in a timely manner,

and, therefore, asked that the Czech Bar Association submit the seized

documents. According to the complainant, the Czech Bar Association is at

present in such a situation that, with respect to the attitude of the

court, the Association cannot without unease discharge its statutory

obligation and return the items seized, without exposing the complainant

to the risk of further searches of his home and other premises and

possible placement in custody once again.

In his constitutional

complaint, the complainant claims that the legal secret, or obligatory

confidentiality, is not a privilege on the part of attorneys at law, but

an obligation imposed on attorneys at law in the interest of their

clientele and for protection of the same. That is also why clear rules

under which it is possible to consult documents which form the subject

of the privileged relationship were incorporated in the Criminal

Procedure Code. The complainant refers to the fact that the provisions

in question do not concern documents important for criminal proceedings,

as said courts probably mistakenly believe, but actually documents

which may contain facts covered by attorney confidentiality, or

documents which, on the contrary, do not contain such facts. The

regulation in question does not serve to substitute for consent from a

client to the provision of information which the attorney at law

maintains in confidentiality. The complainant emphasises that he

necessarily needs the impounded documents for proper practice of the

legal profession. In addition, the impounded computers and related

equipment are of no small value, and when the court, contrary to the

law, still detains such items through the Czech Bar Association, the

court also infringes the right of ownership.
 
In the

constitutional complaint, the complainant also includes arguments

against the actual criminal prosecution of himself and states that he

did not commit the criminal act for which he is prosecuted, and for this

reason the violation of the principle of obligatory attorney

confidentiality is unjustified. The complainant infers that had the

Municipal Court in Prague taken the above facts into consideration, they

would have ascertained that the petition filed pursuant to § 85b

paragraph 3 of the Criminal Procedure Code is manifestly unjustified.
 
To

exemplify the situation which arose, the complainant also states that

by ordering public sessions, the Municipal Court in Prague also violated

the rights of attorneys at law Mgr. D. T. and Mgr. R. N., who practise

the legal profession together with the complainant. Also their documents

were seized, in spite of the fact that the bodies carrying out the

search had been repeatedly warned about this fact.
 


II.


From

the files of the Municipal Court in Prague, file Nos. Nt 601/2008, Nt

602/2008 and Nt 603/2008, which the Constitutional Court requested in

order to hear and adjudicate the matter, the Constitutional Court

ascertained the following:

On the basis of a resolution by the

Police of the Czech Republic, Department for Detection of Corruption and

Financial Criminality, the Criminal Police and Investigation Service,

Tax and Money Laundering Section, dated 16 June 2008, ref. No.

OKFK-182-59/TČ-2008-18-B, the criminal prosecution of the complainant

(together with other defendants) was initiated for the criminal act of

evading tax, a fee or similar mandatory payment under § 148 paragraph 1,

paragraph 4 of the Criminal Code, committed in the form of aiding and

abetting under § 9 paragraph 2 of the Criminal Code. The complainant is

supposed to have committed this act by signing, on the basis of the

power of attorney, on 16 March 2007 in Prague, on behalf of the company

Letka Team, a. s., a contract on the sale of cigarettes, while he was

aware at the time of the sale that the given company would not return

the value added tax from such a transaction; Letka Team, a. s., with the

intention of concealing that such a taxable transaction had taken

place, did not declare in their VAT return for March 2007 such tax and

did not pay such tax to the tax administrator, whereby the company

caused the Czech Republic, represented by the Tax Office in Pardubice, a

loss of CZK 118,833,833.20.

On 18 June 2008, on the basis of

orders for searches pursuant to § 83 paragraph 1 of the Criminal

Procedure Code issued by the District Court for Prague 8 on 17 June 2008

under file No. Nt 1507/2008, searches with respect to the

above-specified criminal case were carried out at the premises of a

house in L., owned by Mgr. V. T. S., and the premises of the “T. a

PARTNEŘI” law office, and at premises belonging to the same. The above

searches were conducted in the presence of Mgr. T. R., an attorney at

law, appointed on 17 June 2008 by the Czech Bar Association (hereinafter

referred to also as the “Association”) to be the representative of the

Association assigned to the search of the house and the search of other

premises at which the attorney at law practises the legal profession,

pursuant to § 85b paragraph 1 of the Criminal Procedure Code. With

respect to the fact that documents (specified in records on execution of

a search dated 18 June 2008) which might contain facts covered by the

obligation on the part of the attorney at law to maintain

confidentiality were seized at the given premises, and JUDr. J. T. did

not grant consent for their release, the police body carrying out the

search requested that such consent to familiarisation with the contents

of the documents be given by the representative of the Association, in

accordance with § 85b paragraph 1, part two, of the Criminal Procedure

Code. The representative of the Association did not agree to such a

request and refused to grant consent. Subsequently, said documents,

computers and related equipment seized, including data carriers, were

registered, secured, sealed and (with respect to technical problems)

handed over on 20 June 2008 to the Association at its office on Národní

16, Prague 1.

As the Constitutional Court further ascertained

from the files, the District Court for Prague 8, on 25 June 2008,

forwarded to the Municipal Court in Prague, as the materially competent

court, a memorandum from the Police of the Czech Republic, Department

for Detection of Corruption and Financial Criminality, the Criminal

Police and Investigation Service, Tax and Money Laundering Section,

dated 19 June 2008 (amended with a filing dated 24 June 2008), entitled

“demand for filing a petition according to § 85b paragraph 4 of the

Criminal Procedure Code”, in which the police body proposes that the

District Court for Prague 8, in relation to more closely specified

items, file a petition pursuant to § 85b paragraph 3 of the Criminal

Procedure Code (with reference to § 85b paragraph 4 of the Criminal

Procedure Code) with its court of immediate superiority for issue of a

decision, whereby the court would substitute for consent from the

representative of the Association. The above-mentioned demand devolved

to the Municipal Court in Prague under file No. Nt 601/2008, and the

judge of the same court responded to the same promptly in her

notification dated 26 June 2008, in which she declared that the filing

cannot be taken into account. According to the judge of the Municipal

Court, it was in no way possible, with reference to the wording of § 85b

paragraphs 4 and 6 of the Criminal Procedure Code, to evaluate the

forwarded demand by the police body as a petition pursuant to the

provisions quoted, be it by designation or contents, and she pointed out

that in this specific case, the District Court for Prague 8 is solely

competent to file the petition.

On 27 June 2008, the Municipal

Court in Prague received another memorandum on the case in question,

this time directly from a judge of the District Court for Prague 8,

entitled “demand for procedure pursuant to § 85b paragraph 4 of the

Criminal Procedure Code”. As is clear from the petition, the contents of

the same were identical to those of the previous demand by the police

body, only they had been amended with reasons for substituting consent

from the representative with a decision by a court, which, in the

opinion of the judge of the District Court, consisted of the

circumstance that facts important for criminal proceedings could be

ascertained from the items seized during the searches; these in

particular with regard to documenting said criminal activities and the

shares of the individual perpetrators in committing the same. According

to the judge of the Municipal Court, to whom the case was newly

allocated under file No. Nt 602/2008, it was not possible to grant the

petition. As she declared in the reasoning for her notification dated 30

June 2008, conditions pursuant to § 85b paragraph 4 of the Criminal

Procedure Code were not met with respect to any of the documents seized.

In her opinion, the petition in particular lacked identification of

which specific circumstances should be ascertained from the documents

seized, and what specifically remains to be clarified in connection with

the criminal activities for which the complainant is being prosecuted,

and through the use of which pieces of evidence such clarification is to

be conducted, so that infringements of the rights of the clients of the

complainant are really prevented to the maximum degree. At the same

time she expressed her doubt whether the condition to justify the

procedure pursuant to § 85b paragraph 3 et seq. of the Criminal

Procedure Code had actually been met at all, when the relevant files do

not make it clear whether qualified denial of consent from the

representative of the Association actually took place, and whether the

petition above had not thus been filed early.

On 14 July 2008,

the Municipal Court in Prague received a third petition (drawn up and

dated on the same day), whereby the judge of the District Court for

Prague 8 repeatedly proposed that the Municipal Court in Prague decide

pursuant to § 85b paragraph 3 of the Criminal Procedure Code. This

petition was dealt with by the Municipal Court in Prague under file No.

Nt 603/2008. In the petition specified above, the judge of the District

Court firstly dealt with the requirement for identification and

specification of particular documents which were to be, in a manner

detailed in § 85b paragraph 3 of the Criminal Procedure Code, made

accessible to the police body for study, and stated that this

requirement was, with respect to the extraordinarily large volume of

data, completely unrealistic. Therefore, they proposed that a public

session pursuant to § 85b paragraph 7 of the Criminal Procedure Code be

ordered in the given case for the purpose of familiarisation with the

documents through a full text search for key words related to the act

for which the criminal prosecution had been initiated. At the same time

they informed the court that, on 9 July 2008, a statement by the

Association, confirming that at that time the police body was not

entitled to familiarise itself with the contents of the documents which

had been seized during the searches, was delivered to the relevant

police body.

As was further ascertained by the Constitutional

Court from the contents of the files, in the case of the petition

administered under file No. Nt 603/2008, the Municipal Court in Prague

ordered public sessions to be held on 19th, 21st, 26th and 28th August

2008, and at the same time requested the Association to submit the

documents seized. Due to the impossibility of an official takeover of

these seized items in sealed packages, the public session was, on 19

August 2008, adjourned indefinitely for the purpose of detailing reports

on handing over the items. Therefore, the Association was on 20 August

2008 requested by the court that they, by 5 September 2008, in

co-operation with the police investigator and the Public Prosecutor,

specify the contents of packages Nos. 1 to 9. To this request, the

Association responded with a letter dated 2 September 2008, wherein they

informed the Court that they could not oblige the request as through

such an act the law would be violated. They stated that the only task of

the Association, once the sealed packages containing the seized

documents had been handed over to them, was to deposit the same in such a

way that no person had access to them, and to hand over the same to the

court upon request. In the meantime, the Association cannot in any way

handle the documents, in particular they must not disturb the documents’

security precautions (the seals), this not even in the presence of or

in co-operation with the bodies of the police and the Public Prosecutor,

and subsequently repeatedly safeguard these documents. The file further

shows that on the same date, the complainant himself submitted his

opinion to the request, and, with reference to the wording of § 85b

paragraph 6 of the Criminal Procedure Code, objected that specification

of the contents of the packages may result in a single possible

situation, this being amendment to the petition, while the court, under

the given circumstances, must not take such a petition into

consideration any longer anyway. On the same day, the complainant was

informed by the Chairwoman of the Panel of the Municipal Court that the

petition under consideration possessed all the necessary requirements

pursuant to § 85b paragraph 4 of the Criminal Procedure Code, and that

she insisted on the contents of the sealed packages being made more

specific.
 
By a notification dated 8 September 2008, the

Association was again requested to submit the seized documents for a

public session held on 2nd, 4th, 8th and 11th December 2008. On the

basis of this request, the complainant sent, on 12 September 2008, a

request, justified in detail, to the Municipal Court in Prague, in which

he proposed that the court remedy its hitherto course of action, annul

the public session already ordered, and immediately inform the

petitioner and the Association that it does not take into consideration

the petition dated 14 July 2008 due to the same being late.

On 8

October 2008, the Association sent to the Municipal Court in Prague a

request that the Court declare whether it would actually consider the

petition dated 14 July 2008 as one that had been filed late. The

Association particularly emphasised that it was obliged, pursuant to §

85b paragraph 2 of the Criminal Procedure Code, to return the seized

documents to the attorney at law after the term, according to paragraph 5

of the same provisions, for filing the petition expired with no effect.

The Association was requested by the complainant to return the same. In

the opinion of the Chairwoman of the Panel of the Municipal Court,

communicated to the Association in a memorandum dated 13 November 2008,

the petition could not be considered late.

By a letter dated 27

November 2008, the Association informed the Court that, with respect to

the fact that a constitutional complaint had been filed regarding the

course of action taken by the Municipal Court in Prague in case file No.

Nt 603/2008, in which the lateness of the petition being considered is

claimed, the Association should not submit the documents safeguarded and

deposited with the same to the public sessions ordered and should wait

for the decision of the Constitutional Court. At the same time it added

that the Association would neither release such documents to the

complainant, so that the Association would not obstruct the results of

the criminal proceedings should the Constitutional Court not grant the

constitutional complaint. The Chairwoman of the Panel, by a letter dated

27 November 2008, informed the Association that she insisted on having

said documents submitted, since she by then had not received any

decision by the Constitutional Court dictating that the Court remain

inactive. In spite of such a request, the seized documents were not

presented by the Association during the public session held on 2

December 2008, and the session was adjourned indefinitely. Since the

Association did not observe the request by the Court, the Municipal

Court in Prague, during its session, imposed on the President of the

Association a procedural fine of CZK 30,000. A complaint was filed

against such a fine there and then; the High Court in Prague decided on

such a complaint and ruled that the fine at the given amount should be

imposed upon the Association directly, not the President of the

Association.
 


III.
 

Pursuant

to the provisions of § 42 paragraph 4 of the Act on the Constitutional

Court, the Constitutional Court asked a party to the proceedings, the

Municipal Court in Prague, and the secondary parties to the proceedings,

(1) the Czech Bar Association, (2) the District Court for Prague 8, (3)

the High Public Prosecutor’s Office in Prague, and (4) the Police of

the Czech Republic, Department for Detection of Corruption and Financial

Criminality, to submit opinions on the constitutional complaint being

examined.

On the basis of this request, the Chairwoman of the

relevant Panel of the Municipal Court in Prague submitted, on 27

February 2009, her opinion on the constitutional complaint filed. She

informed the Constitutional Court that she considered the petition by

the District Court for Prague 8 submitted on 24 June 2008, and

thereafter with clarifications as required by the chairwomen of panels

in their notifications, to be a petition filed within the term specified

in § 85b, paragraph 5 of the Criminal Procedure Code. She does not

consider the filings dated 27 June 2008 and 14 July 2008 to be new

filings, with respect to the contents of the filing dated 24 June 2008

and requests by her colleagues for amending such a petition. In terms of

their merits, they form one single petition. The Chairwoman of the

Panel, as she stated herself, did not comment on other objections of the

complainant.
 
In its statement dated 17 March 2009, the Czech

Bar Association stated that the constitutional complaint by the

complainant is justified. They believe that, in relation to the criminal

prosecution of the complainant, the bodies involved in criminal

proceedings markedly erred as concerns the seized documents, including

information carriers. As for the Association’s position in the given

case, they stated that as an entity exercising public administration the

Association is obliged to see that legal regulations are observed, must

not proceed or make decisions unlawfully, or participate in unlawful

procedures and unlawful decisions of other bodies. The fact that the

Association is a special entity within criminal proceedings, endowed

with certain powers, results from § 85b paragraph 2 of the Criminal

Procedure Code, under which the Association shall return to the attorney

at law documents without delay after the term for filing the petition

pursuant to paragraph 5 ceases without any effect. The Association needs

neither instruction nor consent from a court to proceed in such a way;

that means that the Association makes such a decision totally

independently after its own assessment of the given circumstances. The

Association in its statement objects that firstly, with sufficient time

in advance, it notified the court of doubts on compliance with the term

for filing the given petition. Only when the court declared that they

insisted on submitting the documents and other items, and only when the

complainant proved that he had filed a constitutional complaint

concerning the actions taken by the court, when the Association believes

such a constitutional complaint is justified, the Association elected

to follow such a course of action which eliminated its participation in

actions by relevant bodies not in compliance with the law. The

Association notified the court of this opinion and the reasons therefor.

In spite of this, the court asked the Association to submit the given

documents and when such a request was not met, the court imposed a fine

on the President of the Association. Upon a complaint by the President

of the Association, the resolution that imposed the fine was annulled by

the High Court in Prague, and substituted with one imposing the fine on

the Association. However, such procedure is also in conflict with the

law and constitutional principles, as the same forces a body of public

administration to proceed unlawfully. At the end of its statement, the

Association proposed that the Constitutional Court grant the

constitutional complaint of the complainant.

The High Public

Prosecutor’s Office in Prague, in its statement dated 19 March 2009,

firstly incorporated their doubts regarding the actual refusal of

consent from a representative of the Association, the vagueness of which

then had influence, in the opinion of the High Public Prosecutor’s

Office, on the following procedures taken by the Municipal Court in

Prague. Furthermore, the High Public Prosecutor’s Office in Prague

referred to incorrect measures taken by the Association when taking

receipt of the seized documents from the police body, when, according to

the Prosecutor’s Office, the Association unreasonably refused to sign

the handover documentation prepared, which, in consequence, resulted in

the fact that such receipt did not take place in respect of the seized

items between the Association and the Municipal Court in August 2008,

prior to the actual public session. The High Public Prosecutor’s Office

in Prague expressed the opinion that the course of action taken by the

Municipal Court in case file No. Nt 602/2008 had no support in the

provisions of the Criminal Procedure Code; the petition complied with

all the statutory requirements, and no more detailed identification was

at all objectively possible, taking into account the fact that the same

documents were sealed and handed over to the Association. The High

Public Prosecutor’s Office in Prague, therefore, infers that the

Municipal Court was not entitled to declare that it would not take the

given petition into account. In addition, the filing dated 14 July 2008

contains only information which is not compulsory for proper filing of a

petition; such a filing only newly proposed a procedure for assessing

the seized documents during a public session, which the judge of the

Municipal Court would be able to manage in terms of the capacity of such

an office. The High Public Prosecutor’s Office in Prague is of the

opinion that the petition dated 27 June 2008 was faultless from the

procedural viewpoint, and the following petition dated 14 July 2008 was

merely a specification of the original one. The Municipal Court is

obliged to make a decision on the petition. The fact that the judge of

the Municipal Court intends to hold a further public session on the

seized documents, pursuant to § 85b of the Criminal Procedure Code,

cannot cause any violation of the constitutionally guaranteed

fundamental rights and basic freedoms of the complainant. Therefore, the

High Public Prosecutor’s Office in Prague proposed that the

Constitutional Court should completely dismiss the constitutional

complaint by the complainant. At the end of its statement, the High

Public Prosecutor’s Office in Prague raised an objection of prejudice on

the part of constitutional justice Stanislav Balík for reasons

specified in § 36 paragraph 1 of the Act on the Constitutional Court.

The

District Court for Prague 8 and the Police of the Czech Republic,

Department for Detection of Corruption and Financial Criminality have

waived, by letters dated 16 and 19 March 2009 respectively, their

positions as secondary parties in proceedings on the constitutional

complaint.
 


IV.
 

On

6 May 2009, the Constitutional Court decided on the objection of

prejudice on the part of Justice Stanislav Balík, raised by the High

Public Prosecutor’s Office in Prague, in such a way that Justice

Stanislav Balík was not excluded from the hearing of the case

administered by the Constitutional Court under file No. II. ÚS 2894/08.
 


V.


As

for the petition by the complainant for the issue of a preliminary

injunction, the Constitutional Court could not grant the same. Through a

petition for a preliminary injunction under § 80 of the Act on the

Constitutional Court, the complainant demanded that the Constitutional

Court should issue a decision whereby the Constitutional Court would

impose on the Municipal Court in Prague that the same court, until a

decision is made on the constitutional complaint, should not continue in

such infringement. However, as is implied from the very nature of the

case in which the petition was filed, granting such a petition would

effectively mean a decision on the merits of the case, and any further

proceedings on the constitutional complaint would thus become completely

groundless.
 


VI.
 

Pursuant

to the provisions of § 72 paragraph 1, clause a) of the Act on the

Constitutional Court, a constitutional complaint may be submitted by a

natural person or legal entity if they allege that their

constitutionally guaranteed fundamental right or basic freedom was

violated by a legally effective decision, measure or some other

encroachment by a body of public power. In the matter under assessment,

the complainant protests against “other encroachment by a body of public

power”, specifically against the procedure applied by the Municipal

Court in Prague in the case administered under file No. Nt 603/2008, on a

petition for substitution of consent from a representative of the Czech

Bar Association under § 85b paragraph 3 of the Criminal Procedure Code,

when such a court unreasonably ordered a public session and thus

hindered the secondary party from releasing documents in both printed

and electronic form.

If the Constitutional Court grants the

constitutional complaint aimed against other encroachment by a body of

public power, the Constitutional Court shall “enjoin the authority from

continuing to infringe this right or freedom and order it, to the extent

possible, to restore the situation that existed prior to the

infringement” [§ 82 paragraph 3, clause b) the Act on the Constitutional

Court].

The Constitutional Court has previously adjudicated (for

example, file No. IV. ÚS 349/99 at nalus.usoud.cz) that within

the stage of preparatory proceedings, a procedural action or a decision,

such as a resolution on initiation of a criminal prosecution or a

decision on placement in custody, may be subjected to review by the

Constitutional Court only under a circumstance of infringement of

fundamental rights and basic freedoms taking place which would not be

reparable otherwise (such as, for example, placement in custody,

detention, detention and opening of consignments and suchlike). The

point is that the system of constitutional judiciary is based in

particular on the principle of reviewing cases which have been legally

effectively concluded, in which unconstitutionality cannot be remedied

in any other way, that is firstly through procedural means which are

provided by the relevant procedural norms regulating any given

proceedings. The powers of the Constitutional Court thus especially

relate to legally effective decisions by bodies of public power. The

right to review some other encroachment by a body of public power is

given only under the condition of a remedy being unfeasible in any other

manner. The term “other encroachment” by a body of public power must be

understood in such a way that the same represents endangerment of the

existing status, when such an attack in itself is not an expression or a

result of proper decision-making powers of such bodies, as such exceeds

standard review proceedings or other types of proceedings and,

therefore, such an attack cannot be opposed in any other way than

through a constitutional complaint.

The Constitutional Court

states that the facts mentioned above make it possible to conclude that

the contested decision is, in relation to the complainant, of the nature

of “other encroachment” by a body of public power and is capable of

infringing the fundamental rights of the complainant, while no means of

remedy is available to the complainant other than a constitutional

complaint. Therefore, the Constitutional Court has subjected the course

of action employed by the court to substantive review and concluded that

the constitutional complaint is justified.
 
The Constitutional

Court wishes to say that it has, in earlier decisions, dealt with the

conditions of actions of bodies involved in criminal proceedings during

searches of homes and searches of other premises at which an attorney at

law practises the legal profession. In its Resolution dated 21 January

1999, file No. III. ÚS 486/98, the Constitutional Court responded, inter

alia, to an objection that through steps taken by a police body during a

search of other premises, the provisions of § 21 of the Act on the

Legal Profession, regulating the obligation of the attorney at law to

maintain confidentiality on all facts of which they learn in connection

with the provision of legal services, were violated. The Constitutional

Court stated that the statutory obligation to maintain confidentiality

pertaining to the attorney at law is an obligation imposed by the state,

and, therefore, also a generally protected one (§ 21 of the Act on the

Legal Profession). At the same time, the Constitutional Court emphasised

that it is not a privilege of the attorney at law which should

establish an exemption from the generally valid legal order, but it is

an obligation imposed on the attorney at law in the interest of their

clientele and for the protection of the same, and such an obligation, in

this sense and to this scope, also enjoys appropriate protection. In

the decision specified above, the Constitutional Court also stated that

if, in contradiction with the procedural state of the case, the police

bodies detain a computer’s central processing unit removed from the

attorney at law within the scope of a search, even though such a unit

should have been released, then such a fact relates not only to the

constitutionally guaranteed fundamental right pursuant to Article 36

paragraph 1 of the Charter, but also the right established by Article 11

paragraph 1 of the Charter.
 
This decision was followed by a

Resolution of the Constitutional Court dated 28 March 2002, file No. IV.

ÚS 2/02 (published in Collection of Judgments and Rulings of the

Constitutional Court, Volume 25, No. 11, p. 385 et seq.), in which the

Court stated that in executing a search of other premises, when order

for the same was based on compliance with statutory conditions,

computers, relevant equipment and recording media, and possibly copies

of the same may be seized as items important for criminal proceedings,

even when there is a possibility that the seized information carriers

contain, in addition to records on facts important for criminal

proceedings, also information on facts which do not relate to criminal

proceedings under progress, and to which the state-imposed or

state-acknowledged obligation to maintain confidentiality relates. At

the same time the Court emphasised, however, that it is self-evident

that it is necessary to proceed in accordance with the principles of

proportionality and restraint (§ 2 paragraph 1 and § 52 of the Criminal

Procedure Code) which consist of the fact that bodies involved in

criminal proceedings will infringe the fundamental rights and interests

protected by law on the part of such persons against whom criminal

proceedings are not administered to the least possible extent.

The

provision of sufficient safeguards of national law for the protection

of a confidential relationship between the attorney at law and their

clients was commented on, when interpreting Article 8 of the Convention

on the Protection of Human Rights and Fundamental Freedoms (hereinafter

referred to only as the “Convention”), also by the European Court of

Human Rights, which, for example in the case of Niemitz v. Germany

(Judgment dated 16 December 1992, A/251-B, § 30), dealt with a search

undertaken at an office of an attorney at law and, amongst other points,

emphasised the necessity of procedural safeguards against

disproportional infringements of professional secret, non-compliance

with which may have an adverse impact on proper execution of justice and

on the trust of clients towards the attorney at law.
 


VII.
 

As

an introduction it is necessary to state that, as results from the

appended files, the searches in question were ordered in accordance with

the provisions of § 83 of the Criminal Procedure Code. The order for

such searches was issued within the scope of the preparatory proceedings

by a judge, was given in writing, the premises at which the searches

were to be executed were specified, and the order was substantiated. The

constitutional complaint was not aimed against the orders for the

execution of the searches alone.
 
In the given case, the essence

of the objections of the complainant consists of the fact that within

the scope of the searches at the residence of the attorney at law and

the premises of his office, on 18 June 2008, written and other documents

were seized, with respect to which the representative of the

Association did not grant consent pursuant to § 85b paragraph 1 of the

Criminal Procedure Code; it was possible to substitute such consent only

through a decision of a court upon a petition by the body which ordered

said search to take place. The complainant is convinced that the

repeated petition, which is registered by the Municipal Court in Prague

under file No. Nt 603/2008, was filed late, pursuant to § 85b paragraph 5

of the Criminal Procedure Code. According to the complainant,

therefore, the court should have proceeded pursuant to § 85b paragraph 6

of the Criminal Procedure Code, should not have taken the petition into

account and should not have ordered a public session for hearing such a

petition. Therefore, the Constitutional Court dealt with the fact

whether the course of action employed by the Municipal Court in Prague

in case file No. Nt 603/2008, or the interpretation of the provisions of

§ 85b paragraph 6 of the Criminal Procedure Code employed by the same

court, constituted or not an inadmissible infringement of the

complainant’s constitutionally guaranteed rights.
 
As has already

been emphasised in the case law of the Constitutional Court, the

reference criterion for the Constitutional Court is not constituted by

ordinary law, but constitutionally guaranteed fundamental rights

resulting both from the Charter and from international treaties on human

rights and basic freedoms. The fundamental rights and freedoms in the

sphere of ordinary law indeed function as regulative ideas, wherefore

the complexes of norms for ordinary law work as a sort of contentual

superstructure. Interpretation and application of norms of ordinary law

cannot be conducted totally autonomously, that is irrespective of the

protection of the fundamental rights of an individual resulting from

norms of the constitutional order of the Czech Republic.
 
Interpretation

and application of regulations of general law is unconstitutional if

the same inadmissibly aggrieves any of the fundamental rights and basic

freedoms, possibly omits other possible interpretation – a

constitutionally conforming one – or is an expression of clear and

unjustified aberration from the standards of interpretation as respected

in judicial practice (and so represents unpredictable arbitrariness in

interpretation), or is in conflict with the generally shared principles

of fairness (cf. decision in case file No. III. ÚS 269/99).

In

the case under consideration the Constitutional Court found out that on

18 June 2008, on the basis of orders for searches pursuant to § 83

paragraph 1 of the Criminal Procedure Code, the above-specified searches

at the premises of the house and law office of the complainant were

conducted. A properly appointed representative of the Association was

present at the searches mentioned above. With respect to the nature of

the documents seized, the release of which was not approved by the

complainant, the police body conducting the search asked that consent be

granted by the representative of the Association with respect to

familiarisation with the contents of said documents. The representative

of the Association refused to grant such consent. The Constitutional

Court further ascertained that subsequently the seized documents were

handed to the Association. Thereafter, three petitions pursuant to § 85b

paragraph 3 of the Criminal Procedure Code were consecutively sent to

the Municipal Court in Prague. The Municipal Court in Prague decided on

the first petition, dated 19 June 2008, administered under file No. Nt

601/2008, by a Notice dated 26 June 2008 and ruled that said filing

should not be taken into consideration. As for the second petition,

dated 26 June 2008, administered under file No. Nt 602/2008, the

Municipal Court in Prague, in a Notice dated 30 June 2008, stated that

again the petition could not be granted, this for uncertainty of the

same. The petition, third in the sequence, filed with the Municipal

Court in Prague on 14 July 2008, is administered under file No. Nt

603/2008 and is the subject of the constitutional complaint presently

under examination.
 
According to § 85b paragraph 1 of the

Criminal Procedure Code, when a search of a home or search of other

premises is conducted with respect to premises at which an attorney at

law practises the legal profession, if such premises may hold documents

which contain facts covered by the obligation of an attorney at law to

maintain confidentiality, the body conducting the official act is

obliged to request participation by the Czech Bar Association; the body

conducting the official act is entitled to familiarise themself with the

contents of such documents only in the presence of and upon consent

from a representative of the Association, who is appointed by the

President of the Association from amongst the number of its employees or

attorneys at law. The standpoint of such a representative of the

Association must be specified in the record pursuant to § 85 paragraph 3

of the Criminal Procedure Code. According to § 85b paragraph 2 of the

Criminal Procedure Code, should the representative of the Association

refuse to grant consent according to paragraph 1, the documents must be,

in the presence of the body conducting the official act, the attorney

at law and the representative of the Association, safeguarded in such a

way that no person may familiarise themself with the contents of such

documents, or destroy or damage the same; immediately thereafter, the

given documents must be handed over to the Association.

In

accordance with § 85b paragraph 3 of the Criminal Procedure Code, in the

case specified in paragraph 2, the first sentence, consent from a

representative of the Association may be substituted, upon a petition

from the body which ordered the search of a home or search of other

premises, with a decision of a judge of a court of immediate superiority

employing a chairperson of a panel or a judge, who is entitled,

pursuant to § 83 paragraph 1 and § 83a paragraph 1, to order a search of

a home or a search of other premises. According to § 85b paragraph 5 of

the Criminal Procedure Code, such a petition must be filed within a

period of 15 days from the date when the representative of the

Association refused to grant consent to familiarisation with the

contents of the documents.
 
According to § 85b paragraph 6 of

the Criminal Procedure Code, the judge shall not take into consideration

a petition which does not contain all the items required or which is

incomprehensible or uncertain; the provisions of § 59 paragraph 4, the

third and fourth sentences, shall not be applied. The judge proceeds

analogously if the petition is filed late or by a person who is not

entitled to file such a petition. The judge shall inform without delay

the petitioner and the Association of this course of action. According

to § 59 paragraph 4, the third and fourth sentences of the Criminal

Procedure Code, if (note: the filing) fails to meet the above

requirements, the body involved in criminal proceedings shall return the

same to the sender, if the sender is known, so that the same may be

amended, together with relevant instructions on how to rectify the

deficiencies. At the same time, they shall specify a term for such

rectification.
 
The obligation to maintain confidentiality is the

basic precondition for the provision of legal aid and thus a necessary

condition for a democratic society to function. The practice of the

profession of an attorney at law is based on a confidential relationship

between the attorney at law and the client, and on the trust of the

client in the confidentiality of the attorney at law. The Constitutional

Court has stated earlier that this is in no instance a privilege of the

attorney at law which should be the basis for exemption from a

generally valid and binding legal order, but it is an obligation imposed

on the attorney at law in the interests of their clients and for their

protection. In such a sense, professional secret and maintaining the

same by the attorney at law is endowed with relevant protection, this

particularly in situations when such an obligation by the attorney at

law may be endangered, for example, precisely in cases such as a search

of a home of an attorney at law or at their office.

As is

implied from the explanatory report to the amendment to the Criminal

Procedure Code, made by Act No. 79/2006 Coll., the provisions of § 85b

mentioned above, which regulate the course of action taken by state

bodies conducting searches and by the Association in the case that the

documents seized could be covered by the obligation on the part of the

attorney at law to maintain confidentiality, were incorporated in the

Criminal Procedure Code in the interest of protection and legal

certainty of clients of the given attorney at law. The rights of third

parties are, within this procedure, in the first place protected by the

representative of the Association, the task of whom is to voice their

opinion on the nature of the documents seized and the possibility of

their release. The reasons for which the representative of the

Association might refuse to give consent to familiarisation with the

documents may be reviewed solely by a court, this only upon a petition

to this effect, the contents of which are defined by paragraph 4 of the

above-specified provisions, and which must be filed within a period of

15 days from the refusal to grant consent from the representative of the

Association. It is necessary to emphasise that possible substitution of

consent from a representative of the Association with a decision by a

judge can be in no case interpreted as a possibility of relieving the

attorney at law of the obligation to maintain confidentiality concerning

data contained in the documents seized. The reason for substituting

such consent generally consists only of the fact that the obligation to

maintain confidentiality does not apply to such documents.
 
In

the matter now under consideration, there is no need to doubt that the

representative of the Association on the day when the searches took

place, that is 18 June 2008, refused to grant consent for

familiarisation by the police body conducting the home search with the

contents of the documents seized. In spite of the fact that the relevant

records on the searches do not contain a specific refusal of the given

consent of the representative of the Association (the representative of

the Association only stated “that he believes that the seized documents

should be handed by the police body to the Association”), such a

circumstance must be interpreted in such a way that if the

representative of the Association did not grant the consent explicitly,

then such consent was not granted at all. The course of a term of 15

days for filing a petition pursuant to § 85b paragraph 3 of the Criminal

Procedure Code, whereby dissent of the representative of the

Association could possibly be overruled, results from the provisions of §

60 paragraph 1 of the Criminal Procedure Code, according to which the

term specified in days does not include that day on which the event

determining the commencement of the term (refusal of the consent) took

place. This term must be observed by the petitioner, since the procedure

pursuant to § 61 paragraph 1 of the Criminal Procedure Code, whereby

the court might possibly restore the term, is, due to the nature of the

case, inapplicable here, as this is not a remedy of a defendant or their

defence counsel, and also, the provisions of § 85b paragraph 6 of the

Criminal Procedure Code explicitly bar prolongation of such a term

through the action of a court according to § 59 paragraph 4, the fourth

sentence of the Criminal Procedure Code. As the term in the case under

consideration commenced on 19 June 2008, it ceased on 3 July 2008. From

the provisions of § 85b paragraph 6 of the Criminal Procedure Code it

may be inferred that solely within this period of time it was possible

to file a faultless petition which the court could hear, since the

possibility of removing errors in the petition in an additionally

provided term was thereby unambiguously eliminated.

The

Constitutional Court declares that when the petition in the case under

consideration was filed on 14 July 2008 with the Municipal Court in

Prague, then it was not possible to consider said petition, with respect

to the unambiguous interpretation of the provisions of § 85b paragraph 6

of the Criminal Procedure Code, to be a mere amendment to previous

petitions, which the court earlier had not taken into consideration and

on which the court had not decided at all, but a separate petition,

where the requirements for such a petition and the terms and conditions

for filing the same should have been examined by the court as to the

date of the filing of the petition. When such petition was, as detailed

above, filed late, the Municipal Court in Prague should not have taken

the same into account and dealt with the same, of which the court should

have informed the Association and the complainant without delay. The

opposite interpretation of the provisions in question, employed by the

Municipal Court in Prague in its actions taken in the case being

adjudicated, has deviated from the standards of interpretation and thus

also from the boundaries of constitutionality. The Municipal Court in

Prague interpreted the provisions above not only in contradiction with

the purpose of the same, but also in conflict with their linguistic

interpretation, whereby the court inadmissibly infringed the

complainant’s constitutionally guaranteed right to judicial protection

according to Article 36 paragraph 1 of the Charter.
 
The relevant

records on conducting the searches further make it clear that during

the same, almost ten computers were detained, as well as hard disks and

mobile phones, which, in conflict with the above-specified procedural

state of the case, it has not been possible to return to the complainant

to the present time, whereby also the complainant’s constitutionally

guaranteed right to own property pursuant to Article 11 paragraph 1 of

the Charter has been undoubtedly aggrieved.

In this connection it

is impossible to omit that the complainant has in no way lost his

authorisation to practise the legal profession. The complainant, on a

permanent basis and for a fee, provides legal aid as an attorney at law

as his vocation; within his activities, liabilities (and receivables)

arise or may arise towards clients, the rights and legitimate interests

of whom he is obliged to protect and enforce (§ 16 of the Act on the

Legal Profession). The nature of his activities, therefore, relates to

both the interests of the complainant and those of other parties. The

provisions of § 3 paragraph 1, the first sentence of the Act on the

Legal Profession, establish the fundamental principle for practising the

legal profession, that is independence of the attorney at law. This

independence works primarily to the benefit of clients of the attorney

at law, and is not a privilege of the attorney at law, but rather its

protection is the attorney’s obligation relating to the practice of

their profession. Breaking the independence of an attorney at law

without statutory reasons then means an infringement both of the rights

of the clients and of synallagmatically established obligations and

rights of the attorney at law related to the practice of their

profession. In the given case, the matter concerns not only detaining

the computers and related equipment, but also the information and

documents stored on such computers, which the attorney at law is obliged

by law to reasonably keep on file with respect to the provision of

legal services (§ 25 paragraph 1 of the Act on the Legal Profession),

and which they necessarily need for the proper practice of the legal

profession. Clearly, these circumstances necessarily restrain the

complainant in his activities and ability to discharge his obligations

in the provision of legal aid, this beyond the scope of fulfilling the

purpose of the criminal proceedings (§ 1 paragraph 1 of the Criminal

Procedure Code). Therefore, as a consequence, the above-specified course

of action taken by the Municipal Court in Prague also represents an

infringement of the complainant’s right to engage in commercial and

economic activity under Article 26 paragraph 1 of the Charter. The point

is that this right includes also the obligation on the part of the

bodies involved in criminal proceedings to respect the attorney at law’s

obligation to maintain confidentiality, serving to protect the clients

of the attorney at law, and thus the confidentiality of the attorney at

law as a precondition for the practice of the legal profession, the same

forming the attorney at law’s business.

For the reasons

specified above, the Constitutional Court grants the constitutional

complaint and in accordance with the provisions of § 82 paragraph 1,

paragraph 2 clause a), and paragraph 3 clause b) of the Act on the

Constitutional Court declares that:
I.) the Constitutional Court

enjoins the Municipal Court in Prague from continuing to violate the

constitutionally guaranteed rights of the complainant guaranteed by

Article 36 paragraph 1, Article 26 paragraph 1, and Article 11 paragraph

1 of the Charter of Fundamental Rights and Basic Freedoms;
II.) the

Constitutional Court orders the Municipal Court in Prague to cease

inhibiting the Czech Bar Association from returning to the complainant

the deposited documents seized during searches held on 18 June 2008 and

specified in detail in records on conducting the searches dated 18 June

2008, ČTS: OKFK-182/TČ-2008-18 and ČTS: OKFK-182/TČ-2008-18-B.

Note: Decisions of the Constitutional Court cannot be appealed.