Interception and Recording of Telecommunications Section 88
(1) If a criminal proceeding is conducted for a crime, for which the law prescribes a sentence of imprisonment with the upper limit of at least eight years, for a criminal offence of machinations in insolvency proceedings according to Section 226 of the Criminal Code, breach of regulations on rules of economic competition according to Section 248 (1) (e) and
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(2) to (4) of the Criminal Code, arranging advantage in commission of public contract, public contest and public auction according to Section 256 of the Criminal Code, machinations in commission of public contract and public contest according to Section 257 of the Criminal Code, machinations in public auction according to Section 258 of the Criminal Code, abuse of competence of a public official according to Section 329 of the Criminal Code or for another intentional criminal offence, for prosecution of which is the Czech Republic bound by a promulgated international treaty, an order for intercepting and recording telecommunication traffic may be issued, if there is a reasonable belief that it shall transmit information essential for criminal proceedings and the pursued purpose cannot be achieved in other ways, or if reaching this purpose would otherwise be considerably more complicated. Intercepting and recording of telecommunication traffic for the needs of all authorities involved in criminal proceedings shall be performed by the Police of the Czech Republic. Intercepting and recording of telecommunication traffic between an accused person and his defense counsel is inadmissible. If the Police authority ascertains, in the course of intercepting and recording of telecommunication traffic, that the accused person communicates with his defense counsel, it is obliged to immediately destroy the record and not to use thus ascertained information in any way. Protocol on destroying the record shall be deposited in the file.
(2) Only the presiding judge and in pre-trial proceedings the judge upon a motion of the public prosecutor is entitled to order interception and recording of telecommunication traffic. The order to intercept and record telecommunication traffic must be issued in writing and must be justified, including a specific reference to a promulgated international treaty, if the criminal proceeding is conducted for a criminal offence, to prosecution of which is the Czech Republic bound by this international treaty. The order for interception and recording of telecommunication traffic shall indicate the user address or the device and the user himself, if his identity is known, and the time for which is the interception and recording to be conducted, which shall not exceed four months; the reasoning must state specific matters of fact that justify the issue of this order, including the time of its duration. The order for interception and recording of telecommunication traffic shall be immediately delivered to the Police authority. In pre-trial proceedings shall a transcript of the order for intercepting and recording of telecommunication traffic be immediately sent to the public prosecutor. (3) The Police authority is obliged to continuously assess, whether the reasons that lead to issuing the order for interception and recording of telecommunication traffic still exist. If the reasons ceased to exist, the Police authority is obliged to terminate the interception and recording of telecommunication traffic at once, even before the expiration of the time referred to in sub-section (2). This matter shall be immediately notified in writing to the presiding judge that issued the order for intercepting and recording of telecommunication traffic, and in pre-trial proceedings also to the public prosecutor and judge.
(4) Based on evaluation of previous course of interception and recording of telecommunication traffic may the judge of a court of a higher instance and in pre-trial proceedings the judge of a Regional Court upon a motion of the public prosecutor extend the
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duration of the interception and recording of telecommunication traffic; the extension may be ordered repeatedly, each time for four months at the longest.
(5) Without an order for interception and recording of telecommunication traffic may the authority involved in criminal proceedings order interception and recording of telecommunication traffic or perform it by itself, if the matter concerns criminal proceedings conducted for a criminal offence of trafficking in human beings (Section 168 of the Criminal Code), placing a child in custody of another person (Section 169 of the Criminal Code), illegal restraint (Section 171 of the Criminal Code), extortion (Section 175 of the Criminal Code), kidnapping of a child or a mentally challenged person (Section 200 of the Criminal Code), violence against a group of people and against an individual (Section 352 of the Criminal Code), dangerous threatening (Section 353 of the Criminal Code), or dangerous pursuit (Section 354 of the Criminal Code) provided that the user of the intercepted station consents with it.
(6) If a record of telecommunication traffic is to be used as evidence, it must be provided with a protocol stating data on the location, time, means and contents of the record, and also information on the authority that made the record. The Police authority is obliged to mark and reliably store other records, so that their protection from unauthorized use is secured, and to indicate in the protocol attached to the file where they are stored. In another criminal case than the case in which the interception and recording of telecommunication traffic was performed may the records be used as evidence only if in this case is the criminal prosecution conducted for a criminal offence referred to in sub-section (1), or if the user of the intercepted station consents with it.
(7) If no matters substantial for criminal proceedings are ascertained during the interception and recording of telecommunication traffic, the Police authority is obliged, upon receiving a consent of the court and in pre-trial proceedings of the public prosecutor, to immediately destroy the records after three years from the final and effective conclusion of the case. If the Police authority was notified about lodging an extraordinary appeal in the stated time limit, it shall destroy the records after the decision on the extraordinary appeal is made, eventually after the new final and effective conclusion of the case. Protocol on destroying the record of the interception shall the Police authority send to the public prosecutor, by whose decision was the case finally and effectively concluded, and in trial proceedings to the presiding judge of the senate of the first instance, in order to be stored in the file.
(8) The public prosecutor or Police authority, by whose decision was the case finally and effectively concluded, and in trial proceedings the presiding judge of the senate of the court of the first instance after final and effective conclusion of the case, shall inform the person referred to in sub-section (2) about the ordered interception and recording of telecommunication traffic, if this person is known. The information shall contain identification of the court that issued the order for interception and recording of telecommunication traffic, duration of the interception and the date of its termination. A part of the information is an instruction about the right to lodge a petition to the Supreme Court
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to review the legality of the order for interception and recording of telecommunication traffic within six months from the day of delivering this information. The presiding judge of the court of first instance shall give the information immediately after concluding the case, the public prosecutor by whose decision was the case effectively concluded immediately after expiration of the time period for review of his decision by the Supreme Public Prosecutor according to Section 174a, and the Police authority, by whose decision was the case finally and effectively concluded, immediately after expiration of the time period for review of its decision by the public prosecutor according to Section 174 (2) e).
(9) The information according to sub-section (8) shall the presiding judge, public prosecutor or Police authority not give in proceedings on a crime, for which the law prescribes a sentence of imprisonment with the upper limit of at least eight years, committed by an organized group, in proceedings on a criminal offence committed for the benefit of an organized criminal group, in proceedings on a criminal offence of participation in an organized criminal group (Section 361 of the Criminal Code), or if more persons participated in commission of the criminal offence and in relation to at least one of them was the criminal proceedings not yet finally and effectively concluded, or if a criminal proceeding is conducted against the person, to whom is the information to be given, or if giving such information could thwart the purpose of the criminal proceedings, including the proceedings referred to in sub-section (6), or if it could imperil the security of State, life, health or rights and liberties of persons.
Section 88a
(1) If it is necessary for the purposes of criminal proceedings conducted for a criminal offence, for which the law prescribes a sentence of imprisonment with the upper limit of at least three years, for a criminal offences of Breach of secrecy of correspondence (Section 182 of the Criminal Code), Fraud (Section 209 of the Criminal Code), Unauthorised access to computer systems and information media (Section 230 of the Criminal Code), Obtaining and possession of access device and computer system passwords and other such data (Section 231 of the Criminal Code), Dangerous threatening (Section 353 of the Criminal Code), Dangerous pursuing (Section 354 of the Criminal Code), Spreading of alarming news (Section 357 of the Criminal Code), Incitement to criminal offence (Section 364 of the Criminal Code), Approval of criminal offence (Section 365 of the Criminal Code) or for an intentional criminal offence, prosecution of which is stipulated by an international treaty binding the Czech Republic, to ascertain data on telecommunication traffic that are subject to the telecommunication secrecy or to which applies protection of personal and mediated data and if the followed purpose cannot be achieved otherwise or it its achieving would be substantially more difficult, the presiding judge shall order submitting the data to the court in trial proceedings, and in pre- trial proceedings the judge shall order their submitting to the public prosecutor or to the Police authority upon a motion of the public prosecutor. The order for ascertaining data on telecommunication traffic must be issued in writing and must be reasoned, including a specific reference to a promulgated international treaty in case the criminal proceedings is being conducted for a criminal offence, prosecution of which is stipulated by this international
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treaty. If the request concerns a specific user, the order must include his identity, if it is known.
(2) The public prosecutor or the Police authority, by whose decision was the case finally and effectively terminated and in trial proceedings the presiding judge of the panel of the court of the first instance shall inform the user referred to in sub-section (1), if he is known, after the final and effective termination of the case, about the ordered ascertaining of data on telecommunication traffic. The information contains identification of the court that issued the order for ascertaining of data on telecommunication traffic and data on the period concerned by this order. The information shall also contain an advice on the right to file a petition for a review of the legality of the order for ascertaining of data on telecommunication traffic to the Supreme Court within six months from the day of service of this information. The information shall be submitted by the presiding judge of the panel of the court of the first instance without an undue delay after the final and effective termination of the case. The public prosecutor, by whose decision was the case finally end effectively terminated shall submit the information without an undue delay after the expiration of the time limit for reviewing his decision by the Supreme Public Prosecutor according to Section 174a and the Police authority, by whose decision was the case finally and effectively terminated shall submit the information without an undue delay after the expiration of the time limit for reviewing his decision by the public prosecutor according to Section 174 (2) e).
(3) The information according to sub-section (2) shall the presiding judge, the public prosecutor or the Police authority not submit in proceedings on a felony, for which the law stipulates a sentence of imprisonment with the upper limit of at least eight years, committed by an organised criminal group, in proceedings on a criminal offence committed in favour of an organised criminal group, in proceedings on a criminal offence of Participation in organised criminal group (Section 361 of the Criminal Code), or if more persons took part in commission of the criminal offence and in relation to at least on of them the criminal proceedings was not finally and effectively terminated, or if criminal proceedings is being conducted against the person, to who is the information to be conveyed, or if giving such information could compromise the purpose of this or another criminal proceedings, or if it could lead to endangering of the security of State, or the life, health, rights or freedoms of persons.
(4) The order according to sub-section (1) is not necessary, if the user of the telecommunication device concerned by the data on the executed telecommunication traffic gives his consent to submitting the data.
CHAPTER FIVE
Evidence