Bradáčové paragraph for a foreign power: protection of the state, or a blank check for repression?

Czech criminal law is supposed to protect the state from espionage, foreign intelligence services, sabotage and real security threats. There is no need to wage an ideological war about it. But that is precisely why the criminal law must be written extremely precisely. The tougher tools the state receives, the more precisely it must be determined against whom and under what conditions it may use them. Section 318a of the Criminal Code on "unauthorized activity for a foreign power" has been questioning this elementary principle since its inception. And the information that the Supreme State Attorney's Office under the leadership of Lenka Bradáčová proposes to solve the problem with a demonstrative list of criminal acts raises another question: should a more precise criminal norm be created, or just a longer list supplemented by an equally dangerously open door?

The current paragraph contains a wording that every criminal lawyer should pay attention to: a criminal is someone who, with a specified intention, "performs an activity for a foreign power". What activity? Is he getting classified information? Is he being recruited by intelligence officers? Does it take instructions? Does he fund sabotage? Does it organize an agency network? The law in its basic version does not say anything specific. At the same time, criminal law, which can deprive a person of his freedom, must not function as a rubber paragraph, the real content of which only begins to emerge in the police department, the public prosecutor's office or in the courtroom.

Even the Constitutional Court did not simply dismiss this problem. In the finding Pl. ÚS 5/25 of February 4, 2026 rejected the proposal to abolish the provision, but at the same time admitted that some of its variants are formulated quite broadly. In order for the provision to stand up constitutionally, its scope had to be significantly concretized by interpretation: it must be a concrete and real threat to protected interests, not just an abstract threat; there must be actual interference by a foreign power and the conduct must be unlawful. The Constitutional Court also emphasized the protection of freedom of expression and the subsidiarity of criminal repression. In other words: the text of the law remained standing, but a protective wall had to be built around it by jurisprudence.

And this is where the problem with the proposal of the Supreme State Attorney's Office begins. Its exact wording is not known to the public. We only know that Lenka Bradáčová submitted it to the expert team on April 27, 2026, that § 318a should be clarified and that, according to the NSZ, it containsa demonstrative list of specific prosecutable acts, inspired by, among others, Germany, Austria and France. This is still too little for a final judgment on the proposition, but enough for a very serious question. A demonstrative enumeration means that the list is not closed. And precisely the openness of the criminal norm is potentially its most dangerous feature.

There is a big difference between the sentence "one who obtains classified information for a foreign intelligence service is a criminal" and the construction "one who, for example, obtains information, monitors persons, influences decisions or otherwise performs activities for a foreign power is a criminal". In the first case, the legislator defines the conduct. In the second, he creates several examples and leaves behind an elastic residual category whose boundaries will be sought again by police officers, prosecutors and judges. Such a demonstrative list may at first appear to be a refinement, but if a general clause remains behind it, it may be merely a cosmetic modification of an old problem.

And the greatest danger of criminal law does not arise until a final judgment. It starts much earlier.

It is enough to suspect that a certain conduct may fall under a broad factual basis. This is followed by criminal proceedings, securing of electronics, interrogations, house searches, monitoring of financial flows, reputational damage and, if legal conditions are met, wiretapping. Section 318a was explicitly included in the catalog of crimes enabling wiretapping according to Section 88 of the Criminal Code. At the same time, it was reflected in the regulation of non-obstructing and non-reporting of a criminal offense and in the substantive jurisdiction of regional courts. So it is not about one innocent sentence of the criminal code. It is a gateway to a vast apparatus of criminal repression.

In addition, a person does not have to be convicted in the end for criminal proceedings to dramatically affect his life. Prosecutions may end in a stay, acquittal, or reversal, but lost time, professional reputation, relationships, and emotional stress are not recovered with the wave of a court stamp. This is precisely why the rule of law must not argue that an overly broad clause "will ultimately be correctly interpreted by the court". The criminal norm must inhibit state power already at its entry into the case, not after years of proceedings.

Journalists, academics, analysts, diplomats, non-profit organizations or people who normally communicate with foreign institutions are particularly sensitive. They acquire information, transmit information, map decision-making processes, analyze the security situation and sometimes receive foreign funding. These are legitimate activities in themselves. However, if the law combines broadly described actions with the intention to harm the security of the state, and the actual content of the criminal offense begins to depend primarily on proving subjective intent, there is a growing danger that ordinary actions will begin to be interpreted retroactively according to what opinions a person holds, with whom he communicates and who finances his activities.

This is the line at which the criminal state becomes dangerous, not because it necessarily persecutes someone intentionally, but because it creates a legal instrument that allows for very different interpretations.

The foreign inspiration is also noteworthy. German law for classic agency activity works directly with the intelligence service of a foreign power and more specifically defines the nature of intelligence activity. This is a significantly more definite construction than the general Czech "performs activities for a foreign power". If the Czech legislator wants to be inspired by Germany, he should first of all adopt its restrictive features, not choose only individual forms of conduct from foreign laws and insert them into a broader Czech general clause.

The irony of the whole situation is even deeper. In its program statement, the current government wrote quite clearly: "The law must not allow selective punishment through vague wording. Therefore, we will abolish the crime of unauthorized activity for a foreign power." The same commitment was taken over in the government's legislative work plan. Today, instead of canceling it, work is being done to rewrite it, and even before creating her proposal, Lenka Bradáčová publicly took the position that the criminal offense should essentially be preserved.

That in itself is not illegal. The government can change its legislative opinion and the Supreme Prosecutor's Office can submit expert suggestions. But precisely in criminal law, a legitimate institutional question arises: to what extent should the body of the public prosecution system, which will subsequently use it in criminal prosecution, determine the form of the new facts? State representatives undoubtedly have significant practical experience. However, their perspective cannot be the only perspective. Equal weight must be given to the protection of the defense, fundamental rights, freedom of expression, the principle of proportionality and the experience of cases where criminal proceedings have ended as unfounded.

After all, the history of § 318a is not an example of exemplary criminal legislation. Professor of criminal law Jiří Jelínek criticized it as unclear, vague, vague and easily misused and also drew attention to the way it was adopted, the extent of criminalization, the criminality of preparation and the practically zero legislative vacancy period. Although the Constitutional Court did not annul the law, at the same time it itself found a violation of the rules of procedure in the legislative process at the end of the parliamentary debate, although not to the extent justifying the derogation of the law.

State security is a legitimate value. But it was in the name of safety that historically the most dangerous rubber facts were created. A democratic state cannot be distinguished from an authoritarian state by whether it has means against foreign agents. It is known by whether the law can legally distinguish a foreign agent from a journalist, scientist, political critic or person with an inconvenient opinion before the criminal machinery is set in motion against him.

If the new § 318a is to stand, it is not enough to attach a few examples. The law must exhaustively or at least extremely precisely define the criminal act, require objectively demonstrable interference by a foreign power, actual illegality and a concrete, real and immediate threat to the protected interest. It must have a clear boundary between journalism, science, civic activism, legitimate political activity and ordinary international cooperation.

Otherwise, it may happen that instead of repairing the rubber section, we will only receive a rubber section with instructions for use.

And that would not protect the rule of law from foreign power. This would be the creation of another powerful tool, against the possible misuse of which the rule of law will have to protect its own citizens.

Source:

1. HRUBEŠ, Karel. 2026.Lenka Bradáčová's office proposed a change to the section against foreign agents. "It will be a ministerial proposal," reports the critic. iROZHLAS.cz, 21 September 2026. Available from:iROZHLAS - NSZ proposal to amend § 318a  

2.     THE CONSTITUTIONAL COURT. 2026.Finding Pl. ÚS 5/25 of 4 February 2026, No. 42/2026 Coll. – The constitutionality of the criminal offense of unauthorized activity for a foreign power.Brno: Constitutional Court. Available from:NALUS - Pl. ÚS 5/25

3.Act No. 24/2025 Coll. amending Act No. 65/2022 Coll. and other related laws.Collection of laws of the Czech Republic. Available from:Act No. 24/2025 Coll.  

4. JELÍNEK, Jiří. 2025.Above the first amendment to the Criminal Code in 2025.Advocacy Journal, 11 Apr. 2025. Available from:Lawyer's diary - professional criticism § 318a

5. GOVERNMENT OF THE CZECH REPUBLIC. 2026.Program statement of the government.Prague: Office of the Government of the Czech Republic. Available from:Program statement of the government