On 26 February 2009, Act No. 52/2009 Coll., amending Act No. 141/1961 Coll., on Criminal Court Proceedings, as amended (hereinafter referred to as the “Criminal Procedure Code”), Act No. 140/1961 Coll., the Criminal Code, as amended (hereinafter referred to as the “Criminal Code”), Act No. 200/1990 Coll., on Misdemeanours, as amended (hereinafter referred to as the “Act on Misdemeanours”), and Act No. 101/2000 Coll., on the Protection of Personal Data, as amended (hereinafter referred to as the “Act on the Protection of Personal Data”), was published in the Collection of Laws.
Act No. 52/2009 Coll. (hereinafter referred to as the “amendment to the Criminal Procedure Code”) brought, with effect from 1 April 2009, changes relating primarily to three basic areas governing in particular:
general conditions for the provision of information about criminal proceedings by law enforcement authorities to the public in preparatory proceedings,
conditions for the publication of information about an injured party under 18 years of age and his close persons,
prohibition on the publication of intercepts and records of telecommunications traffic without the consent of the person concerned.
From the outset of its approval by the Parliament of the Czech Republic, the amendment to the Criminal Procedure Code, into which Members of Parliament led by Marek Benda “smuggled” at the last moment such a sensitive provision as Section 8c of the Criminal Procedure Code concerning intercepts and records of telecommunications equipment, divided the Czech professional and lay public into two parts. Critics of this legislative change, particularly from the ranks of the media, point to the apparent restriction of constitutionally guaranteed rights and freedoms of expression and the right to information of the media when reporting on criminal proceedings, criminal offences and their perpetrators.
Provision of information in preparatory proceedings The amendment to Section 8a of the Criminal Procedure Code regulating the provision of information about criminal proceedings, in the sense of the principle of the presumption of innocence, prohibits law enforcement authorities from publishing information in preparatory proceedings that would enable the identification of the person against whom criminal proceedings are being conducted, the injured party, an interested person and a witness. Such publication of information may be provided to the necessary extent only for the purposes of searching for persons or for achieving the purpose of criminal proceedings. Preparatory proceedings means, within the meaning of Section 12(10) of the Criminal Procedure Code, the stage of proceedings from the drawing up of a record of the commencement of acts in criminal proceedings, the performance of urgent and unrepeatable acts immediately preceding it and, if not performed, from the commencement of criminal prosecution to the filing of an indictment or to another decision on the merits by law enforcement authorities. The amendment to this provision newly emphasises the need to take into account, when providing information, in particular the interests of minors, i.e. persons under 18 years of age.
It follows, inter alia, from the amendment to the above-mentioned provision that in the so-called “pre-trial stage” of criminal proceedings it is newly prohibited for police officers and public prosecutors to publish any information that would enable the identification of even an adult suspect or accused. The existing legal regulation thus protects only a juvenile offender, namely by Act No. 218/2003 Coll., on the Liability of Youth for Unlawful Acts and on Juvenile Justice, as amended (hereinafter referred to as the “Act on Juvenile Justice”), which establishes a prohibition on publishing the name and surname or other data about a juvenile offender or a child under 15 years of age who has committed an offence that would enable his identification. According to some views, this amendment to the Criminal Procedure Code is superfluous, since law enforcement authorities have hitherto generally been under an obligation to inform the media about its course in such a way as not to jeopardise the investigation and the course of the entire criminal proceedings and, conversely, were not permitted to publish such data as are unrelated to the criminal activity, whilst being obliged, when providing information, to regard the suspect as innocent until convicted by a final judgment. According to a statement by the Syndicate of Journalists, this amendment to the Criminal Procedure Code introduces “total censorship”, primarily for investigative journalists who in the past uncovered mafia practices involving the commission of multiple criminal offences and in which, in many cases, the distinctions between the perpetrator of a criminal offence and the victim of a criminal offence were blurred.
From the perspective of the opposite viewpoint, leaks of information from criminal files and their subsequent publication, including personal data of persons suspected or accused of a criminal offence, endanger confidence in the lawfulness of the procedure of law enforcement authorities, having regard to the aforementioned principle of the presumption of innocence. These persons and their social standing were affected by the publication of this information to such an extent that even in the event of their subsequent “exoneration” before a court, they were already forever dishonoured in the eyes of society as those who had already had a problem with the law.
Protection of information about the injured party in criminal proceedings The content of this amendment also includes the protection of information about the injured party in criminal proceedings. An injured party in criminal proceedings means, within the meaning of Section 43 of the Criminal Procedure Code, a person who has been harmed in his health by a criminal offence and who has suffered pecuniary, moral or other injury. This term must be distinguished from the term victim of a criminal offence, who is a natural person who has suffered injury to health as a result of a criminal offence.
Pursuant to the completely new provision of Section 8b of the Criminal Procedure Code, it is now prohibited to publish images, audiovisual recordings or other information about the course of a trial or public hearing that would enable the identification of an injured party who is a person under 18 years of age or against whom the criminal offence of procuring or dissemination of pornography or any of the criminal offences against life and health, liberty and human dignity or against the family and youth has been committed. Section 8b thus contains specific regulation of the publication of information about a minor injured party, in respect of whom there is a special interest in protecting his privacy and personality having regard to his vulnerability and the need for the greatest possible elimination of the effects of harmful influences. The need for the adoption of these legislative measures was initiated by the so-called “Kuřim case”, so well known to the public, when from the press and from television we recently had the opportunity to learn the names and faces of abused and exploited children, when along with photographs and audiovisual recordings, personal data of these injured parties were also published.
Publication means any manner of publication, both through public media and by such conduct as is capable of making the content of information accessible to a larger number of persons. Communication of such information to an individual is therefore not sufficient unless it is clear from the circumstances that his interest in it is motivated by an effort to make it available to a wider circle of persons.
Law enforcement authorities may publish information containing personal data about the injured party or other data enabling the disturbance of his privacy only in the case of a public interest and to the necessary extent. Personal data of the injured party may therefore be published only for the purpose of achieving the purpose of criminal proceedings, in particular in cases where it is necessary to search for the injured party or where it is necessary to ascertain witnesses to a particular criminal offence. A further exception to the general prohibition is cases of publication of information about criminal proceedings only with the exclusive consent of the injured party who will be capable, having regard to his age and intellectual and volitional maturity, of assessing the consequences of such publication.
Law enforcement authorities are at the same time obliged under the Act on the Protection of Personal Data to take the necessary measures to prevent unauthorised persons from accessing information about the injured party, for example by appropriately storing it in a place to which other unauthorised persons do not have access, etc. The general prohibition on the publication of this information about the injured party applies in particular to information obtained in connection with a criminal offence committed against the injured party in any manner, depiction of a minor injured party or an injured party against whom any of the criminal offences directed against his person or personal rights has been committed, information in which the name or surname of the injured party is stated, or other data that would enable the injured party to be identified. Depiction means not only a photograph, but also audiovisual recordings and transmissions, drawn or painted portraits, etc.
Having regard to the principle of publicity within the meaning of Section 2(10) of the Criminal Procedure Code, enshrined in Article 96(2) of the Constitution and Article 38(2) of the Charter of Fundamental Rights and Freedoms, which in criminal proceedings applies in particular to the course of trial and public hearings, in which the identity of most of the accused and injured parties is regularly published, the question arises as to what extent the current amendment to the Criminal Procedure Code interferes with these fundamental constitutional principles and principles of criminal proceedings. In this situation, the media will no longer be able to literally quote or publish a court judgment, the pronouncement of which is in principle public, and in which the court also states personal data of the injured party. For this reason, the amendment to the Criminal Procedure Code introduces new rules of proceedings before a court, where the procedure will continue to be in accordance with the relevant provisions of the Criminal Procedure Code (Section 2(10) of the Criminal Procedure Code, Section 199 of the Criminal Procedure Code, Section 200 of the Criminal Procedure Code and Section 238 of the Criminal Procedure Code) taking into account the principle of publicity. If the court does not proceed to exclude the public from the trial or public hearing having regard to the interests of the injured party, the public cannot be prevented from participating in the proceedings. In such a case, information about the injured party and persons close to him may be heard before the public to the extent necessary for the hearing of the case before the court. However, the public is bound by the obligation not to further disseminate the information communicated, not to publish audiovisual recordings and information about the injured party and other data leading to his identification. If the media therefore attend the hearing, they may, if the presiding judge consents, make recordings of the trial or public hearing, but when transmitting the recording on television or radio they must prevent the publication of the depiction of the injured party, his personal data and other data referred to above. Likewise, the public cannot be prevented from taking notes or making sketches, but in respect of dealing with them the above applies, including the prohibition on disseminating such information. As regards the public pronouncement of judgments, a final decision on the merits will continue to be published, but only without stating personal data of the injured party and other data leading to his identification so that the injured party is protected from secondary victimisation.
Prohibition on publishing intercepts and records of telecommunications traffic The greatest public response, particularly from the media, was caused by the adoption of Section 8c of the Criminal Procedure Code, which prohibits the publication of information from intercepts and records of telecommunications traffic. In the future, therefore, there should no longer be publication of evidentiary material from investigative files during criminal prosecution, the best known of which include the publication of transcripts of intercepts of tragicomic dialogues from the football corruption case or chapters from the life of František Mrázek, from which emerged the connection of organised crime to public administration or even to law enforcement authorities.
According to the newly adopted provision, no one may, without the consent of the person to whom such information relates, publish information about the ordering or carrying out of intercepts and records of telecommunications traffic pursuant to Section 88 of the Criminal Procedure Code or information obtained therefrom, data on telecommunications traffic ascertained on the basis of an order pursuant to Section 88a of the Criminal Procedure Code or information obtained from surveillance of persons and things pursuant to Section 158d(2) and (3) of the Criminal Procedure Code, if they enable the identification of that person and have not been used as evidence in proceedings before a court. According to statements by legislators and proponents of this provision, the situation where copies of documents or copies of CD-Rs with intercepts were “taken out” of criminal files and provided to certain editorial offices for scandalous use was unsustainable. No one, according to them, not even a journalist, and this with reference to the aforementioned principle of the presumption of innocence, has the right to interfere with the activity of an independent and impartial court before that court has given a final judgment on the merits. It is true that the practice that has been applied in our country in connection with information and intercepts relating to criminal proceedings and in the course thereof has no equivalent anywhere in the countries of the European Union. However, a completely different situation will arise if the relevant criminal case is heard and finally concluded in a trial or public hearing before a court. In this case it is, of course, correct and desirable that the public should learn about information from intercepts as evidence produced in criminal proceedings.
Sanctions for breach of prohibitions on the publication of information in criminal proceedings New provisions on administrative offences have been included in the Act on the Protection of Personal Data punishing a natural person for a misdemeanour (in this connection, this provision has been deleted from the Act on Misdemeanours) and administrative offences punishing a legal person or a natural person engaged in business who breaches the prohibition on the publication of personal data established by a special law. Such a law is precisely the Criminal Procedure Code as amended by this amendment (Section 8b of the Criminal Procedure Code) and the Act on Juvenile Justice. A natural or legal person may be imposed a fine of up to CZK 1,000,000 for breach of the prohibition on publishing data and, if a misdemeanour or other administrative offence is committed by means of the press, film, radio, television, a publicly accessible computer network or another similarly effective manner, a fine of up to CZK 5,000,000 may be imposed for such conduct. The Office for Personal Data Protection has jurisdiction to hear the above-mentioned misdemeanours and administrative offences.
Nor can the fact be overlooked that a person so acting may fulfil the factual elements of the criminal offence of unauthorised handling of personal data pursuant to Section 178 of the Criminal Code, according to which this criminal offence is committed by a person who, even through negligence, unlawfully communicates, makes accessible, otherwise processes or appropriates personal data about another person collected in the course of criminal proceedings or in connection with the exercise of public administration and thereby causes serious injury to the rights or legitimate interests of the person to whom the personal data relate. For such conduct, a person may be punished by imprisonment for up to three years or by prohibition of activity or by a fine. Imprisonment for one to five years or prohibition of activity or a fine will be imposed on a person who commits such an act by means of the press, film, radio, television, a publicly accessible computer network or another similarly effective manner, or if he commits the act in breach of obligations arising from his profession, employment or function. The statutory formulation “serious injury to rights” is already regulated by the Criminal Code in relation to the criminal offence of damaging the rights of others and concerns injury of a non-pecuniary character. Whether certain conduct has caused serious injury to rights within the meaning of this factual element will depend on the specific case and will need to be proved by law enforcement authorities, otherwise the conduct will not be criminal. It will therefore be necessary to consider, having regard to all relevant circumstances, what is the nature and intensity of the specific injury, what consequences it has for the injured party and whether it is a harmful consequence that is easily or with difficulty removable.
As regards the assessment of the contribution of the new legal regulation, in addition to reasons in its favour, i.e. the protection of the privacy of persons in criminal proceedings, it is necessary to take into account also the arguments of its unequivocal opponents, namely in particular the media. According to them, the so-called “muzzle law”, as the media now refer to it, is a significant interference with freedom of expression and freedom of speech and is intended to serve primarily to protect political elites and the grey eminence actively influencing public administration and law enforcement authorities in their decision-making. In this connection, it is necessary to mention that rare, almost absolute consensus in the approval of this amendment to the Criminal Procedure Code in the Chamber of Deputies, across the entire political spectrum. It is also true that it is only thanks to the media that certain facts have come to light giving rise to justified doubts in the public about the independence of the Czech judiciary and facts about impermissible interference by third parties in the course of proper investigation (for example, in the case of the criminal prosecution of the former Deputy Prime Minister and current Chairman of the KDÚ-ČSL Jiří Čunek and many others). Nor can one agree with the view of the legislator that the purpose of introducing stricter conditions for handling intercepts in criminal proceedings is to punish in particular persons who provide information to journalists rather than the journalists themselves, since it will be primarily they who will bear the possible consequences of criminal prosecution.
Basically, only time will tell how Act No. 52/2009 Coll. will affect the approach of law enforcement authorities and the media to information obtained in criminal proceedings, since in accordance with the statement of the Syndicate of Journalists it can reasonably be expected that the final word on the fate of this law will probably be had by the Constitutional Court.
This text was translated from Czech to English using an AI translator.