Even because of the extraordinary political situation, we cannot interfere with the legal order of the affidents, says Jaromír Císař, a lawyer

The motion to the Constitutional Court to abolish the criminality of unauthorized activity for foreign power, initiated by Senator Michael Canov (SLK), was signed by 24 members of the upper parliamentary chamber. The partner of Portos Jaromír Císař represents them legally. In an interview with the Czech Justice, he explains why he considers legislative stickers to be a problem and what risk he sees in the new factual nature of the crime. “If we use disproportionately powerful means, we can end up causing much more damage than we wanted to prevent,” he warns.

You represent senators who have filed a motion to repeal a portion of the law known as "Lex Ukraine," specifically its provision on the crime of unauthorized activity for a foreign power. The deputies incorporated this offence into the law during the second reading in the Chamber. What do you think is problematic about this section and what did you base the proposal on?

Primarily, the complaint is based on the illegal use of the so-called legislative addendum. In general, it is an unsystematic, improvised and expedient proposal that is hastily discussed in the Chamber of Deputies at the last minute, often without prior expert discussion. If another body - the Senate or the President - does not intervene, only the Constitutional Court can intervene to protect the legal order at the suggestion of a group of MPs or senators. Although the prohibition of add-ons is not formally enshrined in law, the case law of the Constitutional Court has long condemned this practice as unacceptable in principle.

However, the Constitutional Court has ruled in the past that not all surcharges are automatically bad.

Ano, existuje určitá skulina, kterou Ústavní soud připouští, a to pokud o návrhu panuje široká politická shoda, tedy nejen ze strany vládní koalice, ale i ze strany opozice. Logika je taková, že pokud by úprava měla takto širokou podporu, dříve nebo později by úspěšně prošla i standardním legislativním procesem.
Jenže pokud je přílepek protlačen pouze vládní většinou, často těsnou, bez dostatečné odborné diskuse, a navíc se proti němu vymezují významné instituce – v daném případě dokonce Nejvyšší soud, pak už jde o zásadní problém.
V tomto případě navíc Senát o zákonu nijak nerozhodl, protože žádný návrh na jeho zamítnutí nebo změnu nezískal ve lhůtě dostatečnou podporu. To znamená, že zákon prošel jen na základě fikce souhlasu, což je dalším argumentem proti tomuto přílepku.

However, the law was also prepared by the Ministry of Justice as part of a broader amendment to criminal law.

The legislative process has clear rules. This amendment should have undergone a proper expert assessment and comment procedure. The Minister of Justice himself, Pavel Blažek, has acknowledged that this paragraph needs to be subjected to more thorough expert discussion. This confirms that it was not well prepared. It is not possible for a new offence in the Criminal Code to be defined in such a rubbery way that it could threaten freedom of speech, including, incidentally, the work of journalists.

The original motivation of the drafters of the amendment is understandable - the current legislation only punishes those who obtain classified information for the benefit of a foreign power. The new legislation is intended to show that even the collection of non-classified information with hostile intent can be harmful to the Republic and should be punished. However, a well-formulated addition to the existing criminal law cannot be arrived at by a hastily baked addition.

The danger of vague facts

Unauthorized activity for a foreign power carries a base rate of up to five years in prison, and up to 15 years in case of martial law. It applies to those who would work for a foreign country or organisation "with the intention of threatening or harming the constitutional establishment, sovereignty, territorial integrity, defence or security of the Czech Republic". You are talking about "rubber stamp" wording. Apart from the unconstitutional legislative process, senators are concerned that the new offence is too vaguely and broadly worded. What do you see as the specific problem?

The biggest problem is that intent is supposed to be a key element of the offence. In other words, the act itself is worded so vaguely that the primary criterion for criminality is the intention of the perpetrator, which is extremely difficult to prove.
Moreover, this is a political crime, which is always a sensitive issue. Historically, we know how such laws have been abused. Let us recall, for example, Law No 231/1948 on the Protection of the Republic, which was abused against political opponents.
Another problem is that even the preparation itself is punishable. This means that the mere gathering of information can be criminalised without the person concerned actually having done anything.

Czech Interior Minister Vít Rakušan (STAN) said the law's rapid adoption is necessary because of the "current political situation". Are we not now really in an exceptional situation where we need to react as quickly as possible?

Certainly not, because nothing good can come of such a quick and impromptu intervention. Where are the limits of an emergency? How often will we invoke a state of emergency to justify interference with rights and freedoms? The rule of law must also withstand difficult times. The section, even if it is later amended or repealed, could do a lot of damage and injustice in the meantime.

In your opinion, the current situation, when there is a war in Ukraine and at the same time Russia is waging an information war, is not extraordinary?

What are the limits of such an emergency situation? I can imagine much more critical scenarios, but we are currently in a political situation that is not so much a real historical emergency as a world moving into a new phase. Of course - there is a war in Ukraine, there is no doubt that an emergency situation has arisen there. But this is reflected above all in the way the Ukrainian state is organised.

We may see some worrying tendencies in our country, but there is no reason to "shoot at sparrows with a cannon" because of them. If we use disproportionately strong means, we may end up causing much more damage than we intended to prevent.

How do you assess the fact that the police will be able to use wiretaps when suspecting activities for foreign powers?

Wiretapping is becoming an increasingly prominent phenomenon in criminal prosecutions. One only has to look at recent cases to see that they are already spreading into the home. That is why I think they need to be handled with extreme care.

Moreover, if such a vaguely formulated fact were to enter into the legal system and at the same time it were to be held that the preparation of such an act is also punishable, this would create an even wider range of activities that could be punished. Anchoring the possibility of wiretapping in such vague terms will then inevitably lead to political spin. I am convinced that this would damage not only the legal certainty of citizens, but also the quality of democracy in our republic.

The explanatory memorandum talks about protecting freedoms, but the question is how this will actually be implemented. If we allow such a broad possibility of surveillance and eavesdropping, then we will not be protecting our existing constitutional Charter of Fundamental Rights and Freedoms, but will, on the contrary, begin to dismantle it. And we will do this by the very methods that we know from the many unfortunate examples of history, which have led to gross violations of human rights and democratic principles.

Full article on the website: Česká justice