The Constitutional Court found No 119 / 2022 Coll.
The Constitutional Court found of 22 March 2022 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
17.05.2022
119
FIND
The Constitutional Court
On behalf of the Republic
On 22 March 2022, the Constitutional Court decided under sp. zn. Pl. ÚS 7 / 18 in plenary composed of Vice-President Jaroslav Fenyk and Judges Louis David, Josef Fiale, Jan Filip, Jaromír Jirsa, Tomáš Lichovník, Vladimir Sládeček, Radovan Suchánek, Pavel Šámal, Vojtěch Šimíček, Milady Tomková, David Uhír and Jiří Zemánek (Rapporteur) on the proposal of the Municipal Court in Prague, for which is acting on behalf of the Parliament of the Czech Republic, to abolish § 65 (1) in Words and to remove biological samples from the Chamber of the Parliament, "and to obtain as a subsidiary of the Court of Procedure," and paragraph 5 of Law No 273 / 2008 Coll.
as follows:
I. The proposal to repeal Article 65 (1) of Act No. 273 / 2008 Coll., on the Police of the Czech Republic, as amended, "and to take biological samples to obtain information on genetic equipment" is rejected.
II. The remainder is rejected.
Reasons
Recital of the course of the proceedings
1. In accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') in conjunction with Article 64 (3) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended (hereinafter referred to as" the Constitutional Court'), the appellant [Municipal Court in Prague (hereinafter referred to as "the Constitutional Court ') seeks the annulment of Article 65 (1) in words' and to take biological samples to obtain information on genetic equipment 'and the entire Article 65 (5) of Act No 273 / 2008 Coll., on the Police of the Czech Republic, as amended (hereinafter referred to as" the Police Act').
2. An action by A.M. ("the plaintiff ') against the illegal intervention of the Police of the Czech Republic (" Police' or "Police Authority ') is pending in proceedings before the Municipal Court under sp. 10 A 150 / 2015. The illegal intervention is intended to involve the summons of the plaintiff pursuant to Article 59 of Act No. 500 / 2004 Coll., the Administrative Order, to carry out identification tasks (identification of bodily characteristics and removal of dactyloscopic and biological samples of the plaintiff) in accordance with the procedure laid down in Article 65 of the Police Act. The defendant in this proceedings was originally the Ministry of the Interior, after a change of legal perspective on the case (in connection with the resolution of the extended Senate of the Supreme Administrative Court of 9 December 2014 No. Over 224 / 2014-53) and the subsequent modification of the action by the applicant became the police (namely the Regional Directorate of the Police of the City of Prague). The municipal court ordered the police to refrain from taking a decision on the application of the applicant's dactyloscopic fingerprints, the identification of his physical characteristics, the measurement of the body, the acquisition of visual, sound and similar records and the collection of biological samples to obtain information on genetic equipment for the purposes of future identification by a preliminary measure in this proceedings (order of 8 January 2016 No 10 A 150 / 2015-84). Thus, biological samples have not yet been taken from the plaintiff. In the applicant's view, the collection of biological samples is not proportionate as it is prosecuted for a minor act which is not related to any criminal activity which can be detected by identifying the offender using his deoxyribonucleic acid profile (hereinafter referred to as" DNA' or "DNA profile '). Moreover, the applicant points out that it has not yet been convicted. The legal arrangements for the collection and, above all, the storage of biological samples are, in his view, insufficient as it is not precisely stated after which time the samples are to be destroyed.
3. It was established from the file of the Municipal Court (sp. zn. 10 A 150 / 2015) requested by the Constitutional Court that criminal proceedings have been initiated against the claimant and against other persons (Regional Directorate of the Police of the City of Prague, Criminal Police and Investigation Services, Economic Crime Department, 3rd Division) of 27.5.2014 No. KRPA- 129545-80 / TČ- 2013- 000093- NL in respect of the continuation of the crime of infringement of competition rules pursuant to § 248 (2) Alinea third and paragraph 4 (b) of Act No. 40 / 2009 Coll., criminal law, as amended, committed in the form of a participant in the WPB Capital case, by the cooperative. In this context, after the start of the prosecution, the applicant was summoned by the competent police authority to carry out the identification operations under Section 65 of the Police Act for the purpose of the procedure under Section 65 (1) (a) of the same Act. In the case of the claimant, no procedure was chosen pursuant to § 114 of Act No. 141 / 1961 Coll., on criminal proceedings of the Court (Criminal Code), as amended. The applicant considers a summons for the execution of the identification data to be unfounded and unfounded as the police authority has not initiated and is not in charge of administrative proceedings, nor has it established an administrative file in which the applicant has access to the possibility of checking, when, where, where and for what purpose his personal data is handled. However, the police authority carries out the summons under the reference number of the criminal proceedings, which, according to the applicant, is incorrect. The applicant also points out in the application that the order initiating the prosecution was annulled in respect of his complaint in the scope of 10 out of the 12 specified acts.
Recap the content of the proposal
4. The municipal court proposes to abolish the contested provisions for conflict with constitutional order, since the police are allowed to take samples of biological material, inter alia, to any person who has been accused or who has been informed in a brief criminal procedure of a suspected offence. With regard to the retention period of such samples, Section 65 of the Police Act contains only a very vague fifth paragraph, according to which the police retain the personal data, in a simplified manner, will destroy them as soon as they are not needed to perform their tasks.
5. The Municipal Court states that the application of Paragraph 65 (1) of the Police Act would undoubtedly have taken place in proceedings before the Municipal Court, since it is precisely this provision that gives the defendant the power to take biological samples from the claimant, for which the action under appeal has been brought. The municipal court considers that, although the plaintiff is defending itself only against a summons for the purpose of taking a biological sample, the whole of the collection rules and, above all, the preservation of biological material which would have been withdrawn from him after the summons are relevant to the decision on his application. The removal and subsequent preservation of biological material constitutes inseparable interference with the applicant's rights. Therefore, the constitutional conformity of the biological sampling legislation for the DNA profile cannot be assessed without taking into account the subsequent storage arrangements for these samples.
6. In this context, the municipal court points out the decision of the European Court of Human Rights ("ECLP ') of 22 June 2017 on Aycaguer against France, complaint No 8806 / 12, where the compliance of the entire arrangements for the collection and storage of biological samples was assessed, although, in the case of the complainant, sampling did not take place as the withdrawal refused to appear for which he was punished in the proceedings before the French courts. The municipal court believes that, although biological samples have not yet been taken by the claimants in the present case and therefore have not been kept in the police database, it is entitled to submit to the Constitutional Court not only the provisions of the law relating to the power of the police to withdraw the biological sample but also the provisions relating to its retention, since both aspects may have an impact on the veracity of the intervention action in question. In the event that the Constitutional Court finds that Article 65 of the Police Act is contrary to the constitutional order, it would be necessary to conclude that the call by the prosecutor to take biological samples pursuant to that provision is unlawful. It is therefore a question which is relevant to the proceedings before the municipal court.
7. The Municipal Court is further concerned with the broader context of collection of DNA profiles by the State. It points out that the acquisition and retention of DNA profiles may constitute a serious interference in the privacy of the individuals concerned, in particular in their physical integrity. A wide range of information about the agent or related ties may then be obtained from the stored DNA profile, with a risk of misuse. Therefore, the acquisition and preservation of DNA profiles must be subject to increased control and must be regulated by law and not by internal police regulations. The conditions for their storage, handling and subsequent disposal should also be laid down. The Municipal Court does not question the importance of analysing DNA profiles for the detection of criminals, but points out, on the other hand, that this is a method of identifying persons that may lead to incorrect results. The creation of a wide database of DNA profiles does not necessarily lead to measures of irreversible evidence of the identity of perpetrators of a particular type of crime.
8. The Municipal Court considers that the relevant legislation does not comply with the strict requirements laid down by the ECHR case law on Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') concerning interference in privacy and the collection of personal data. In his view, the contested provisions are contrary to Articles 7 (1) and 10 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). Intervention in these fundamental rights, which is allowed in Section 65 of the Police Act, for its vagueness and lack of procedural guarantees does not fulfil the conditions for the limitation of fundamental rights under Article 4 (2) of the Charter. The Municipal Court points to the precaselaw of the Constitutional Court [the findings of 22.3.2011 sp. zn. the decisions of the Constitutional Court are available at http: / / nalus.ujud.cz], which concerns interference with the right to privacy. The ECHR's case-law relating to Article 8 of the Convention then recalls the judgment of 4.12.2008 S. and Marper v United Kingdom, complaint No 30562 / 04 and 30566 / 04, in which it was found to be contradictory to the Convention, which allowed the retention of DNA profiles, regardless of the severity and type of crime and without any time limit on the storage of samples taken. In Aycaguer's judgment against France, the ECHR found the French regulation insufficient. The subject of criticism in this case was also the possibility of taking biological samples to the convicted persons who committed all offences without any differentiation in their severity, as well as the extreme length of storage of the DNA profiles obtained (40 years), while the persons concerned were not allowed to request the deletion of such data from the database. In accordance with the Convention, the ECHR considered only such legislation where the withdrawals concerned only the perpetrators of more serious crime and it was clearly established, in view of the seriousness of the individual cases, how long the DNA profiles could be retained (e.g., Case No 7841 / 08 and No 57900 / 12 Peruzzo and Martens v Germany).
9. It points out that the criteria arising from the ECHR case-law are reflected in other international legal documents, expressly mentioning Recommendation No R (92) 1 of the Committee of Ministers of 10.2.1992 to the Member States of the Council of Europe on the use of deoxyribonucleic acid (DNA) analysis under the criminal justice system [hereinafter referred to as "Recommendation No R (92) '].
10. The determination of the adequacy criteria for interference in the integrity and privacy of the person to whom biological samples are taken is de facto transferred to the internal police regulations or to the assessment of an individual police officer carrying out a specific sample. This, however, empties the requirement of both the Charter and the Convention to establish specific criteria by law. The only concrete criterion laid down in Section 65 (1) (a) of the Police Act is the suspicion of a criminal offence. However, according to the municipal court, this restriction is not sufficient, as there are relatively little serious offences among intentional offences.
11. It considers that the municipal court and legislation are insufficient to determine the retention period of biological samples taken. The criterion set out in Section 65 (5) of the Police Act, according to which personal data will be disposed of as soon as they are no longer needed to carry out police tasks, is so general that it completely transmits the adequacy assessment to internal police regulations or application practice. Such a condition opens up the discretion of the police and the possibility of storing biological samples for any abuse. The law also does not regulate the situation where a biological sample is taken from the defendant, who is subsequently not convicted. Such a situation is contrary to the principle of presumption of innocence in the light of the judgment in ECHR S. and Marper v United Kingdom. Even internal police regulations cannot heal the shortcomings of legal regulation. The Constitutional Court, in its decision of 20 June 2013, sp. zn. Transferred to the present case, if the law does not lay down specific criteria for the collection of biological samples and storage of DNA profiles, the determination of these criteria, such as the type of crime that the person concerned should have committed, cannot be entrusted with lower legal force rules.
12. Finally, the Municipal Court also criticises the lack of adjustment of procedural means to protect the person to whom samples are taken.
13. The Municipal Court is aware that the unconstitutional nature of the contested provisions lies not directly in their positive content, but in a lack of legislation which the legislator has not adopted. Therefore, the derogation of the contested provisions constitutes a means of forcing the legislator to revise the rules on biological sampling and retention of DNA profiles. Only when the legislator remains dormant should the lack of legal regulation be completely removed. Therefore, the municipal court proposed that the contested provisions of the Police Act should be annulled with deferred enforceability [for example, the finding of 27.6.2001 sp. zn. Pl. ÚS 16 / 99 (N 96 / 22 SbNU 329; 276 / 2001 Coll.) or of 23.3.2010 sp. zn. Pl. ÚS 8 / 07 (N 61 / 56 SbNU 653; 135 / 2010 Coll.)].
Text of the contested provisions
14. Paragraph 65 (1) of the Police Act reads (the contested parts of the text are underlined):
(a) persons accused of committing an intentional offence or persons who have been notified of a suspicion (18) for committing such an offence;
(b) persons in prison for the commission of an intentional offence;
(c) persons to whom protective treatment or protective detention has been imposed; or
(d) persons found for whom a search has been made and whose incapacity is restricted;
to detect dactyloscopic prints, to detect physical characteristics, to perform body measurements, to take visual, audio and similar records and to take biological samples to obtain information on genetic equipment. ';
15. Paragraph 65 (5) of the Police Act reads: "The police shall dispose of personal data obtained pursuant to paragraph 1 when processing is not necessary for the purposes of preventing, seeking or detecting crime or prosecuting criminal offences or ensuring the security of the Czech Republic, public order or internal security."
Recital of the observations of the parties and the intervener
16. Pursuant to Articles 42 (4) and 69 (1) of the Law on the Constitutional Court, the Constitutional Court sent an application for annulment of the contested provisions to the Chamber of Deputies and the Senate as parties to the proceedings and to the Government and the Ombudsman, who are entitled to intervene as interveners. At the same time, pursuant to Article 48 (2) of the Law on the Constitutional Court, he requested an opinion from the Office for Personal Data Protection ("the Office ').
Observations of the Chamber of Deputies
17. In its observations of 8 March 2018, the Chamber of Deputies limited itself only to a brief description of the progress of the legislative process which led to the adoption of the Police Act, including the contested provisions. To this end, it states that the law was passed by the necessary majority of Members of the Chamber of Deputies, signed by constitutional officials and duly declared. It leaves it to the Constitutional Court to assess its constitutionality.
Observation of the Chamber
18. In its observations of 19 March 2018, the Senate is also devoted only to a description of the progress of the legislative process, with the fact that the Police Act has been discussed within the limits of the Constitution established competence and in a constitutional manner. It also leaves the Constitutional Court to examine the constitutionality of the contested provision. The Senate further noted that the Permanent Commission of the Senate on Privacy which discussed the draft law stated that it was awaiting the preparation of amendments to improve certain provisions so that the principle of the protection of personal data and the privacy of citizens was more respected. The explanatory memorandum showed that the purpose of the Police Act, including the contested provisions, should have been only and only possible future identification of the person. This legislative objective, combined with the principle of proportionality, creates a legal obstacle to any other use of registered DNA profiles.
Government observations
19. The Government sent a detailed statement to the Constitutional Court proposing that the Constitutional Court reject the application by the Municipal Court for annulment of the contested provisions. It states that the rules on the collection of biological samples are sufficiently precise as they determine at the level of the law under which conditions and for what purposes biological samples can be taken, while at the same time, taking into account the necessity and proportionality, the headings of persons for whom the biological sample obtained for the purposes of future identification can be processed are sufficiently precise. The legislation is sufficient for the standards laid down in both the ECHR case-law and the Constitutional Court. According to the Government, the protection of personal data is also sufficiently ensured. The controller of personal data is not only in this but also in other cases logically the police. The law on police cannot be interpreted in isolation, but always under the current application of the rules contained in the law on the protection of personal data [Note at the time of the proposal was Act No. 101 / 2000 Coll., on the protection of personal data and on the amendment of certain laws, as amended, ("the Act on the protection of personal data '), which was repealed and replaced with effect from 24 April 2019 by Act No. 110 / 2019 Coll., on the processing of personal data]. The Government also stresses the position of the supervisory authority, which is the OU.
20. Furthermore, the government does not agree that the range of persons to whom a biological sample can be taken is too broad. From her point of view, it cannot be excluded that the perpetrator of economic crime could not commit a violent crime. It points out that the DNA profile serves only and only for individual identification of a particular person, but does not indicate any signs or predisposition of the person. Only information on whether the sample belongs to a man or a woman may be calculated from the biological samples taken, except for mutual compliance. The purpose of forensic genetics is to identify unknown biological material found at the crime scene with a specific person, which requires comparative DNA profiles. It points out that the criminal database, based on the principles of modern privacy rules, completely eliminates the possibility of their abuse. The negative consequence of maintaining the DNA profile in the criminal database can only occur for the person concerned if it is identified with a trace found at the crime scene.
21. The Government also does not agree with the appellant's claim that the collection of biological samples should be a more invasive intervention in physical integrity compared to the scanning of dactyloscopic prints [to this point the finding of the Constitutional Court of 9.12.2010 sp. zn. II. ÚS 2369 / 08 (N 244 / 59 SbNU 489) or the opinion of plenary of 30.11.2010 sp. zn. Pl. ÚS- st. 30 / 10 (ST 30 / 59 SbNU 1095; 439 / 2010 Sb.)]. It also contradicts the applicant's references to expert articles that are not related to the problem, or it does not imply that forensic DNA analysis has a greater error rate than other evidence.
22. The Government also refers to the appellant alleging a conflict with the ECHR case-law, namely in the S and Marper case against the United Kingdom. It points out that only the aspect of the maintenance of fingerprints and biological samples and DNA profiles of persons suspected of committing a specific crime but not convicted is justified under Article 8 (2) of the Convention has been assessed in this regard. According to the Government, this decision should therefore be interpreted in the context of facts and not draw conclusions which have not been examined in the present case. The government believes that the Czech legislation does not suffer from shortcomings that have been criticised by the ESLP. It is submitted from the decision cited that the interference in the person's personal integrity was justified by its previous unlawful and intentional conduct, which is why it had to bear the consequences of that action. The reference to the ECHR's decision in the Aycaguer case against France does not consider it appropriate, as Czech law sufficiently distinguishes between conduct having the characteristics of a crime and an offence. According to the Government, it is neither appropriate, or long over, to recommend R (92).
23. The Government further believes that the processing and collection of biological samples are carried out on the basis of a sufficiently clear and predictable legal title, which results from Section 2 of the Police Act. Biological samples and DNA profiles obtained from them may contribute to the detection, investigation and prosecution of criminal offences, which constitutes a legitimate interest in protecting public order. It points out that neither the Police Act nor any other legislation provides for a specific legal regime for processing biological samples and DNA profiles. According to the applicable legislation, the DNA profile is seen as any other personal data. The operation of the database shall be governed by the general conditions for the processing of personal data. Paragraph 65 (1) of the Police Act, which allows the police to obtain data according to which it can identify in the future persons who commit a crime and leave traces of themselves, is crucial for taking biological samples. In particular, the subjective aspect of the offence is taken into account. The Government points out that the identification acts of the police are entitled to be carried out by persons facing criminal proceedings (criminal prosecution has been initiated pursuant to Paragraph 160 (1) of the Criminal Code or a suspicion has been disclosed under Section 179b (3) of the Criminal Code for the commission of a criminal offence). If the perpetrator of an intentional offence is committed, he shall be aware that such action will have negative consequences, consisting of the possibility of criminal proceedings, the imposition of a penalty, as well as the conduct of records. The Government is in agreement with the current practice of the courts, and considers the interference in the law of the persons concerned to be consistent, as well as justified and proportionate.
24. In the next part, the government generally refers to the protection of personal data. It states that the law on the protection of personal data (specifically Article 13) also applies to the police, as well as specific provisions on the processing of personal data and the acquisition of information in the Police Act. The DNA database is managed as any other set of data that the police collect and subsequently extract. This activity is then further regulated by the relevant internal rules. The content of the internal regulation cannot be contrary to law. Personal data shall be processed in private registers with specific access rights, for a clearly defined purpose and shall be subject to clearly defined rules. The Government also points out the specificity of the processing and use of personal data in criminal matters. It is of the opinion that General Regulation (EU) 2016 / 679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95 / 46 / EC (General Data Protection Regulation) does not apply to police activities in the detection of crime. In addition to this Regulation, there is Directive (EU) 2016 / 680 of the European Parliament and of the Council of the same day on the protection of individuals with regard to the processing of personal data by the competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal offences, on the free movement of such data and repealing Council Framework Decision 2008 / 977 / JHA (hereinafter referred to as "Directive No 2016 / 680 '), which should be implemented in the legal order of the Czech Republic, even with minor amendments (Note to Directive No 2016 / 680 was transposed into the Czech law on the processing of personal data). According to the Government, it is not possible to deduce from this Directive an explicit specific legal regulation (e.g. the operation of a DNA database).
25. The government also deals with the issue of the destruction of processed personal data. It also points out at this point that the retention of DNA profiles and their disposal is regulated in Section 65 (5) of the Police Act, which implies all duties of the police as manager of such personal data. In addition, this provision is specified by the binding order of the Police President on identification operations [see the Police President's order of 15 December 2016 No 275 / 2016, on identification acts ("the Police President's order No 275 / 2016 ')]. A distinction should be made between disposal of biological material and disposal of the DNA profile obtained from it. According to the internal instructions, the expert workplace is to dispose of the biological material used to determine the DNA profile within 1 year after processing. The police only keep a DNA profile that is comparable by nature to dactyloscopic fingerprint. In accordance with Section 20 (1) of the Personal Data Protection Act, the police have established precise criteria and procedures for processing personal data, including their destruction and retention periods. Where a criminal prosecution or acquittal is suspended against the defendant, his DNA profile is disposed of in accordance with the provisions governing the processing of personal data by the police, depending on the need for further processing of the DNA profile for the performance of police tasks.
26. The government shall also protect the rights of the data subject. The right of access of the data subject is provided by the so-called direct access, i.e. applicants contact the data controller directly. The legal basis for submitting a written request for communication of personal data relating to the person of the applicant is Section 83 of the Police Act (note that this provision was repealed on 23 April 2019 by the amendment made by Act No. 111 / 2019 Coll., amending certain laws in connection with the adoption of the Personal Data Processing Act). Applications shall be dealt with in the form of a communication from the Police President; failure to comply with the request shall be duly justified in such a way that it can be reviewed. The supervisory authority is the OU. The Government does not agree with the appellant that the Authority is only carrying out its control activities on an official basis, since it also accepts citizens' initiatives and complaints [cf. Article 29 (1) (c) of the Data Protection Act]. The data subject may also refer the matter to the court, both by bringing an action for protection against unlawful interference, instruction or coercion of an administrative authority ("intervention action ') and by actions for the protection of persons. Finally, the Government referred to the forthcoming new legislation (see the Personal Data Processing Act), which will further strengthen the rights of the data subject.
27. The Government also describes the purpose and activity of the criminal DNA database [§ 86 (a) of the Police Act as amended by 23.4.2019], the establishment of which was announced by the Office [§ 86 (b) of the Police Act as amended by 23.4.2019] and its security. The database administrator, i.e. the police, is obliged to take measures to prevent unauthorised or accidental access to, alteration, destruction or loss of personal data, unauthorised transfers, unauthorised processing or any other misuse. These measures are regulated in the relevant internal acts of the police. In this context, it states that the criminal database is designed as a system of two independent software programs [the CODIS system containing DNA profiles (developed by the FBI) and the INFO DNA system containing information on individual profiles]. The separation of both of these components complies with the database security requirements of Section 13 of the Data Protection Act. Access to the database is only possible from police terminals after entering the access password, and access is always recorded. Only 125 officers had access at the time of the statement. The government recalls that the DNA database is not publicly available, even within the police. The information that someone in the DNA database is being kept is not generally known.
28. The government explains what information the police are getting from the biological DNA sample taken. It points out that the DNA profile in the forensic area is only used to identify a particular person and no other purpose. There's no way of getting any information from the DNA profile on a particular person. The purpose is therefore to identify the unknown biological material found at the crime scene with a specific person, which requires comparison of DNA profiles of a particular person. Only information on whether the sample belongs to a man or a woman can be read from the DNA profile in addition to mutual agreement. In laboratory conditions, information can be obtained on the genetic equipment of a particular person, but the police do not have this technology. To the appellant mentioned, the government states that this data can be obtained by comparing DNA profiles with others. The detection of probable relatives of persons (so-called familial searching) is mainly used in comparing DNA profiles of relatives with those established from bodies of unknown identity. In theory, it is also possible to find related persons to trace them at the scene, but the police are not using this procedure. Further information on the likely racial origin of a person may be obtained. However, the detection of probable racial origin is only relevant when the DNA profile of the unexplained crime is established. The investigation of probable racial origin makes no sense in cases where the police took a biological sample directly from the accused or convicted person.
29. At the end of his statement, the government is devoted to the usefulness of DNA profiles in criminal investigations. It explains why the legislator has established that the defined range of persons is appropriate to the objective pursued. The range of persons to whom the police are authorised to take biological samples and keep their profiles takes into account the state of crime committed in the Czech Republic. With reference to police statistics and expert studies (even abroad), the government points to a long-term high proportion of recurrent offenders. These statistics and expert studies also show that, in the case of recurrent offenders, it is not only a repeat of a uniform but a significant number of cases of recurrence of non-uniform. For the perpetrators of murders, property crime is largely preceded. From that government, it concludes that forensic analysis of biological samples is fully used not only in the examination and investigation of violent and moral crime, but also has an essential place in property crime, where the proportion of recurrent offenders is highest, as well as in economic crime. If there is a restriction on the possibility of taking and processing biological samples of perpetrators of all types of intentional crime for the purposes of future identification, this would result in a loss of the police 'ability to detect e.g. serial property crime.
30. The Government concludes that it does not agree with the appellant's objections. Paragraph 65 (1) of the Police Act, in conjunction with other provisions of this Act and of the Act on the Protection of Personal Data, constitutes a sufficiently precise framework of legislation. The technical and organisational measures taken to ensure the prevention of abuse are at the maximum possible level (at least by separating both databases). The data subject shall have specified rights and the data controller shall have an obligation. The Government also rejects the appellant's view that it is necessary to limit the range of sampling persons to serious criminals. The range of data subjects is fully justified by the needs of law enforcement authorities. Intervention into privacy is minimal and balanced by the interest of society in protecting against crime, ensuring the right to life and protecting public order.
Observation
31. The Constitutional Court further requested the opinion of the Office as amici curiae. The EDPS first describes its activities and the legal framework (in particular the European) for the protection of personal data. It underlines the importance of the General Data Protection Regulation and Directive No 2016 / 680. It also deals with the concept of DNA, its character as personal data and the history of using the DNA profile identification method. It covers both the benefits and risks of processing biological samples and maintaining their database. In addition to the undisputed advantage of the effective fight against crime and the identification of an unknown person, risks include, in particular, the incomplete ability to guarantee accuracy (false positive or negative results), the risk of detecting sensitive data on health, the risk of central storage of DNA data, the provision of more information than is required for comparison functions [to this end, the opinion of the WP Working Group No 3 / 2012, which was established as an independent European Data Protection and Privacy Advisory Body pursuant to Article 29 of Directive 95 / 46 / EC of the European Parliament and of the Council (hereinafter referred to as "Opinion No 3 / 2012 ')].
32. It also deals with relevant data protection legislation. It states that genetic data are to be classified in a specific category of personal data to which a stricter protection regime is granted pursuant to Article 9 (1) of the General Data Protection Regulation. In the case of the management of DNA databases, the General Data Protection Regulation does not apply, but Directive No 2016 / 680, which responds to the specific nature of police and judicial cooperation in criminal matters. The objective of the Directive is the free movement of personal data between competent authorities in order to prevent, investigate, detect and prosecute criminal offences. In doing so, it refers to the Alinea 26 preamble to this Directive and its Article 4, which result from the principles of processing personal data, as well as to Opinion No 3 / 2012, which results from some practical recommendations (e.g. setting a maximum time for the storage of personal data and a regular review of the need for their storage; the maximum storage time should take into account the different categories of entities).
33. According to the Office, the management of the DNA database interferes with the right to personal data protection and the right to privacy. The Police Act does not contain an explicit authorisation to manage the DNA database, and it also lacks an adjustment to the more precise conditions of the DNA database management (in particular a precise definition of the time limits for keeping records or a more detailed treatment of personal data disposal). In the opinion of the EDPS, the scope of the offences that allow the sample to be entered into the database should also be narrowed. The regulation of personal data records is also very limited in the Police Act, as the possibility of establishing them can only be explained and the law itself lacks specific deadlines for the retention of records and more precise conditions of deletion, which are laid down only in the internal police regulations (see instruction from Police President No 275 / 2016). The EDPS does not consider the current legislation in the Police Act and the Police Implementing Regulation to be a sufficient legal basis for the retention of DNA samples, as evidenced by its opinions and decisions issued in the context of the control activity.
34. In another part of the SAO, it analyses the various issues at issue contained in the case law of the Supreme Administrative Court. First of all, the question is whether there is sufficient legislation in the Czech Republic concerning the collection of DNA profiles in the police database, or whether the legislation in force respects the minimum criteria laid down by the Council of Europe's recommendations and the ECHR case law. It does not agree here with the conclusion of the Supreme Administrative Court that the law of the Police Act on the processing of sensitive data complies with the minimum requirements for the legal basis for interference with the right to the protection of private life (see paragraphs 30 and 36 of the Supreme Administrative Court judgment of 24 October 2017 No 8 As 134 / 2016-138). The EDPS considers the correctness of the setting of the criteria applicable to the inclusion of the profile in the DNA database (the reason and seriousness of the offence, including the distinction of negligent and intentional crime) as another contentious point. It also raises the question of interpretation within the limits of the powers conferred on it by the Ministry of the Interior and the Office. This is a dispute between the Office and the police on the interpretation of legislation which regulates the performance of police tasks in a session with the relevant provisions of the Data Protection Act. As a final question, the Supreme Administrative Court's position on the submission of an application for annulment of Paragraph 65 (1) of the Law on Police to the Constitutional Court is addressed by the Office. In conclusion, this section of the SAO notes that the Supreme Administrative Court's case-law, contrary to the opinion of the SAO, considers the legislation in force to collect DNA profiles to be sufficient and satisfying the minimum requirements resulting from the Council of Europe's recommendation and the ECHR case-law.
35. In conclusion, the Constitutional Court summarises and proposes that the Constitutional Court should comply with the application by the Municipal Court for the annulment of the contested provisions by reason of their infringement of the right to the protection of personal data and privacy provided for in Articles 7 and 10 of the Charter and in the General Data Protection Regulation. The contested provisions do not constitute a sufficient legal basis for the management of the DNA database and there are insufficient safeguards to protect the right to the protection of personal data and the privacy of the persons concerned.
Communication from the Ombudsman
36. The Ombudsman informed the Constitutional Court that she had decided not to exercise her procedural right under Paragraph 69 (3) of the Law on the Constitutional Court and not to intervene.
Requests from other persons
37. The Constitutional Court also received requests from Lukáš Redl, represented by Mgr. Robert Cholenský, Ph.D., a lawyer, and the Association of Defence Councils of the Czech Republic, represented by JUDr. Mark Nespala, a lawyer, to grant the status of intervener under Section 76 (3) of the Law on the Constitutional Court. These requests were not granted by the Constitutional Court because the number of parties in the proceedings for the application pursuant to Article 95 (2) The Constitution is defined in Section 69 of the Constitutional Court Act. In this case, the status of a party or intervener may not be granted to persons who merely show a legal interest in the outcome of the proceedings pursuant to Article 76 (3) of the Law on the Constitutional Court [for example, the finding of 20.10.2004 sp. zl. ÚS 52 / 03 (N 152 / 35 SbNU 117; 568 / 2004 Coll.), the finding of 26.4.2006 sp. zn. Pl. ÚS 37 / 04 (N 92 / 41 SbNU 173; 419 / 2006 Coll.].
Further supporting documents
38. The Constitutional Court had the competent instructions of the Police President sent from the Czech Republic's Police Presidium (order 250 / 2014 and order 275 / 2016).
Abandonment of oral proceedings
39. The Constitutional Court noted that oral proceedings could not have brought a significant shift in order to clarify the case than those resulting from written acts of the parties. In the light of Article 44 of the Law on the Constitutional Court, there is no need to ask the parties about their views on the matter, so it was possible to rule on the matter without the oral hearing.
Assessment of the active legitimacy to submit a proposal
40. According to Article 95 (2) of the Constitution, if the court concludes that the law or its contested provisions to be applied in the resolution of the case are contrary to the constitutional order, it shall bring the matter before the Constitutional Court. It is further specified in Section 64 (3) of the Constitutional Court Act, according to which the Constitutional Court may file an application for annulment of the law or its individual provisions. The text of Article 95 (2) shall be complied with as a condition for the substantive discussion of such a proposal. The Constitution, in the sense that it must be a law to be applied in the resolution of the case, i.e. the law or its provision which is proposed for annulment, is to be applied directly by the appellant in the resolution of a particular case.
41. The Constitutional Court found this condition fulfilled in the case of a motion by the Municipal Court to repeal Section 65 (1) of the Police Act in words "and to take biological samples to obtain information on genetic equipment." In accordance with the procedure of the police pursuant to Section 65 of the Police Act, the Constitutional Court has already dealt with [cf., for example, the Resolution of 1.7.2014 sp. zn. IV. ÚS 1202 / 14, 4.3.2013 sp. zn. I. ÚS 3721 / 12 or 18.9.2013 sp. zn. I. ÚS 2661 / 13 (U 7 / 70 SbNU 593)]. Those constitutional complaints were rejected as inadmissible because of the possible application of the intervention action. The Constitutional Court stated that the protection of individuals' rights from interference by the police, unless the police act as a criminal authority, is guaranteed by the means of administrative justice. According to Section 82 of Act No. 150 / 2002 Coll., the Administrative Rules, as amended by Act No. 303 / 2011 Coll., apply that "anyone who claims to have been directly reduced to his rights by unlawful interference, instruction or coercion of an administrative authority which is not a decision and which has been directed directly against him or as a result of which he or she has been directly affected may seek protection against him or determine that the action was illegal '. According to Section 83 of the Administrative Rules, the defendant is, in such a case, an administrative body which, according to the plea, has intervened.
42. As a basis for reviewing the applicant's active legitimacy, the argument is that Article 65 (1) of the Police Act establishes the power of the police to take biological samples for future identification purposes in respect of defined circles of persons and to call them for collection. The intervention would take place immediately and irrevocably after the applicant had taken up the police call, would have come to the sample and would have taken the sample. The action is an instrument of defence of the plaintiff against his alleged interference with his rights and, if the municipal court is to decide on it, he will not be able to do so without the application of the contested provision of the law, of which he has doubts as to the constitutionality of which he has therefore put an application to the Constitutional Court. If the Constitutional Court would then consider the contested provision as an unconstitutional provision, it would also be necessary to refer the plaintiff to the police as an illegal intervention. The subpoena implies further action by the police and establishes the applicant's active legitimacy only with it as an inseparable part of it, since it cannot be taken without a call for sampling.
43. However, the different situation arises in the case of a motion by the municipal court to abolish Article 65 (5) of the Police Act. The Constitutional Court has repeatedly explained that the Court's active legitimacy to file a motion for annulment of the law or individual provisions of the law depends on the subject matter of the dispute and its legal qualifications. In other words, the court may apply for the annulment of only such a law, or its individual provisions, to be used in the resolution of the case by the general court. The consideration of such use must be justified, must be derived from the fulfilment of the conditions of the procedure, including the substantive legitimacy of the participants, and, if it is a substantive rule, from the unambiguous finding that such a regulation is to be applied in a particular case which is the subject of the present proposal, paragraph 11; the decision of 16.10.2007 sp. zn.
44. In the light of the conclusions of the Constitutional Court's resolution of 23 October 2000 sp. zn. Pl. ÚS 39 / 2000 (U 39 / 20 SbNU 353), the condition of the court's design authorisation set out in Article 95 (2) of the Constitution that the requirement of cancellation should be directed against the law "to be used when dealing with the case" is fulfilled, "in the case of the law or its individual provision, the application of which is to be immediate," or "its inevitable application is necessary, and not only hypothetical use or other broader context" [cf.]. It follows from the purpose and purpose of (specific) control of the constitutionality of legal standards that the law "to be used in the resolution of the case 'is only one (or that of its provisions) which obstructs the achievement of the desired (constitutional) outcome; If it had not then been removed, the outcome of the pending proceedings would have been different (cf. Resolution of 18.12.2012 sp. zn. This interpretation has already been described by the plenary of the Constitutional Court as part of the established case-law of the Constitutional Court [cf. the finding of 28 January 2014 sp. zn.
45. In the proceedings on which the application by the municipal court for annulment of the contested provisions has arisen, the applicant seeks an action for protection against unlawful interference, which he sees as having been summoned without legitimate grounds to take biological samples to obtain information on his genetic equipment. Therefore, in the case pending by the municipal court, which serves as the basis for the present proposal, only the constitutionality of the biological sampling itself and the summons to it under Section 65 (1) of the Police Act is subject to assessment. However, the subject of the assessment under this incident check is not the constitutionality of the conditions for the disposal of personal data obtained, i.e. the setting of these conditions in § 65 (5) of the same Act, since the disposal of such data can only take place after the collection and subsequent processing of the sample, i.e. not at the same time as the collection or recall of the data. Accordingly, the application of this provision will not be immediate, in time or in substance, but will only fall within the "broader context 'of the rules on collection, which is not sufficient as a precondition for a court procedure under Article 95 (2) of the Constitution. However, in the future, in the context of another, newly opened procedure, if, for example, there is a delay in the disposal of the sample or in the use of the potential for its retention provided for in Article 65 (5) of the Police Act, it is only a hypothetical situation at the stage under consideration that may or may not occur (unless the preservation of the sample by the police raises doubts as to the correctness of the procedure). As long as the applicant of constitutional conformity does not have to address the condition of the need to preserve the sample for the purposes of processing the personal data obtained by the collection at present, the setting of its wastage, establishing an immediate obligation for the police authority (" once') to dispose of the data, is not a legitimate requirement for a review by the Constitutional Court. Therefore, the subject matter of the proposal currently under consideration cannot be even a question as to whether the conditions for the liquidation of the sample under paragraph 5 of the contested provision may be a cause of the action of the applicant - the failure to comply with the call to come forward, even if the applicant considers it to be such. It could only happen to him if the actual risk of handling the sample was disproportionate to the legal purpose of its collection. However, this was not the case in the present case.
46. For these reasons, the Constitutional Court did not have to state on this part of the proposal that the contested Section 65 (5) of the Police Act - the appellant itself admits this possibility - is not a provision of the law "to be used in the resolution of the case 'within the meaning of Article 95 (2) of the Constitution and therefore cannot be taken into account in the applicant's active legitimacy to file a motion for its annulment under the cited article of the Constitution, in conjunction with Article 64 (3) of the Constitutional Court's Law, since it is not eligible for such review under the particular control of the standards in the present case.
Constitutional conformity of the legislative process of adopting the contested provision
47. The Constitutional Court is obliged, in accordance with Article 68 (2) of the Law on the Constitutional Court, to assess whether the contested law (its individual provision) has been adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure.
48. Given the fact that the appellant did not object either to the fault of the legislative process or to the breach of the legislature's constitutional competence, it is not necessary, in view of the principles of procedural economics, to examine this issue further and sufficient, in addition to taking into account the observations submitted by the Chamber of Deputies and the Senate, to establish the progress of the legislative process from a publicly available information source to http: / / www.psp.cz.
49. It was found from the observations of the parties, as well as from the House of Deputies, that the Government's draft law on police was negotiated in the fifth parliamentary term of the Chamber of Deputies as House Press No. 439. The Government submitted the proposal to the Chamber of Deputies on 28 February 2008. The contested provisions were already contained in the same form as the Government's proposal (House Press No. 439 / 0). The Chamber of Deputies gave its assent to the draft law at the third reading on 25 June 2008 at its 34th session in vote 175, when of the 174 Members present voted in favour of proposal 92, 79 voted against.
50. The Senate was referred to by the Chamber of Deputies on 8 July 2008. The Organizing Committee ordered the bill (Senate Press No. 301 in the sixth term) to discuss the Committee on Foreign Affairs, Defence and Security as a committee for the guarantee and constitutional legal committee. The two committees adopted a consensus resolution (Senate Prints 301 / 1 and 301 / 2) recommending the Senate to approve the bill as referred to by the Chamber of Deputies. The Senate discussed the bill at its 15th meeting of the sixth term of office on 17 July 2008. By order No 449 The Senate approved the bill as referred to by the Chamber of Deputies. The motion for approval was adopted in vote 30, when out of 65 senators present (Quorum 33) there were 52 for the motion, 2 opposed and 11 abstained.
51. The Police Act was delivered to the President of the Republic for signature on 21 July 2008 and subsequently signed it. Approved Act was published on 11 August 2008 in the Collection of Laws in the amount of 91 under number 273 / 2008 Coll.
52. Paragraph 65 of the Police Act later became subject to two minor amendments. The first amendment by Act No. 41 / 2009 Coll., on the amendment of certain laws in connection with the adoption of the Criminal Code, extended the list of persons affected by the registration of DNA to persons to whom security detention has been imposed by the Court, and the second amendment by Act No. 303 / 2013 Coll., which amends certain laws in connection with the adoption of the recdification of private law, only made a terminology revision of the provision in accordance with the terminology of the new Civil Code. None of these changes directly affected those parts of Section 65 of the Police Act which are contested by the proposal.
53. The Constitutional Court has verified that the Police Act, including the contested provisions, was adopted by a constitutional procedure, signed by the relevant constitutional authorities and duly declared.
Self-assessment of the proposal
General considerations
54. First, the Constitutional Court had to define the aspects of the constitutional review relevant to the assessment of the contested legislation.
55. A biological sample allowing the acquisition of information on human genetic equipment (DNA profile), listed in addition to other personal characteristics in Section 65 (1) of the Police Act, can be classified as so-called identification (biometric) data, i.e. data used to identify a particular person. Personal identification data is closely related to the concept of personality protection. The personality of a person essentially represents specific characteristics and differences in the nature, appearance and behaviour of each person. It is the natural individuality of man that is under human rights protection.
56. Therefore, the collection of biological samples to obtain information on genetic equipment, as well as their subsequent processing, storage and possible disposal, directly affects the constitutionally guaranteed rights relating to the integrity of the person, as well as the protection of privacy, private life and personal data. From a legal point of view, there is also overlap with the right to protection of personality in relation to identification data. The right to the protection of a person works with the concept of a personal nature, which, like the concept of personal data, is closely linked to a particular person. Every manifestation of a personal nature that we can assign to a particular person is a personal figure and as such is linked to the privacy of each person. While the concept of privacy usually does not constitute a clear and statically defined term, it can be seen relatively widely as a ability to control the procurement and use of human information - information privacy.
Constitutional dimension of the assessment
57. At national level, the relevant reference aspects of the constitutional review are enshrined in the guarantees of the democratic rule of law referred to in Article 1 (1) of the Constitution, in conjunction with Article 7 (1) of the Charter (inviolability of a person and of his privacy, reservation of the law - any limitation must be provided for by law) and Article 10 (2) and (3) of the Charter (right of protection from unauthorised interference in private life and from unauthorised collection, disclosure or other misuse of data on his or her person, the so-called right of information self-determination).
58. Guarantee of the inviolability of a person pursuant to Article 7 (1) In particular, the Charter should be understood as guaranteeing the right to maintain physical and mental integrity, which expresses the fundamental inadmissibility of any involuntary interference in a human body compartment and its consciousness, which in some cases may be broken by law (except for interventions qualified as torture and mistreatment under Article 7 (2) of the Charter which are absolutely and unabnormally inadmissible).
59. The right to information self-determination was defined in paragraphs 46 and 47 of the preamble to the finding of 14.5.2019 sp. zn. Privacy is one of the main elements of individual freedom, which is among the most important values of the democratic rule of law (Articles 1 and 2 (3) of the Charter, Article 2 (4) of the Constitution), and its protection is reflected in many different aspects, as demonstrated by the comprehensive establishment of privacy protection in the relevant provisions of the Charter.
60. The Constitutional Court has in the past repeatedly expressed its views on the nature of the right to privacy in its broadest sense and, for example, in the finding of 22 March 2011 sp. zn. In other words, the right to privacy also guarantees the right of an individual to decide at his or her discretion whether, or to what extent, the facts and information of his or her personal privacy are to be made available to other bodies. This is an aspect of the right to privacy in the form of a right to information self-determination, expressly guaranteed by Article 10 (3) of the Charter. "
61. The right to respect for private life is also included in international legal documents. Pursuant to Article 8 (1) of the Convention, everyone has the right to respect for his private and family life, residence and correspondence. Article 8 (2) of the Convention then defines the limits of that right, whereby a State authority cannot intervene in its exercise except where it is legally and necessary in a democratic society for the sake of national or public security, the country's economic well-being, the prevention of unrest and crime, the protection of health or morale or the protection of the rights and freedoms of others. According to Article 17 (1) of the International Covenant on Civil and Political Rights, "[n] anyone must not be exposed to arbitrary interference in private life, family, home or correspondence, or attacks on their honour and reputation '. The Convention on the Protection of Persons with a view to the Automated Processing of Personal Data (Communication of the Ministry of Foreign Affairs No. 115 / 2001 Coll. s.) is also particularly concerned with the protection of the right to private life.
62. The concept of "private life," as presented in the ECHR case-law, has a wide scope which cannot be defined in an exhaustive manner, including the physical and moral integrity of a person (Case No 2346 / 02, paragraph 61). It may therefore combine several aspects of the individual's physical and social integrity (judgment of 7 February 2002 in Case No 53176 / 99 Mikuluć v Croatia, paragraph 53). Elements such as gender identification, name, sexual orientation and sexual life fall within the personal sphere protected by Article 8 of the Convention (see, for example, judgment of 6 February 2001 Bensaid v United Kingdom, complaint No 44599 / 98, paragraph 47; judgment of 28 January 2003 Peck v United Kingdom, complaint No 44647 / 98, paragraph 57). In addition to the name, private and family life may include other means of personal identification and family ties (cf. Mutatis mutandis judgment of 22.2.1994 Burghartz v Switzerland, complaint No 16213 / 90, paragraph 24, or judgment of 16.11.2004 Ünal Tekeli v Turkey, complaint No 29865 / 96, paragraph 42). The ethnic identity of an individual must also be considered an important element of private life.
63. The right of everyone to the protection of personal data relating to him and the right to respect for private life is enshrined in Articles 8 (1) and 7, respectively, also in the Charter of Fundamental Rights of the European Union (hereinafter referred to as "the EU Charter '), which states in this context that" [t] yto data must be processed correctly, for precise purposes and on the basis of the consent of the person concerned or on the basis of any other legitimate reason provided for by law. Everyone has the right to access and rectify the data collected from them (Article 8 (2) of the EU Charter). The exercise of rights and freedoms can only be limited by law, while respecting their substance and respecting the principle of proportionality, if necessary and in line with the objectives of general interest recognised by the European Union (hereinafter referred to as "the EU') or the need to protect the rights and freedoms of the other (Article 51 (1) of the EU Charter). Although the scope of the EU Charter in relation to Member States is linked to cases where" they apply Union law '(Article 51 (1)), its effective effect, thanks to the frequency of the case-law references to it by constitutional and general courts as an interpretative guide in the review of standards, is significantly greater than that defined in the internal rules of law (cf. ARNOLD, R. in TICHÉ, L., ARNOLD, R., GEOGRAPHY, J., KRÁL, R., DUMBROVSKÝ, T. European law. 5th edition. Praha: C. H. Beck, 2014, p. 108).
64. The analysis of the foreign arrangements for the collection and processing of DNA samples, which the Constitutional Court has had processed, shows that these arrangements are very diverse and differ in particular in the circles of the persons concerned, the length of the retention of their personal data and the scope of the procedural guarantees. In some countries the legislation is comparable to that in the Czech Republic (e.g. the Republic of Poland, the Slovak Republic), some show slight differences (e.g. the Republic of Austria) and some are stricter (e.g. the Federal Republic of Germany, the French Republic). It follows from the above that a single line cannot be traced in the rules on the admissibility and conditions for taking biological samples at national levels, which could provide some guidance for the Constitutional Court to decide on the submitted proposal.
Liabilities under international law
65. The review of the constitutionality of legal standards must be carried out within the meaning of Article 1 (2). The Constitution also provides for the international obligations of the State applying its application priority under Article 10 of the Constitution or on the basis of the case law of the EU Court referred to in Article 10a (1) of the Constitution.
66. Council Decision 2008 / 615 / JHA of 23 June 2008 on the strengthening of cross-border cooperation, in particular in the fight against terrorism and cross-border crime, incorporating into European Union law the "Prüm Treaty (2005)" originally seven Member States, together with EU Implementing Decision 2008 / 616 / JHA, is based on the principle of network interconnection of national DNA analysis sets, direct cross-border access to them, and common safeguards for the protection of the right to privacy and personal data under the General Data Protection Regulation (No 2016 / 679, GDPR) and Directive (EU) 2016 / 680 of the European Parliament and Council on the protection of individuals with regard to the processing of personal data by competent authorities for the prevention, investigation, detection or prosecution or prosecution of criminal offences, the free movement of such data and the abolition of Framework Decision 2008 / 977 / JHA. The transmission of data is strictly linked to the purpose of their processing and the obligation to delete them immediately after the comparison of the data (Article 26) or after the maximum retention period laid down by the law of the transmitting Member State (Article 28). The data subject (s) "shall be provided without undue cost, in a generally understandable form and without undue delay 'with information on the data processed on his or her person and their origin, the recipient, the purpose of the processing and, if required by national law, the legal basis for processing; the entity has the right to rectify incorrect and erasure incorrect data and, in the event of a breach of its rights, the right to lodge an effective complaint with an independent court within the meaning of Article 6 (1) of the Convention or to request compensation or other form of compensation. The details of the exercise of those rights and the grounds for restricting access rights are governed by the law of the Member State in which the data subject exercises his or her rights (Article 31). The adjustment of feedback on the state of implementation and application of this Decision in the Member States is then very thorough (Article 36). The failure of the explicit authorisation of the police to take biological samples, for example as a result of the limitation or withdrawal of the legal authority, would result in a weakening of the guarantee of compliance with the obligation of an EU Member State resulting from this (directly applicable) decision of the Council of the EU - the possession in the DNA database of personal data of perpetrators of intentional offences for the purposes of identifying them in cross-border matters, as only a general regulation such as that of § 114 of the Code of Criminal Procedure would remain in force in the Czech Republic. This would worsen the position of the Member State in the mechanism for cooperation in combating cross-border crime based on reciprocity.
67. The EU Council's decisions follow the principles and recommendations of the European Network of Forensic Science Institutions (ENFSI) for the management of DNA Database Management (ENFSI), developed with the support of the European Commission. This document is based on the assumption that EU Member States, bound by the above-mentioned EU Council Decision, use the CODIS information system created by the US FBI and internationally accepted on a broad scale (over 40 countries) to process and compare DNA profiles. In the Czech Republic, this system with over 200,000 items (in addition to FODAGEN systems - personal data and unique number of the sampling system, INFO DNA - accompanying information on DNA sampling and analysis and SDODA) is a separate part of the National DNA database managed by the Criminal Institute Prague. This database lacks an explicit legal basis and its fulfillment, operation and use is governed only by a binding order from the police president.
68. In accordance with Article 9 of the General Data Protection Regulation, processing of genetic data for the purpose of the unique identification of a natural person is prohibited unless it is necessary by law of a significant public interest, is proportionate to the objective pursued, respects the substance of the right to data protection and provides appropriate and specific guarantees of its protection.
69. The Agreement between the Government of the Czech Republic and the Government of the United States of America on the strengthening of cooperation in preventing and combating serious crime (No 65 / 2010 Coll. s..), which means crimes with a maximum prison sentence of at least 1 year, the purpose of which the criminal justice and processing of personal data may be determined by means of a DNA profile is to be set at the most widely (Article 1), refers to the Prüm Treaty. Subject to the admissibility under the legal order of each of the two parties and the application of the principle of reciprocity, the possibility of accessing the reference data in DNA analysis files with the right to carry out automated searches by comparing DNA profiles in individual cases (Article 8). It shall ensure the protection of privacy by explicitly making such processing subject to the requirements of proportionality to a specific purpose and necessity in terms of the retention period of personal data (Article 13). The conditions for limiting the processing of personal data obtained from the other Contracting Party and, where appropriate, the provision of such data to a third party, including the immediate removal thereof, are very strict, unless further processing is necessary (Article 15). The security, integrity and confidentiality of data in automated searching is linked to the proper use of modern technologies and the application of encryption and authorisation procedures (Article 18). The transparency of the provision of information to the data subjects on appeals etc. under national rules is also widely understood (Article 19).
70. It can be summarised that, however, the lack of a comprehensive legal regulation on the protection of the rights of persons when dealing with genetic samples and profiles in connection with the implementation of a forensic DNA analysis, as is the case with the Czech Republic (the proposal for a DNA law in 2015 by Parliament) makes it difficult to fulfil the obligations arising from international specifically Union law (see Article 1 (2), in conjunction with Article 10a (1) of the Constitution) and to weaken cross-border cooperation in this area, simply to abolish the basis for such cooperation - the powers of the police to collect biological samples - would likely destroy the constitutional guarantee of public interest in preventing, seeking, detecting and prosecuting crime (Article 80 of the Constitution) and ensuring the security of the State in international context.
The introduction of general considerations on the matter now under consideration
71. The Constitutional Court has examined the proposal in the light of general considerations and international contexts and concluded that the proposal, concerning the annulment of Section 65 (1) of the Police Act, is not justified.
Assessment of the nature of the biological material summons
72. In the City Court of Justice of the case under examination, the plaintiff (person against whom a criminal prosecution has been initiated for the commission of a criminal offence) refused to appear at the request of the police for the purchase of biological material, which is prevented by the court by means of an intervention administrative action against the Ministry of the Interior.
73. The general criminal law framework for the collection of biological material to obtain a DNA sample in order to identify a person with the possibility of being used in criminal proceedings (cf. § 89 (2) of the Criminal Code) is defined in § 114 (2) and (4) of the Criminal Code. It is enshrined here as a non-invasive act, which can also be enforced by adequate overcoming of resistance by the use of legal coercive means, and its execution, which does not require the active contribution of the person concerned, cannot be regarded as a violation of the imo tenetur principle with ipsum accusare ("no one is obliged to blame himself").
74. However, in the present case, it was not a criminal procedure, but a procedure under the Police Act. This is not about procuring evidence to clarify the criminal case in which the person referred to is charged. Consequently, the identification acts as such do not lead to the purpose of the criminal proceedings brought against the person summoned. In carrying out the identification operations provided for in Section 65 of the Police Act, the police authorities shall carry out the public administration tasks of creating and maintaining a database of data available in the search for and combating crime. In the present case, the police authority is not acting as a criminal authority, but as an administrative body (for example, the abovementioned order of the Constitutional Court, sp. zn. I. ÚS 2661 / 13 or the judgment of the Supreme Administrative Court of 10.11.2015 No 9 As 168 / 2015-43 and of 13.12.2017 No 1 As 13 / 2017- 93).
75. Detailed arrangements for the conduct of identification operations, including the collection of biological samples for the purposes of the future identification of a person whose basis is Section 65 of the Police Act, are contained in the order of the Police President (see instruction of Police President No 275 / 2016, preceded by the order of Police President No 250 / 2014). Directive No 275 / 2016 of the European Parliament and of the Council of 23 April 2016 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 119, 4.5.2016, p. The actual problem of criminalistic and technical procedure in carrying out identification operations is contained in the binding guideline of Police President No. 100 / 2001 on criminalistic and technical activities of Police of the Czech Republic.
76. In the present context, it cannot be overlooked that although the internal instructions of the police president (in particular instruction No 275 / 2016) concerning the collection, loading, processing, storage and disposal of biological material and the data obtained from it (DNA profile) are quite detailed, their lack of public availability. In addition, the case law of the Supreme Administrative Court (cf. Judgment of 19 April 2018, sp. zn. 3 As 335 / 2017) states that the conduct of identification operations on the basis of the order of Police President No 275 / 2016 is deemed to be an unlawful interference without further action, as it goes beyond (beyond) the powers conferred by law on the police as administrative authority (cf. § 2 (2) of the Administrative Regulation and Article 2 (2) of the Charter). In the view of the Supreme Administrative Court, the order in question should be brought into line with the provisions of the Police Act in such a way that it does not infringe the rights of the persons concerned. However, the order in question is not subject to review by the Constitutional Court in the present case.
77. At the same time, the call for identification acts under Section 65 of the Police Act can undoubtedly be regarded as a binding and directly enforceable act, since, in the event of failure to respect it, the administrative authority may recover the person concerned's personal participation by, for example, imposing fines or even demonstrating it. The substance of this act is not simply a communication on the state of certain cases or a procedure. Its content is so associated with the negative consequences which may affect the person concerned under certain legally foreseeable conditions that this situation can already be considered as a shortening of the applicant's subjective rights. Thus, the decision to carry out identification operations cannot be regarded as a sign of free will but as an expression of coercion (cf. Judgment of the Supreme Administrative Court of 22.5.2008 No 2 Aps 3 / 2007-91).
78. On the other hand, however, it should be assumed that the person concerned has the possibility of preventing any illegal recall (s) of biological samples for future identification. As is apparent from the above, the police authority requesting the collection is acting as an administrative authority, not as a criminal authority, and therefore its procedure can be reviewed in the administrative judiciary (cf. the decisions referred to above by the Constitutional Court and the Supreme Administrative Court). As is apparent from the case law of the Supreme Administrative Court, the appeal (summons) must contain not only all the legal requirements (who, when, where, in what case and for what reason it should appear and what legal consequences are there if it does not appear) but include a justification for the need to carry out identification operations in view of the proportionality of potential intervention (see judgment of the Supreme Administrative Court, sp. v. 3 As 335 / 2017). The actual procedure of the police calling the person concerned for biological sampling under Section 59 of the Administrative Regulation cannot be considered illegal if the call contains all the legal requirements and if the need for biological sampling is duly and adequately justified. It is then the duty of the police to proceed individually in each individual matter and to weigh all the circumstances of the crime under investigation. From the point of view of the Constitutional Court, the outline of the possibility of judicial review in the light of the above definition of existing caselaw constitutes a sufficient guarantee of the maintenance of the rights of persons who are summoned to take biological samples for identification purposes.
Assessment of the legislation in respect of its compliance with the right to the integrity of a person under Article 7 (1) of the Charter
79. The Constitutional Court also addressed the question whether the actual collection of biological samples in order to obtain information on genetic equipment is in accordance with the right to the integrity of a person under Article 7 (1) of the Charter. The inviolability of a person must be understood as guaranteeing the right to maintain physical and mental integrity, i.e. expressing the fundamental inadmissibility of any involuntary interference in the human body and consciousness. In some cases, this guarantee can only be broken by law. In order for the protection mechanism to be triggered under this provision at all, it must be an intervention in physical or mental integrity which achieves a certain minimum intensity and severity, whether in the perception of intervention (pain, nausea), in an objective breach, or a change in the body compartment (removal of part of the tissue) or in the change of consciousness. Article 7 (1) While the Charter also includes the protection of privacy, it applies only to the protection of physical and mental integrity, where respect for privacy is closely linked to the intervention of physical and mental integrity. The protection of privacy in the wider sense (i.e. issues relating to personal data including processing and storage) is contained in Article 10 (3) of the Charter (see below).
80. The prosecution of, or the prevention, detection and investigation of, criminal offences, as well as the fair punishment of their offenders, are of a constitutionally and disproportionately public interest or purpose (Article 80 of the Constitution), which in general justifies interference with that right [cf. ÚS 789 / 06 (N 150 / 46 SbNU 489), paragraphs 15 to 22; the finding of 29.2.2008 sp. zn. I. ÚS 3038 / 07 (N 46 / 48 SbNU 549)]. Its purpose is to penalise the most serious violations of fundamental rights and freedoms or cases of damage by the State to the constitutional order or legal protected public goods, thereby providing them with legal protection in the wider sense. The public interest in question will also stand up as a purpose addressed by Article 8 (2) of the Convention, which allows, if necessary in a democratic society, to intervene in the right to respect for private life in order to protect the rights and freedoms of others, national and public security, the country's economic well-being, the prevention of unrest and crime or the protection of health and morale.
81. The Opinion of the plenary of the Constitutional Court, sp. zn. Pl. ÚS- st. 30 / 10 and subsequently issued in sp. zn. II. ÚS 2369 / 08, in view of the negligible health and mental damage and passivity of the accused investigative acts consisting in removing the odour, taking a sample of the hair and buccal smear from the scope of the prohibition of self-incrimination within the meaning of Article 40 (4) of the Charter, must be interpreted as not affecting the integrity of the person guaranteed in Article 7 (1) of the Charter in these cases [by reference of 20 August 2004 sp. ÚS 459 / 03 (N 117 / 34 SbNU 223)]. However, a subsequent conflict with other fundamental rights, such as the right to information self-determination under Article 10 (3) of the Charter, is not excluded as regards the retention and use of information thus obtained (see also the ECHR Van der Velden judgments against the Netherlands, S. and Marper against the United Kingdom or W. against the Netherlands, see below). Such interventions must also be supported by the law, which is already the principle of the enumerativity of state pretension (Article 2 (3) of the Constitution).
82. If Article 7 (1) of the Charter refers to the fact that the inviolability of a person (and his privacy) "may be limited only in cases provided for by law," this is the case where intervention in physical and mental integrity is also permissible against the will of a person, or without his free and informed consent.
83. The Charter thus leaves legislators free to determine cases where physical and mental integrity is not inviolable, but its discretion is not unlimited. Article 7 (1) While the Charter does not set out legitimate objectives for possible restrictions, this cannot be interpreted as reducing the level of investigation of the substance and the sense of inviolability of a person when applying such restrictions under Article 4 (4) of the Charter. The absence of a list of legitimate objectives to limit the integrity of a person can only lead to a single conclusion, namely that these rights are only immaterial, i.e. measures taken to protect the fundamental rights of third parties, or to protect those public goods which predominate constitutional order. In the view of the Constitutional Court, the actual collection of biological samples carried out in a non-invasive and non-intimate form (e.g. taking a hair sample or carrying out a buccal swab), however enforceable, whether indirectly by means of order fines or by physical force, nevertheless stands in the proportionality test, as it does not interfere with the physical integrity and does not threaten the health or dignity of the persons concerned, on the other hand it is justified by the interest in protecting the company from criminal offences and is therefore acceptable from the point of view of maintaining the right to the integrity of a person under Article 7 (1) of the Charter. The removal of biological samples, when carried out in accordance with a procedure which does not in principle require any active conduct of the accused but only his or her patience, also does not reach the minimum threshold of gravity necessary for the infringement of Article 3 of the Convention, and although they constitute interference with the right of a person to private life, are generally justified under Article 8 (2) of the Convention as necessary for preventing crime.
84. Although the principle of non-mo tenetur can be regarded as one of the pillars of the criminal process in a democratic rule of law, this principle is not free and does not provide absolute protection to the accused, in particular when it does not prohibit the criminal authorities from forcing the accused to pursue passive prosecution. The general interest of the company in the effective conduct of criminal justice must also be considered when assessing the degree of constitutional protection provided for in this principle. An excessive interpretation of the nemo tenetur principle could lead to paralyzing effective crime-fighting. The protection of society against crime justifies the requirement that the accused suffer some reasonable restrictions and that he be adequately coerced in such an act of proof. Such coercion is not a violation of constitutional rights and freedoms.
85. However, if it should be more invasive interventions in body integrity (e.g. blood or human tissues collection), the guarantees resulting from the right to inviolability of the person must be applied here, as the opinion referred to above also points (b) and (c) of Article 30 / 10 in point 17, which refers to the argument of a different opinion on the finding of point III. ÚS 655 / 06 of 23.5.2007 (N 89 / 45 SbNU 303).
86. The Constitutional Court concludes that, in accordance with the procedure laid down in Section 65 of the Police Act, the police use a legally based authorisation to fulfil their obligations in preventing, detecting, investigating and prosecuting offenders. This is a justifiable and proportionate procedure, given the constitutionally legitimate objective of protecting rights and freedoms, protecting security and property and ensuring public order (cf. Section 2 of the Police Act).
Assessment of legislation on the right to information self-determination pursuant to Article 10 (2) and (3) of the Charter
87. Although the privacy guarantee is also included in Article 7 (1) of the Charter, the primary guarantee of its protection is Article 10 of the Charter. Article 10 (2) and in particular paragraph 3 of the Charter contain the right to take decisions on personal integrity and the so-called right to information self-determination. In view of its argument in the proposal, the right to information self-determination, which protects individuals from the unauthorised collection, publication or other misuse of data on its person, as defined in recitals 46 and 47 of the Decision of 14.5.2019 sp. zn. However, it may be assumed that the identification acts in question distort the personal (private) sphere of the person concerned, at least to the extent of the right to information self-determination, which guarantees the right of the individual to decide at his own discretion whether, or to what extent, the facts and information of his personal privacy are to be made available to other entities (see, for example, the finding of the Constitutional Court sp. v. ÚS 24 / 10), and in this case, the Constitutional Court does not see the grounds for which it should be annulled in the contested section § 65 (1) of the Police Act.
88. First of all, it should be noted that Article 65 (1) of the Police Act allowing police to take biological samples, when carried out in the manner and to the extent provided for by that provision, affects the rights of information self-determination, as is perceived and understood (i.e. primarily as protection against unauthorised collection, disclosure or other abuse of individual data) only marginally. When all the conditions for collecting (in the case currently under consideration) biological samples are met, as laid down in the Police Act, or contained in the instructions of the Police President, as well as in other legislation (in particular the Data Protection Act), it cannot be considered that there is a breach of the right to information self-determination.
89. Moreover, Article 65 (5) of the Police Act is much more associated with the right to information self-determination, which already works with the data obtained and solves the conditions (together with the instructions of the Police President) of their retention and disposal. However, this provision is excluded from the review by the Constitutional Court in the absence of the applicant's active legitimacy (see above).
90. The Constitutional Court further points out that the police, as the executor of the public administration, are obliged to respect the principles of the rule of law and the rule of law only in the cases and limits laid down by the law, in the manner laid down by the law (see Articles 1 (1) and 2 (3) of the Constitution and Article 2 (2) of the Charter). However, if the police were to exceed their powers [e.g. if they wanted to take biological samples, but such as to take dactyloscopic prints or collect other identification data from persons other than those listed in § 65 (1) (a) to (d) of the Police Act, or in a manner that is not permitted], the person concerned shall always be able to defend himself against such abuse of power. There is a procedure similar to that in the present case, such as the submission of an administrative intervention action.
91. The task of the police is to detect crime, prosecute crimes and protect society from harmful activities. In order to carry out these tasks properly, they must have the appropriate tools, which are undoubtedly the permissions contained in Section 65 of the Police Act carried out by internal police instructions. If the contested provisions were lifted, internal guidelines would also lose their legal support and the police would lose essential criminal tools to clarify crimes and detect their perpetrators. If the identification acts (and not only the collection of biological samples to determine the DNA profile) are carried out under legal conditions, there is no unconstitutional interference in the Constitutional Court's view.
Assessment of sufficient regulatory accuracy
92. However, the substance of the argument contained in the proposal is not so much that, by taking biological samples, there should be an intervention in physical integrity (that is to say, a breach of Article 7 (1) of the Charter, even if this constitutional right is mentioned in the proposal), or a breach of the right to privacy (Article 10 (2) and (3) of the Charter), but it is much more based on the fact that the provision allowing the collection of biological samples is incomplete or is based on a flat-rate hypothesis, as it insufficiently differentiates the applicability of this authorisation by the police according to the seriousness of the various offences. Therefore, the primary problem, as defined by the appellant, is not the power of the police to take biological samples to obtain the DNA profile as such, but rather the extent of its personal competence as set out in Section 65 (1) (a) of the Police Act, where the concept of "intentional crimes' is not corrected by any restrictions which would act as a guideline for the use of that power, proportionate to a particular case. Consequently, such a wide-ranging authorisation can be easily used, and there is no control tool of administrative law that could be regulated by the conduct of the police. The appellant thus essentially requires the Constitutional Court to assess the constitutionality of Paragraph 65 (1) (a) of the Police Act, on the grounds of lack of differentiation or incompleteness in relation to the persons to whom this provision may be applied, even if it does not require the complete withdrawal of the draft petition itself, but limits it to the words" and to take biological samples to obtain information on genetic equipment '. The argument contained in the proposal is thus essentially passed on with the appellant's own petition to repeal the legislation. The Constitutional Court recalls that, in its established case-law, it underlines the link between the petit of the application and not its reasoning, i.e. the arguments put forward by the appellant in support of his request [see already the finding of 24.5.1994 sp. zn. It therefore considers the proposal from other aspects of the protection of constitutionality than those set out in the statement of reasons for the proposal, but it cannot decide to repeal other provisions in the petition of the proposal not mentioned. An exception is a situation where, as a result of the annulment of a provision of law, the provision of another provision, contained in the previous narrowly linked, would lose reasonable meaning, that is to say, the validity of its normative existence would be no longer justified, thereby giving reason for the annulment of that provision, without the ultra-petitum procedure. The validity of such a provision ceases to exist on the basis of the principle of cessante ratione legis cessat et lex ipse (the law itself ceases to apply by the end of the purpose of the law); Therefore, the derogation made by the Constitutional Court is only of a registered, technical nature [cf.
93. However, this is not an exception in the present case. Paragraph 65 (1) (a) [but also points (b) to (d)] of the Police Act constitutes a hypothesis for the available part of the legal standard which the appellant requires to abolish. However, in the light of the above considerations, according to which even the petition of the proposal of an uncontested part of the legislation may be abolished, the design of the legal standard is not dependent on its hypothesis or the legal standard's hypothesis alone without having to be disturbed. For this reason, the Constitutional Court was unable to proceed with the annulment of § 65 (1) (a) [to (d)] of the Police Act. However, in view of the necessary coherence between the two parts of the rule of law, the Constitutional Court will also briefly comment on this in its proposal for a predominant argument by the appellant regarding the indeterminate or incompleteness in question.
94. However, the Constitutional Court stresses that the legislation is sufficiently precise and complete in its general nature to meet the essential requirements of legal certainty and predictability [cf., for example, the findings of 13.5.2014 sp. zn. II. ÚS 3764 / 12 (N 91 / 73 SbNU 517), of 3.6.2009 sp. zn. I. ÚS 420 / 09 (N 131 / 53 SbNU 647), of 15.2.2007 sp. zn. Pl. ÚS 77 / 06 (N 30 / 44 SbNU 349; 37 / 2007 Sb.), of 20.9.2006 sp. As a general rule, the incompleteness (uncertainty) of a provision of a law must be regarded as contradictory to the requirement of legal certainty and, therefore, the rule of law (Article 1 of the Constitution) in principle only if the intensity of that incompleteness (uncertainty) precludes the possibility of determining the normative content of that provision even by using the usual interpretative procedures.
95. The Constitutional Court in the Sp. zn. Pl. ÚS 24 / 10 (paragraph 37) formulated the essential requirements for the completeness (certainty) of the legislation: "Such legislation must be precise and clear in its wording and sufficiently predictable to provide the potentially affected individuals with sufficient information on the circumstances and conditions under which the public authority is entitled to intervene in their privacy, so that they may, where appropriate, adjust their behaviour so as not to conflict with a restrictive standard. The powers granted to the competent authorities, the manner and rules for their implementation must also be strictly defined so that individuals are protected against arbitrary interference. 'On the need for completeness (certainty) and predictability of the regulation, the ECHR, for example, argued against the United Kingdom (complaint No 8691 / 79, recital 67) or in the judgment of 4.5.2000 Rotar against Romania (complaint No 28341 / 95, paragraphs 55 to 57).
96. As regards the above, the Constitutional Court notes that the legislation contained in Section 65 (1) (a) of the Police Act may be broad in its staffing capacity when it may be applied, inter alia, to all suspects or accused persons of committing any intentional crime or to all persons who are guilty of such a crime in the execution of a prison sentence, but it cannot be concluded that it is indefinite, unclear or too abstract. It is clear from the related legislation (criminal code and criminal order) who is a person accused or suspected, who is a person in the execution of the sentence and what is an intentional crime. The appellant's view that the indeterminity, or in a given concept rather excessive generality or incompleteness, constitutes the main lack of the contested legislation which causes its unconstitutionality, from the point of view of the Constitutional Court, does not stand.
97. The wording of Section 65 of the Police Act also makes it clear the legal limits and criteria of use set by the legislator. The principal criterion for the hypothesis contained in Section 65 (1) (a) of the Police Act is the subjective aspect of the offence, which speaks of the perpetrator's internal relationship with the offence. Intentional crime contains both a component of knowledge and a component of freedom, aimed at implementing certain facts establishing a crime. The perpetrator of an intentional crime wants to commit a crime, or he is well aware of it, so he knowingly breaks the law. If the legislator clearly considered it important for the police to be able to obtain identification data for all intentional offences, the Constitutional Court has no reservations against such a concept (albeit relatively broad). Intervention into fundamental rights in the public interest, consisting of the obligation to submit to the collection of biological material or the identification of other identifiers, must be considered justified.
98. Although it can certainly be accepted, on the one hand, that this is an intervention in the rights of persons to whom biological samples are taken, on the other hand, it is not possible to ignore the rights of others. The rights of one person (suspected, prosecuted or convicted offenders of intentional crimes) end where the rights of another person arise, which are protected, inter alia, through the conduct of police. In order for the police to be able to fulfil their duties in preventing, detecting and investigating crime and prosecuting criminal offenders, they must use a legal authorisation to do so. If the appellant points out that the law of police activity in the Police Act is not perfect, as it does not contain sufficient control guarantees to protect against insolence, the Constitutional Court did not find that this legislation did not comply with the minimum requirements for legal basis for interference with the right to the protection of private life.
99. If the appellant has argued by judgment of the ESLP S. and Marper against the United Kingdom, it should be noted that the ESLP was primarily concerned with the question of whether (until subsequently) the retention of fingerprints and biological samples and DNA profiles of persons suspected of committing a particular crime but not being convicted was justified under Article 8 (2) of the Convention. To the initial collection of biological samples, the ESLP merely recalled that it was intended to establish a link between a specific person and a single criminal offence. On the subject of the present case, the judgment of the ECHR S. and Marper against the United Kingdom concerns essentially only the preservation of biological samples and of DNA profiles obtained from them, which are covered by Section 65 (5) of the Police Act, but which was not subject to constitutional review.
100. Nor is the appellant's argument relevant to the judgment in the Aycaguer case against France. In this case, the complainant refused to submit to the collection of biological material for which he was sentenced to a financial penalty of €500. The removal of biological material was requested after being sentenced to a suspended sentence of 2 months for the intentional use of violence against an official person using or threatening to use a weapon (in the case of an umbrella). The ECHR found an infringement of Article 8 of the Convention as biometric data of a complainant who was convicted of a minor offence were retained on the basis of a provision which did not distinguish between the nature and / or severity of the offence committed and did not have the opportunity to request the deletion of the data. In this case, too, storage and its duration were primarily addressed, which goes once again beyond the scope of the review by the Constitutional Court in the present case.
Conclusion
101. While efforts to use genetic identification based on biological sampling can be understood, in particular, in criminal or police practice, this issue must be treated with caution and with the utmost respect for the constitutionally guaranteed fundamental rights of the individual. At the same time, the Constitutional Court does not concede that there can be no abuse or abuse in individual cases by the police. From this point of view, the rather brief legislation contained in the Police Act, which is merely supplemented by (non-public) internal instructions from the police president, does not seem ideal. However, the Constitutional Court does not in any way intend to interfere in the area of reserved legislative power.
102. If the appellant requested the annulment of Paragraph 65 (1) of the Police Act in the part which allows the police to take biological samples to obtain information on genetic equipment, but effectively opposed the scope of application of Section 65 (1) (a) of the Police Act, it cannot be concluded that it did not choose the most appropriate case (i.e. the so-called "chassis') to enable the Constitutional Court to deal with its proposal in a relevant way. As already stated above, in the physical collection of biological samples itself, the Constitutional Court does not see a breach of the fundamental right to the integrity of a person under Article 7 (1) of the Charter or an intervention into the right of privacy under Article 10 (2) and (3) of the Charter. Similarly, in the incompleteness (uncertainty) or inadequacy or excessive generality of legislation, the Constitutional Court does not see the unconstitutionality.
103. On the basis of the above, the Constitutional Court concluded that the contested Section 65 (1) of the Police Act in the words "and to take biological samples to obtain information on genetic equipment 'did not contradict the constitutional order, or Article 7 (1) of the Charter and Article 10 (2) and (3) of the Charter, and therefore, pursuant to Article 70 (2) of the Law on the Constitutional Court, it decided to reject the application for annulment of the contested provision in that section (operative part I). In the rest, if it was directed against Paragraph 65 (5) of the Police Act, it rejected this proposal under Paragraph 43 (1) (c) of the Constitutional Court Act as being filed by someone manifestly unauthorized (operative part II).
Obiter dictum
104. The main problem with the current state of the law is the lack of familiarity (extent) of the restrictions on fundamental rights that are taken by taking biological DNA samples. According to the ECHR case-law, intervention in the right to privacy must respect the criterion of necessity with sufficient safeguards for individuals against the risk of abuse and insolence, the parameters of which must be laid down by law. Where the management of genetic information in the context of criminal needs is entrusted only to the internal order of the police, it is not available to the public (cf. ESLP Rotar v Romania) and does not allow individuals to adapt their behaviour to the requirements of this regulation (cf. ECHR judgment of 25.3.1983 Silver and Others against the United Kingdom, complaint No 5947 / 72, 6205 / 73, 7052 / 75, 7061 / 75, 7107 / 75, 7113 / 75 and 7136 / 75), i.e. it acted in such a way as not to commit an intentional crime and thus, in its investigation, where appropriate, to be subjected to a DNA sample-related intervention. This condition also does not correspond to Recommendation R (92) 1 The Committee of Ministers to the Member States of the Council of Europe, with the precautionary principle to be followed by the rules on DNA profiles databases. If clear rules for the disposal of samples are not laid down, the police may selectively (not) keep the samples on their own account and may not, contrary to Act No. 106 / 1999 Coll., on free access to information, as amended, admit whether the sample is kept, which may have a negative impact on the evidence and rights of the defence in criminal proceedings, e.g. in the defence against false forensic identification.
105. In this context, the Constitutional Court is also aware that since 2010, the substantive intention of the Law on the Protection of the Rights of Persons in the Management of Genetic Samples and Profiles in the context of carrying out a forensic DNA analysis that could resolve the above-mentioned nature and fragmentation of the modification and would ensure, in order to compare DNA profiles, access to national contact points of other States under international agreements. International commitments have not yet been fulfilled in this respect.
106. The Constitutional Court also took into account the impact that the repeal of the contested provisions might have in the absence of a special law on the National DNA database as a special regulation in the field of the protection of personal data in terms of compliance with obligations arising for the Czech Republic under international law in the field of combating cross-border crime. Although the Union and / or international contractual arrangements for such cooperation have a framework, not harmonisation or unification nature, and the definitive establishment of rules for the taking of samples, their storage, processing or disposal is a matter for the national legislator, the requirement of mutual access to the databases of the Contracting Parties in the automated comparison of DNA profiles, effective and rapid exchange and sharing of information for the purpose of conducting effective investigations of crime or of carrying out operational search activities does not leave the national specificity of the Member State with regard to parametric comparability (compatibility). Any interference with the applicable legislation would therefore also affect the international obligations of the Czech Republic and their reciprocal fulfilment and would have to be justified from this point of view.
President of the Constitutional Court:
v. JUDr. Fenyk v. r.
Vice-President
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the judges Josef Fiala, Jan Filip, Vladimir Sládeček, Radovan Suchanek, Pavel Šámal and Vojtěch Šiměk to the decision.
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Regulation Information
| Citation | The Constitutional Court found No. 119 / 2022 Coll., on the application for annulment of Section 65 (1) and Section 5 of Act No. 273 / 2008 Coll., on the Police of the Czech Republic, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 17.05.2022 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Public Contracts 1
Střelnice Čelákovice - nájem 2025
Krajské ředitelství policie Středočeského kraje
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08.01.2025
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