12. 12. 2022
I guess I can be trusted to have been through a lot whilst defending. Including threats from law enforcement authorities. More specifically, members of the StB, State Security, former Czech communist secret police, and therefore under the Bolshevik regime. However, even they did not dare to express their threats or undisguised pressure in writing. It was not until the prosecutor of the High Prosecutor’s Office in Olomouc.
In her motion for custody, she stated, among other things, that the defendant is trying to influence the criminal proceedings and obstruct proper clarification, "...also through his defence attorney, where at least witness XY testified that he was contacted by phone by the defendant's attorney and asked to come to his office in Prague, where his testimony was subsequently presented to him." The defence attorney was me, the motion is dated 9 December 2022 and has the Case No. of the High Prosecutor's Office in Olomouc 3 VSZ 2/2022. For this to be “sourced”.
The prosecutor openly claims that a perfectly legitimate and lawful activity of the defence attorney is obstruction of proper clarification, a patently illegal activity. For those who are not so familiar with the rigmaroles of criminal proceedings, let me remind you of the provisions of Section 89(2) of the Criminal Procedure Code, according to which "Either party may seek, present or propose the production of evidence. The fact that evidence has not been sought or requested by the law enforcement authority shall not be a ground for refusing such evidence".
I can also quote from the "Opinion on the unification of the interpretation of laws and other legal regulations on the procedure of prosecutors regarding the exercise of the right of a defence attorney to seek and submit evidence or propose the production of evidence in accordance with the second sentence of Section 89(2) of the Criminal Procedure Code", issued by the Supreme Prosecutor's Office on 14 October 2004 under number SL 766/2004. It states, inter alia, that "...the defence attorney is entitled in particular to search for sources of evidence and to identify the bearer of the relevant evidence, as well as to verify the usefulness of such evidence from the point of view of the defence in further proceedings. To this end, it is permissible for the defence attorney to (a) request a particular person to communicate the necessary information and to make a written record of the content of the information communicated, or, with the consent of the person concerned, to make an audio or visual recording..." For the correctness of the context of the quotation, I add that "...however, the condition must always be fulfilled that this activity of the defence attorney is guided only by the effort to obtain information necessary for the purpose of the proper performance of the legal service...".
Basically, the same is contained in the resolution of the Board of Directors of the Czech Bar Association No. 13/2004 of the Bulletin. In other words, a defence attorney can call a witness ten times, present his or her testimony for instance ten times, and ask for information that he or she needs for the purposes of the defence.
For example, whether he or she was coerced into giving his or her statement, etc. The position of the defence attorney in this respect is completely identical to that of the law enforcement authority, with the only difference that the witness is not obliged to attend the meeting with the defence attorney and his or her possibly false statement cannot be qualified as a criminal offence of perjury under section 346(2) of the Criminal Code.
All this must have been obvious to the prosecutor, and yet she did not hesitate to label the perfectly legal actions of the defence as obstruction of the investigation in a public document, which the motion for custody undoubtedly is.
About three weeks ago, at a conference on the Slánský trial, we discussed the fact that times are different, political trials are not imminent, but that does not mean that there are not occasional attempts to illegally pressure the defence attorney. And we vowed that we would impede them. Really, the prosecutor couldn't have picked a better time to demonstrate that there are still people who would like to see the defence as part of the prosecution.
I have no doubt that the rights and duties of the defence attorney are clear to the prosecutor. Yet she wrote what she wrote, no doubt with the direct intention of intimidating not only me, but also my client and any witnesses. And also, any other defence attorneys who might wish to do what the law allows and requires them to do.
It's a pretty simple design. The obstruction of a proper investigation is undoubtedly at least inconsistent with the duties of an attorney and, as is apparent, is even seen as a legitimate reason to seek a collusive custody of a client. It follows that, after accusing the defence attorney of obstructing a proper investigation, a client may conclude that not only is his defence attorney violating the law, but that he must bear the consequences. Thus, confidence in the attorney’s professionalism and the quality of the legal service provided may be significantly undermined. The reason for such an accusation is undoubtedly that the defence attorney, under its influence, would cease to consistently defend the interests of the client in the event that a conversation with a witness or potential witness would appear necessary to ascertain information necessary for the purposes of the proper provision of legal services. Professionally, the consequence of such pressure is called the choking effect.
And then there are the defendants who become afraid of being taken into collusive custody as a result of their defence attorney's activity. And they won't agree to such a course of action, however necessary. So, this is a means of a completely unlawful pressure on the accused. And certainly, if such insinuation cases were to become a widespread practice, few witnesses or potential witnesses would be willing to communicate with the defence attorney. Clinging to the law and the Supreme Prosecutor’s Office position will be useless because “after all, I'm not going to get arrested for obstructing an investigation”. Since such news spreads quickly, it was probably calculated that other defence attorneys who learn about this accusation will also fear a similar accusation with all the consequences mentioned above and will therefore stop fulfilling their legal obligations.
I have no evidence to support the claim that the prosecutor in question wanted to return to the conditions of the 1950s, but there is something of that time in her. Hence the mention of DNA.
One more aspect of the matter cannot be overlooked. The prosecutor could not have learned of my dealings with the witness except from the police. From which it can be inferred that even among the current police officers, there are individuals who spy on defence attorneys and are concerned with whom defence attorneys meet and what they talk about, which is none of their business. Even if they are witnesses or potential witnesses. Also, a form of intimidation.
Proto jsem napsal tento článek.
The fact that I will not be intimidated and will defend myself with all available means is one thing. Even in the Fourth Annual Report on the Rule of Law, the intimidation described would fit quite nicely as an example of conduct undermining the independence of attorneys. I will continue to call witnesses if I consider it necessary for that reason. But it needs to be said out loud that illegal practices cannot be tolerated, even to a prosecutor.
That is why I have written this article.
JUDr. Tomáš Sokol,
attorney and defence attorney, member of the Board of Directors of the Czech Bar Association, President of the Union of Attorneys of the Czech Republic