439/2010 Sb.
The COMMUNICATION FROM the
The Constitutional Court
The plenary adopted the Constitutional Court under the SP. zn. PL. ÚS-St. 30/10 of 30 May.
November 2010 in the composition of Stanislav Package (Judge-Rapporteur), František
Duchoň, Vlasta Formankova, Turgut Güttler, Pavel Holländer, Ivana Janů,
Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým,
Pavel Rychetský, Miloslav Výborný, Elisabeth Wagner and Michael April
pursuant to section 23 of law No. 182/1993 Coll., on the Constitutional Court, in the case of legal
opinion (II). the Chamber of the Constitutional Court in the case conducted under the SP. zn. II. THE TC
2369/08, which departs from the opinion in finding SP. zn. (I).
TC 671/05 of 22 December 2004. February 2006 and in finding SP. zn. III. TC 655/06 of
on 23 December 2005. May 2007,
This opinion:
To acts according to section 114 of the Act No. 141/1961 Coll., on criminal court proceedings
(code of criminal procedure), as amended, which consists in removing the
"scent traces, removing a sample of the hair and the bukálního smear, designed to
is to obtain objective evidence for forensic examination of existing and
that do not require the active conduct of the accused or suspect, but only
leave to their design, cannot be viewed as the actions by which would be
the accused or suspect to be compelled to constitutionally unacceptable degree of self-accusation.
In order to ensure interoperability of the accused or suspect in the procurement of these
evidence is therefore not possible, legitimate law enforcement resources.
Justification
(I).
1. The Constitutional Court was on 22. September 2008 delivered a constitutional complaint
the complainant r. g. against the resolution of the police of the Czech Republic,
The district Directorate of Prague III service of criminal police and
investigations, 5. General Crime Department, of 27 June 2002. March 2008
ČTS: the ORIII-2748/CRIMES-2005, and the resolutions of the District Court for Prague 8 of
July 4, 2008, SP. zn. NT 2058/2008. According to the schedule of work this
the complaint challenged the II. the Chamber of the Constitutional Court, the judge-rapporteur is to
Stanislav Package.
2. the constitutional complaint, the complainant identified above rail against the decision
the police authority and the District Court for Prague 8, on the basis of his
was according to § 66 of Act No. 141/1961 Coll., on criminal court proceedings
(code of criminal procedure), as amended, imposed a fine of riot
in the amount of CZK 15,000, because he has resisted the call of the police authority within the meaning of §
114 criminal procedure and refused the subscription by smell the comparative footprints.
II.
3. In connection with his practice, II. Chamber of the Constitutional Court
He came to the legal opinion, a derogatory from the opinion in findings
SP. zn. I. ÚS 671/05 of 22 December 2004. February 2006 (N 41/40 SbNU 341 ^ *) and sp.
Zn. III. TC 655/06 of 23 December 2003. May 2007 (N 89/45 SbNU 303).
4. Finding SP. zn. I. ÚS 671/05 the Constitutional Court gave the right opposition
the complainant in that direction, it cannot be through fines forced to
to enlist, or their synergies allow a measure of proof,
that could be used against him in criminal proceedings; referred to
the procedure would be forced to conduct that is no longer to be regarded as
self-accusation. The Constitutional Court with a reference to the Charter of fundamental rights and
freedoms ("the Charter"), specifically article 37 paragraph 2. 1, article 40 of the
paragraph. 2, 3 and 4 of the Charter, article 6 (1). 1, 2, and para. 3 (b). (c))
Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as "the Convention")
and article 14, paragraph 1. 2 (a). 3 (b). (g)) of the International Covenant on civil
and political rights deduced that the aforementioned constitutional law, namely the prohibition of
coercion of another privilege against self-incrimination own testimony, can be understood in a broader
range so that no other evidence against each other, no one is obliged to
provide. Save the fine pursuant to section 66 paragraph 1. 1 code of criminal procedure
in circumstances where the accused had refused assistance in providing evidence (to tolerate
removing the comparative odor feet) that it could usvědčovat, constitutional
the Court declared inadmissible the way enforcement of the constitutional synergies
of the accused. Such an interpretation of the code of criminal procedure in his opinion
did kautely mentioned above contained in the Charter and the international
the treaties.
5. in the case conducted under the SP. zn. III. TC 655/06 with the Constitutional Court dealt with the
a similar issue, which touches the now, the present constitutional
the complaint, and, like finding SP. zn. I. ÚS 671/05 appeal verdict
founded on the allegation that the imposition of fines for failure to comply with order
the obligations imposed in paragraph 1, the provisions of § 114. 2 and 4 of the criminal procedure code,
respectively, for disobeying the challenges to provide a sample of hair and
buccal smears, has been infringed the fundamental right of the complainant, in accordance with article
37 para. 1, article 40, paragraph 1. 2, 3 and 4 of the Charter and article 6 (1). 1, 2, and
paragraph. 3 (b). (c)) of the Convention.
6. II. Chamber of the Constitutional Court with opinions in the above-cited handsfree
the findings do not adopt, which is guided by the following considerations, which
have been previously outlined in a separate opinion, judge Jan Musil
attached to the finding of SP. zn. III. TC 655/06 of 23 December 2003. May 2007.
III.
7. Constitutionally guaranteed by the right not to be compelled to the privilege against self-incrimination, so
to submit evidence against each other under the forcing, the dovozováno of article 37
paragraph. 1 of the Charter, which enshrines the right of every person to refuse to testify,
If she caused the danger of criminal prosecution himself or the person
nearby, and specifically from article 40 para. 4 of the Charter, which confers the right to
to refuse to testify, and the accused of this right must not be accused
in any way deprived.
8. This rule, allowing the accused neusvědčovat his testimony alone
himself, was in the Czech constitutional order, similar to the constitutional
the laws of many advanced democratic States, introduced after the pattern of the fifth
the Appendix of the American Constitution of 1791 and is considered part of the so-called. Bill
of Rights. Literal text of this provision ("no person shall ... be
compelled in any criminal case to be a witness against himself "-
"no one may be compelled in a criminal case to acting as a
a witness against himself ") was originally interpreted in the narrow sense of the word,
that the prohibition on coercion applies only to the interrogation of the accused
(the suspect) or other verbal communication with the accused. Only in the
the further development of case law in the U.S. and in European countries has been extended
the interpretation of this provision so that the accused may not be compelled to
not only to give evidence, but not to another active negotiations, which would contribute
the procurement of the evidence against each other. In legal doctrine, this rule is
expressed in the Latin formula "nemo tenetur se ipsum accusare (" no one "
is not obliged to blame himself "). «(see different opinion on the
finding SP. zn. III. TC 655/06, which joined judge Jan Musil).
9. For active negotiations with foreign case law considers for example. write
handwritten text (font test) to písmoznalecké identification, walk away and
other motor tests followers physical coordination when you called. outpatient
examination of symptoms of intoxication, carrying out tasks related to the exam
an attempt to (cf. section 104 c of paragraph 1. 4 of the code of criminal procedure). For the implementation of
the listed acts, the accused may be called upon, possibly also summoned
or brought to them, however, may not be compelled in any way, including
the ability to save fine.
10. for the case significant is then mainly opinion, that for the right to remain silent and
complain itself takes the European Court of human rights (hereinafter referred to
"European Court"). According to its settled case law include the right
to remain silent and the right to avoid contributing to the accusations against himself to the generally
accepted international principles that-although they are not in the article. 6 of the Convention
specifically mentioned are the very essence of the concept-just the process in
meaning of article 87(1). 6 of the Convention. The right to avoid contributing to the actual charges
assumes that the State authorities are trying to prove the guilt of the accused, without
could use evidence obtained under duress or by forcing them to
against the will of the accused. In this respect, this right is closely linked to the
the presumption of innocence (article 6, paragraph 2, of the Convention). Application of the principle "nemo
"to protect the accused tenetur before coercion, by bezprávným
State authorities and thus contribute to the prevention of miscarriages of Justice and to the
ensuring a fair process (see the judgment of the European Court in the case
Saunders against Uk No. 19187/91 of 17 May. December 1996,
judgment in case Heaney and McGuinness against Ireland # 34720/97 of 21 April.
December 2000, the judgment in case J. B. against Switzerland no 31827/96 of
3 December 2004. in May 2001, and more). On the other hand, the European Court accepts
the right to remain silent and the right to complain of the self are not absolute rights and
It is possible to restrict some degree of coercion, which, however, must not be
"abuzivní".
11. In connection with the right not to be compelled to accuse himself of the European
the Court mentions two additional individual rights in a broader sense they form
its essence, right not to be forced into a confession (right to remain silent) and the right not to be
forced to contribute to his own charges in a different way than the statements made by
(objective or factual evidence). At the same time adds that the right to
not to incriminate oneself is primarily associated with respect for the will of the accused
the person to remain silent. In accordance with common practice in the legal systems of the Contracting
party and Zmluvy in other countries, the right to remain silent in criminal
control does not apply (is limited) on the use of the evidence, which are
obtained from the accused using coercion, but which exists independently of the
his will, which is the case, inter alia, documents obtained on the basis of
House searches, breathing tests, samples of blood, urine, hair, or
recordings of the voice and human tissues for the purpose of DNA testing (see e.g. above
cited the judgment in Saunders against Great Britain, the judgment in
things p. g. and j. h. v United Kingdom no. 44787/98 of 25 September 1998
September 2001). In other words, from the accused can request that acquiesced in the
for example, the withdrawal of documents and to remove those samples, acquiesced in the
even with the help of coercion, and despite the fact that these
evidence they are accusing. It is not acceptable to require only the active contribution
the accused when the taking of such evidence, which has been argued, in particular, in the
relation to the release of documents (see judgment in Funke against France no.
10828/84 of 25 January. February 1993, has already cited the judgment in case J. B.
against Switzerland).
12. A different mode of taking evidence from the point of view of the right not to incriminate oneself
relies on the different nature of the testimony and the evidence provided. The latter
nominated there are objectively, independently of the will of the accused, when their
procurement is proceeded against the wishes of the accused is required
However, after his active assistance, but only leave law enforcement
the acts. By contrast, the testimony, the Word does not exist objectively, independently of the
the will of the accused, and can be obtained only against the will of the accused, if this
broken physical or psychological, that is, by forcing them to. just lay low
the dignity of man as a free being (cf. B. Repík: European
Convention on human rights and criminal law, 1. Edition, Orac, Prague 2002
page 187).
13. the European Court however does not forget to point out that the obligation to submit to the
capacity manager to ensure the top marked objectively existing
the evidence for the assumed a person may be in accordance with art. 6 of the Convention and
forced, represents the interference with the right to respect for private and
family life (interference with bodily integrity of the person), home and
correspondence pursuant to art. 8 of the Convention, which is possible only under the conditions of article. 8
paragraph. 2 of the Convention, that is, in those cases where it occurs on the basis of
of the law and to the extent necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country,
Prevention of disorder or crime, for the protection of health or morals or the
protection of the rights and freedoms of others.
14. In connection with the possibility of real evidence and measures with the assistance of
physical compulsion has arisen before the European Court the question of the determination of the
the boundaries of State compulsion. In its case law inadmissible marked
not only the above mentioned active enforcement contribute to your
the allegations, but later in individual cases in which the accused (suspect)
refused in obtaining evidence, assess whether the nature and degree of
compulsion does not exceed the permitted framework, in other words, whether the degree of
used coercion does not exceed the intensity of coercion is usually necessary for the
obtain evidence of this type. The threat and imposition of penalties for failure to provide
information to the law enforcement authorities are incompatible
with the right to a fair trial, if essentially destroyed itself
the essence of the law complain themselves. When assessing whether use of the
compulsion by law enforcement authorities in criminal proceedings for the purpose of obtaining evidence
violated the right not to incriminate oneself, the European Court takes into
considerations, the four criteria. These are the nature and intensity of the compulsion, the existence of
the relevant procedural safeguards, the seriousness of the public interest in the examination and
the punishment of the offence and the manner and purpose of use
evidence (see e.g. the judgment in case against Germany no Jalloh.
54810/00 of 11 February 1999. July 2006).
15. the institutions of the Convention on several occasions examined the fulfillment
the conditions laid down in the case of the collection of blood or saliva sample against the will of
the suspect to investigate a crime or subject
the breath on the presence of alcohol in the blood (called alkotest)
conflict with the article. 8, possibly with the article. 3 of the Convention, however, have reported (see
decision in the matter of Schmidt against Germany no 32352/02 of July 5. January
2006, decisions on Tirado Ortiz and Lozano Martin against Spain
# 43486/98 of 15 December 1998. June 1999). The European Court expressly
the Court held that in order to obtain samples of blood, urine, hair, and human
the tissue for the purpose of DNA testing is the accused (suspect) required to passively
suffer only slight hit to their physical integrity. Procedures
applied by the competent authorities normally do not reach
the minimum threshold of seriousness required for the infringement of article 81(1). 3 of the Convention, and
Although they constitute an interference with the rights of the accused (suspect) on
private life, they are generally justified under art. 8 (2). 2 of the Convention
as necessary for the prevention of crime (judgment in case Jalloh
against Germany, cited above).
16. as outlined Above to the right of access to his own charges at nepřispět
getting objective evidence is of foreign legislation and
the case-law that, when the enforcement of the obligations of the accused (suspect)
to submit to an examination of the body and other similar acts as persuaders
aprobuje how to fined, considered as more lenient law enforcement
resource, so a direct physical coercion, to whose use should be
carried out after the heavily publicized Save fine.
17. in a separate opinion attached to the finding SP. zn. III. TC 655/06
as the example shows "section 81a of the German Code of criminal procedure (You), the Governing
the so-called. Körperliche His des Beschuldigten, according to which
enforceable under certain conditions is not only prolonging the non-invasive operations
(buccal smear, fingerprinting, removing a sample of the smell), but even
and invasive blood sampling or other biological materials-admissibility
such acts aproboval and the Federal Constitutional Court (BVerfGE 47 case law,
239, 248; BVerfGE 16, 194, 202; BVerfGE 17, 108, 117; BVerfGE 27, 211),
that, however, in their judikátech often stresses the need to take into account when
the specific application of these coercive measures to the aspect of the
of proportionality between the gravity of the offence and the degree of intensity
coercive. ".
18. Outside Europe can then point to the case-law of the Supreme Court
The United States, between the so-called. noncommuniactive act of passive (inactive) nature, to
the accused can be compelled to leave, without a breach of the prohibition of
coercion to self-accusation, ranks "violent fingerprinting,
x-ray examination of the body, stripping clothing, visible tattoos,
fingerprinting of the teeth, when the accused is obliged to remove the rekognici glasses,
get your mask, hat, wig, beard (numerous citations judikátů
The Supreme Court on this issue in: Kraft, o. k.-e.: Das nemo
tenetur-Principle daraus ergebenden sich und die Rechte des Beschuldigten
in der polizeilichen Vernehmung. Eine rechtsvergleichende His
des amerikanischen und deutschen Strafprozeßrechts. Hamburg: Verlag
Dr. Kovač, 2002, p. 133). The accused may be forced and involuntary
blood sampling on suspicion that he drove the car while drunk [judgment of the Supreme
Court in a case in California, Schember. 384 U.S. 757 (1966)]. ".
19. The admissibility of coercion in the implementation of certain acts as criminal
regulations examined in the past and the Constitutional Court. Constitutionally guaranteed by the right not to be
Therefore, the privilege against self-incrimination, to be compelled to submit evidence against each other under the
by forcing, the Constitutional Court had defined primarily in relation to the issue of the Institute
and the withdrawal of the case under the provisions of § 78 and 79 code of criminal procedure. In his
the case-law to distinguish it from the relevant attributes of the institutes (or forced)
the assets and the withdrawal of the case, stresses that, when (the Institute)
the release things in connection with the imposition of a fine is required after the riot
the accused while avoiding the volitional activity active, while in contrast,
withdrawal of the case it is clearly about the Act that the accused or suspect
only (under the conditions provided for by law) lays, respectively, shall be obliged to
to tolerate. In this sense, the application of the precautionary Act withdrawal of the case, and that
in terms of § 79 penal procedure, cannot be understood as coercion to release
real evidence against himself, since it is a constitutionally permissible forced
provide factual evidence, albeit against the will of the accused or suspect.
In this context, the Constitutional Court held that legal option
secure evidence for the purposes of criminal proceedings against the will of the criminal
the accused cannot be simplistically understood as illegal and unconstitutional
coercion of the accused to provide evidence against himself [cf.
find SP. zn. PL. ÚS 28/2000 of 20 December 2000. February 2001 (N 32/21 SbNU 285;
236/2001 Coll.); find SP. zn. III. TC 561/05 of 10 June 2005. March 2005 (N
54/36 SbNU 575); find SP. zn. III. TC 644/05 of 23 December 2003. March 2006 (N
71/40 SbNU 697)].
20. Similarly, the Constitutional Court and to further the investigation measures,
for rekognici to be carried out according to section 104b of the code of criminal procedure. In finding SP. zn.
III. TC 528/06 of 11 April. October 2007 (N 159/47 SbNU 75) the Constitutional Court
He stated that recognition is an act whereby the accused forced to merely
passively tolerate the registration procedure, and under the coercion of the blame has been
or to the sebeusvědčování mark. Therefore, the person is to perform poznávaná
recognition required to tolerate and may be limiting resources
(by showing that, by depositing fine) donucována to participate.
21. From the foregoing that the said rule nemo tenetur se ipsum accusare
You cannot, even in the sense of constant case law of the Constitutional Court, be regarded as
boundless. Its crucial to the fairness of the criminal process is
unambiguous, however, its application should not provide
the accused person (suspect) the absolute protection in the sense that the accused
(the suspect) was not required to participate in the investigative measures at all,
respectively of all.
22. The Act to which the complainant had refused to submit to in the matter of TechCrunch.com. I. ÚS
671/05 and in case now pending II. the Senate under SP. zn. II. THE TC
2369/08, IE. removing the "scent traces, as well as a sampling of hair and
bukálního smear, which the Constitutional Court dealt with under SP. zn. III. TC 655/06
one of the tasks carried out by the criminal procedure code in accordance with § 114.
23. paragraph 114 of criminal procedure in paragraph first down each
the obligation to submit to an examination of the body, if it is necessary to determine whether
are the tracks on his body or the consequences of the offence. The same paragraph
other stores any person obliged to acquiesce to her doctor or specialist
healthcare worker removed blood or another needed
Action (in General, the collection of biological material), if it is not associated with a hazard
for her health. The provisions of section 114 para. 3 of the code of criminal procedure then follows
that is, if evidence is required to establish the identity of the person who were on
the crime scene, is a person, it shall be obliged to tolerate the acts necessary for the
such a finding. If the person concerned does not comply with obligations,
It can be stored according to § 66 won a penalty code of criminal procedure. Condition
It is, however, that such person has been notified in advance of the consequences of failure to
(section 114 para. 5 of the code of criminal procedure). Since the amendment of criminal procedure
made by law No. 321/2006 Coll. suspected or accused persons also will instruct
on the possibility of the procedure in accordance with paragraph 114 of the criminal procedure code in the fourth section, which
under certain conditions, of prolonging the enforcement acts permitted under paragraphs 1
up to 3, with the exception of blood collection or other similar transaction involving
invasion of bodily integrity, and physical transportation.
24. the evidence obtained on the basis of the acts according to § 114 of criminal procedure fall within the
categories of evidence that exist independently of the will of the suspect, i.e..
those that may be subject to certain conditions, in accordance with the case-law
The European Court to get even with the aid of legal coercion, without having
nemo tenetur rule violated. This is a practice whose implementation
the accused (suspect) only tolerates, most often has only a duty to tolerate
ensure the existing sample mass. objectively The body of the accused
(the suspect) is a passive object does not require an inspection, with no
active cooperation. Appearance and attending to the Act for "active
the negotiations "within the meaning of the above is not considered, as well as enforcement of the
normal physiological functions (for example, when taking a breath, urine or
a sample of the voice).
25. more specifically, removing the standard sample odour is carried out
několikaminutovým by touching the sensor pachového to the body of the accused
(the suspect). Hair sampling is done by a small hair
hair, buccal smear is wiping the surface of the inner surfaces of the oral
the cavity of the sterile swab sampling kits, with standardised
It is not necessary to open the mouth of the person concerned, but only it is sufficient to "detachment"
lower lip, and then the inside of the stacks. This is a
the so-called. non-invasive method of collection of biological material, which are
absolutely painless and are not associated with a risk for the health of a person,
that is subjected to them. All operations can make the person itself according to the
the steps of a police officer, a police officer may also, or professional
a health care professional. Operations are technically in detail
described in the internal police regulations, are completely safe,
lasting for a few minutes and associated only with little interference to the
the physical integrity of the person, not polluting, or psychologically.
26. In terms of grammatical interpretation is necessary in connection with the so-called.
non-invasive method to take into account also the translation of the Latin sayings nemo
the ipsum accusare tenetur. In addition to the translation of applied in a different opinion
Jan Musil and quoted in paragraph 8 of this opinion is offered
generally handed down the translation of verbs used most often in tenere Czech
the meaning of "support", respectively "firmly support" (see in more detail by j. M.
Pražák, f. Novotný, j. Sedláček: Latin-English Dictionary the need to
gymnasií and real gymnasií, 15. Edition, Prague, 1941, p. 1200-1201)
in the passive infinitive then next to nedokonavého "to be bound"
equally perfective "to be bound". Latin indikativ praesentu while
has only one common form for expression of Czech sign nedokonavého i
dokonavého. In the case of removing the odor clues hair sampling or
bukálního smear when choosing just described the importance of the verb tenere-how to
was explained above-for the application of the procedure referred to in paragraph 25 of this
the opinions of the neminem tenent and, therefore, the principle is not violated the cited.
27. The procedure described in which to remove the scent traces, subscription
a sample of hair or bukálního smear, even though this is done not with the
consent of the accused (suspect), so it is in fact cannot be construed as a
the procedure unconstitutional, in violation of constitutionally guaranteed rights
the accused (suspect). The opposite interpretation would, in effect, led to the
contrary to the general interest in protecting society from crime and
to these have been identified and their perpetrators according to law in a fair
punished. Therefore, the code of criminal procedure in order to achieve this purpose, committed to the authorities
law enforcement detect evidence for the benefit and in the
the disadvantage of the accused from official duties (ex officio), so they are what
quickly as possible to the necessary extent clarified all the really important
for the assessment of the case, including the offender (§ 2 and 164
the criminal procedure code). For this purpose, they have contributed the acts falling within the
under the provisions of § 114 criminal procedure, of course, provided that when
their implementation is being complied with the procedure laid down by the legislation.
The methods used must comply with the General principles on which it is based
the activity of State bodies, in particular the rights and constitutionally guaranteed saving
freedom of the persons concerned (cf. § 2 (4) of the criminal procedure code, sections 9 and 11
Act No. 273/2008 Coll., on the police of the Czech Republic).
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinion referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, adopted the opinion of the full Court judge
Elisabeth Wagner.
* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 40,
find no 41, p. 341.
