Right to Inspect the Case File in Czech Criminal Proceedings

Under Article 40(3) of the Charter of Fundamental Rights and Freedoms, a person accused of a criminal offence must have the time and opportunity to prepare a defence. A defence can only be prepared if the accused knows exactly what they are being charged with, and that is what the right to inspect the case file serves. This right is governed generally by Section 65 of Act No. 141/1961 Coll., the Criminal Procedure Code, as amended, and is further anchored in Section 166 of the same Act.

Section 65 of the Criminal Procedure Code entitles the accused, the injured party, the involved person and their defence counsel and authorised representatives to inspect the file and to take extracts, notes and copies from it. Where the accused, the injured party or the involved person lacks legal capacity or has limited legal capacity, their statutory representatives and guardians hold the same entitlement. Other persons may also inspect the file, but subject to restrictions: inspection, note-taking and copying require the consent of the presiding judge and proof that access to the file is needed for the exercise of the rights of that person, who is not a party to the proceedings.1) During pre-trial proceedings, the criteria for access by other persons are identical, but consent is granted by the public prosecutor or the police authority.2)

Under Section 166 of the Criminal Procedure Code, once the investigation is complete, the police authority must allow the accused, their defence counsel and an injured party who has filed a motion under Section 43(3) of the Criminal Procedure Code to study the file within a reasonable time and to propose additional investigation.

The scope of the right to inspect the file is limited by an exception prohibiting inspection of the voting record and of the personal data of an anonymous witness.3) Under Section 65(5) and (6), when access to the file is granted, measures must be taken to preserve the secrecy of classified information under a special act and of data subject to a duty of confidentiality. In addition, the public prosecutor or the police authority may refuse inspection of the file, and the taking of notes and copies, for serious reasons. This is possible only in pre-trial proceedings and only before the accused and their defence counsel have been notified of the opportunity to study the file. Inspection also cannot be refused while a plea agreement on guilt and punishment is being negotiated.

The above describes access to the file before and during criminal proceedings before the court. There is a considerable body of case law interpreting and refining the individual provisions of the Criminal Procedure Code on the right to inspect the file. Only recently, however, did the Constitutional Court, in its judgment Case No. II. ÚS 2156/21, address whether the right to inspect the file may be denied to a person who has already been sentenced to imprisonment by a final judgment and who is evading serving the sentence.4)

The Constitutional Court held that “although Section 65 of the Criminal Procedure Code refers to the accused, this term must be interpreted in conjunction with Section 12(7) of the Criminal Procedure Code, under which the accused also means the defendant and the convicted person, unless the nature of the matter implies otherwise.”5) Therefore, “the Constitutional Court finds no reason why the legal rules on the accused’s inspection of the file should not also apply to the convicted person.”6) The Constitutional Court thus concluded that the right to inspect the file under Section 65 of the Criminal Procedure Code extends to convicted persons as well. This also determines who may deny a convicted person or their legal representative the right to inspect the file and to take notes and copies from it, and under what conditions.
In the case at hand, the Constitutional Court summarised that the District Court in Ústí nad Orlicí “did not allow the convicted person’s defence counsel to inspect the file because the request was not reasoned and because the complainant [author’s note: the convicted person] was evading the prison sentence, and inspecting the file could help him maintain that situation.”7) As the Constitutional Court went on to state: “Neither of these reasons stands in the light of Section 65 of the Criminal Procedure Code.”8) (Quotations are unofficial translations.)

Under Section 65(1) of the Criminal Procedure Code, only persons other than the accused, the injured party and the involved person must demonstrate a legal reason for access, and, as noted above, the Constitutional Court has held that the term “accused” also covers the “convicted person”. According to the judgment, it is therefore irrelevant whether or not the request to inspect the file was reasoned.9)

The District Court also acted contrary to Section 65 of the Criminal Procedure Code by refusing to let the convicted person’s lawyer inspect the file, although in enforcement proceedings the law provides no equivalent of the refusal for serious reasons that exists in pre-trial proceedings.10)

It follows that the right to a defence under Article 40(3) of the Charter, and specifically its component of inspecting the case file, belongs in full not only to the persons listed in Section 65(1) of the Criminal Procedure Code but also to the convicted person and their legal representative, even where the convicted person is evading a prison sentence.

________________

1. According to the commentary, such a person not involved in the proceedings may be, for example, a person other than the accused who requests the release of seized items, an interest association of citizens or a trustworthy person offering, in lieu of custody, to guarantee the accused’s further conduct and appearance in court when summoned, the owner of seized funds held in an account with a bank or another entity maintaining accounts for others, persons who may file a complaint, an appellate review or a petition for reopening of proceedings in favour of the accused, and others (ŠÁMAL, Pavel, GŘIVNA, Tomáš. § 65 [Právo nahlížet do spisů]. In: ŠÁMAL, Pavel et al. Trestní řád I, II, III. 7th edition. Prague: C. H. Beck, 2013, p. 706).
2. Section 65(1) of Act No. 141/1961 Coll., the Criminal Procedure Code, as amended.
3. Ibid.
4. Section 65(2) of Act No. 141/1961 Coll., the Criminal Procedure Code, as amended.
5. Judgment of the Constitutional Court of the Czech Republic, Case No. II. ÚS 2156/21, para. 21.
6. Ibid.
7. Ibid., para. 24.
8. Ibid.
9. Ibid., para. 25.
10. Ibid., para. 26.