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Due Process of LawRecent Dawn Raid Practice in Slovakia

Juraj Steinecker

1. Dawn raids in Slovakia - Overview

2. First major case – Ševt (3Sžz/1/2011)

3. Second major case – AT Computer (4Sžz/1/2013)

• Right to request explanation

• Search of computers – right to be present?

4. General observations

Agenda

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• “Standard” authorizations of Slovak NCA:

• Enter business premises and vehicles

• Inspect and copy documents

• Search and copy hard disks

• Request information

• Seal premises

• Enter private premises and vehicles (authorization by court)

Dawn Raids – Basic Framework

3

• Supreme Court disqualifies inspection of Slovak NCA

• Deficiencies in the authorization to conduct an inspection

• Uncertain legal qualification

• Absence of official stamp, file no. and reasoning

• No administrative file

• Outcome:

• Slovak NCA prohibited to search copies of hard disks seized during dawn raids

• Administrative proceedings against undertaking discontinued

Supreme Court – ŠEVT 1

4

• Legal privilege: failure & failed opportunities

• Failure to address all challenged aspects of inspection

• Application of administrative rules to inspection

• Happy client – unhappy lawyer

Supreme Court – ŠEVT 2

5

• Raising various issues in conducting dawn raids

• Self-incriminating questions

• Right to be present at the search of a hard disk

• Disqualification of partial aspects of the inspection

• No obligation on the part of Slovak NCA to explicitly inform the undertaking of its rights, e.g. right to legal representation

Supreme Court - AT COMPUTER 1

6

• Authorization of Slovak NCA to request explanation

• Strict limits during dawn raids

• What kind of questions?

• Several questions “go beyond or at least raise suspicion whether their aim is to safeguard the inspection”

• On-spot explanations should not substitute witness questioning

• No explicit mention of prohibition of self-incriminating questions

• Consequences for Slovak competition law

Supreme Court - AT COMPUTER 2

7

• Requesting explanations from an employee when searching his computer – procedural deficiency

• Inspecting the computer of the employer during its providing explanations – no violation of basic rights?!

• Supreme Court: Unless the documentation seized from the correspondence is of private character, the inspection is legal.

• No mention of basic rights to protection of privacy & privileged documentation

• How to check what Slovak NCA is doing when not being present?

Supreme Court - AT COMPUTER 3

8

• Detailed review & concise decision

• Ambiguous decision

• Failed opportunities:

• Self-incriminating questions

• Privacy

• Legal privilege

• Procedural questions

• Unhappy client & unhappy lawyer

Supreme Court - AT COMPUTER 4

9

• Right to challenge inspection immediately

• Quite few open and/or unaddressed issues

• Next decision…?

General observations – post AT COMPUTER

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Comments / Questions?

Thank you for your attention !

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Juraj Steineckerjuraj.steinecker@havelholasek.sktel.: +421 220 256 780