The Opinion Of The Full Court In The Matter Of The Interest Rate Fixation Of Acts Of Criminal Procedure

Original Language Title: stanovisko pléna ÚS ve věci úkonů trestního řádu

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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.

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