Constitutional Court rules restitution lawyer's wiretapping illegal

In 2004, the police asked a court in Prague for permission to tap the phone of Jaroslav Capek, a restitution lawyer based in Hradec Kralove, East Bohemia. The police were trying to prove that Mr Capek committed frauds while representing Frantisek Oldrich Kinsky in his disputes with the state over confiscated family property. On Wednesday, the Czech Constitutional Court ruled that the interception was unsubstantiated and illegal.

Jaroslav Capek, photo: CTK

Jaroslav Capek is an attorney who specializes in restitution causes. Among his clients is Frantisek Odlrich Kinsky, a member of one of the oldest Bohemian aristocratic families. He filed more than 150 lawsuits against the Czech Republic demanding to return about 40 billion crowns, or more than 2 billion US dollars worth, of property. In 2004, a special police team set up by Interior Minister Stanislav Gross began operations under the codename 'Property'. Its agents were trying to get hold of evidence that Mr Capek was employing corruption when justifying his client's claims. The 'Property' team received permission from a Prague court to tap the lawyer's phone calls. Mr Capek, who did not learn about these measures until two years later, complained to the Constitutional Court, which now proved him right. Michal Spacil is the spokesman for the Constitutional Court.

"The Constitutional Court cancelled the permission to intercept Mr Capek's phone calls and it ordered the police to destroy the evidence acquired in this way. The Court said that using operative technology against Mr Capek was unacceptable in a situation when a common restitution plea is under way between Mr Capek's client and the state. According to the Constitutional Court, the district court did not sufficiently justify why the interception should be permitted at all."

As most of Mr Kinky's claims for property restitution have been rejected by Czech courts, Jaroslav Capek welcomes the findings of the Constitutional Court. He says that they may be of great importance at international level, where Mr Capek is challenging the rejections of his client's claims by Czech courts.

"One of the arguments is that Mr Kinsky's legal procedures were constantly interfered with by the state; our phone conversations were tapped, the state of the proceedings were reported to the Justice Ministry which then handed those reports to politicians. That is something unacceptable and it will of course be very interesting for international courts."

Regardless of the outcome of Mr Kinsky's restitution cases, the Constitutional Court has sent a clear message that the state must respect independence of the courts and of their procedures. And as Frantisek Oldrich Kinsky says, that's all he expects from a democratic country.

"We are not asking for any exceptions; we are not asking for a different treatment than anybody else would get. If now the courts accept claimants as normal citizens then I see a very definite chance that we are entering a period of democracy."