Communication from the Constitutional Court No 439 / 2010 Coll.
Communication from the Constitutional Court on the adoption of the Opinion of the plenary of the Constitutional Court of 30 November 2010 (sp. zn. Pl. ÚS-st. 30 / 10) on the acts of Article 114 of Law No 141 / 1961 Coll., on criminal proceedings of the judicial (penal order), as amended, in order to remove the scent, remove the hair sample and the buccal swab
Valid
Communication from the Constitutional Court
Text versions:
31.12.2010
439
COMMUNICATION
The Constitutional Court
On 30 November 2010 Stanislav Balík (Judge of the Rapporteur), František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krůk, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodím, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická, pursuant to § 23 of Act No. 182 / 1993 Coll., on the Constitutional Court of the Constitutional Court of First Instance of 22 February 2006, and on the subject matter of the Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Court of First Instance of 23 May 2007,
the following opinion:
Acts pursuant to § 114 of Act No. 141 / 1961 Coll., on criminal proceedings of the Court (Criminal Code), as amended, consisting of removing odour, taking a sample of hair and buccal swab, aimed at obtaining objectively existing evidence for a forensic examination and which do not require the active conduct of the accused or the suspect, but only the patience of their execution, cannot be seen as acts by which the accused or suspect would be forced to constitutionally inadmissible self-blame. Therefore, legal enforcement measures can be used to ensure the co-operation of the defendant or suspect in procuring such evidence.
Reasons
1. On 22 September 2008, the Constitutional Court received a constitutional complaint from the complainant R. G. against the Resolution of the Police of the Czech Republic, the District Directorate of Prague III, the Criminal Police and Investigation Services, the 5th Department of General Crime, of 27 March 2008, ČTS: ORIII-2748 / SKPV-2005 and the Resolution of the District Court for Prague 8 of 4 July 2008 sp. zn. NT 2058 / 2008. According to the work schedule, this complaint was attacked by the Second Chamber of the Constitutional Court, the Judge-Rapporteur is Stanislav Balík.
2. The complainant's complaint against the above mentioned decision of the police authority and the District Court for Prague 8, on the basis of which he was fined in accordance with § 66 of Act No. 141 / 1961 Coll., on criminal proceedings of the court (criminal order), as amended, in order to comply with the request of the police authority within the meaning of § 114 of the Code of Criminal Procedure and refused the collection of odour comparative evidence.
3. In the context of its decision-making practice, the Second Chamber of the Constitutional Court has reached a legal opinion which deviates from that set out in the findings in the sp. zn. I. ÚS 671 / 05 of 22 February 2006 (N 41 / 40 SbNU 341 *) and III. ÚS 655 / 06 of 23 May 2007 (N 89 / 45 SbNU 303).
4. Findings sp. zn. I. ÚS 671 / 05 The Constitutional Court held that the complainant's objection was correct in that it could not, by means of a fine, be forced to obtain, or by its cooperation, evidence that could be used against him in criminal proceedings; By that procedure, he would be forced to act, which must already be regarded as self-accusing. The Constitutional Court, referring to the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), namely Article 37 (1), Article 40 (2), (3) and (4) of the Charter, further to Article 6 (1), (2) and (3) (c) of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as" the Convention'), and Article 14 (2) and (3) (g) of the International Covenant on Civil and Political Rights (hereinafter referred to as "Article 6 (1), (2) and (c) of the Convention on Human Rights and Fundamental Freedoms' (hereinafter referred to as" the Convention '), has concluded that the prohibition of forcing of another person's own testimony may be understood to provide against himself or other evidence. The imposition of an order fine under Paragraph 66 (1) of the Code of Criminal Procedure in a situation where the defendant refused to cooperate in the provision of evidence (to suffer the removal of a comparative scent) which may have convicted him, the Constitutional Court identified as a constitutionally inadmissible way of enforcing the involvement of the accused. In his view, such an interpretation of the Code of Criminal Procedure did not take into account the above-mentioned coutels contained in the Charter and international treaties.
5. In the case brought under point III of the judgment 655 / 06, the Constitutional Court dealt with a similar issue to that currently concerned by the present constitutional complaint and, as in the case under point III of the judgment in Case 61 / 05, based on the allegation that the basic right of the complainant under Article 37 (1), Article 40 (2), (3) and (4) of the Charter and Article 6 (1), (2) and (3) (c) of the Convention were infringed by imposing an order fine for failure to comply with the obligations laid down in Article 114 (2) and (3) of the Code, respectively.
6. II. The Chamber of the Constitutional Court does not identify with the views expressed in the above mentioned findings, which is the result of the following considerations, which were previously outlined in the different opinion of Judge Jan Musil attached to the finding in sp. zn. III. ÚS 655 / 06 of 23 May 2007.
7. The constitutional guarantee of the right not to be coerced into self-prosecution, namely to produce evidence against itself under coercion, is provided for in Article 37 (1) of the Charter, which provides for the right of everyone to refuse to give notice if it would give him the risk of criminal prosecution to himself or to a close person, and in particular Article 40 (4) of the Charter, which confers the right to refuse the statement to the defendant, the defendant must not be deprived of that right in any way.
8. "This rule, allowing the defendant not to testify to his own testimony, was introduced into the Czech constitutional order, like the constitutional regulations of many advanced democratic states, following the model of the Fifth Amendment of the American Constitution of 1791 and is considered part of the Bill of Rights. The literal text of this provision (" no person shall... be compared in any criminal case to be a witness against him "-" no one may be forced to act as a witness against each other ") was originally interpreted in a narrow sense in such a way that the prohibition of coercion relates only to questioning the accused (suspect) or other verbal communication with the accused. It was only in the further development of the case law in the US and European countries that the interpretation of this provision was extended in such a way that the defendant must not be coerced not only to testify, but also to any other active action that would contribute to procuring evidence against himself. In legal instruction, this rule is expressed by the Latin formula" nemo tenetur se ipsum accusare "(" no one is obliged to blame himself ")..." (see the different opinion on the finding sp. zn. III.
9. For example, writing manuscript text (font tests) for letter identification, walking and other motor tests to monitor the coordination of movements in the so-called outpatient examination of the signs of drunkenness, carrying out tasks related to an investigation (cf. § 104c (4) of the Code of Criminal Procedure) is considered active in foreign case-law. In order to carry out the listed acts, the defendant may be called on or presented, but may not be coerced in any way, including the possibility of imposing an order-by-order fine.
10. What is particularly important is the position that the European Court of Human Rights ("the European Court ') holds on the right to remain silent and not blame itself. According to his established case-law, the right to remain silent and the right not to contribute to accusations against itself to generally accepted international principles which - although not specifically mentioned in Article 6 of the Convention - are the very essence of the concept of a fair trial within the meaning of Article 6 of the Convention. The right not to contribute to his own accusation assumes that the state authorities are trying to prove the defendant's guilt without using evidence obtained by coercion or under duress against the defendant's will. In this respect, this right is closely linked to the presumption of innocence (Article 6 (2) of the Convention). The application of the" nemo tenetur' principle is intended to protect the accused against wrongful coercion by state authorities, thereby contributing to the prevention of misconduct and to ensuring a fair trial (see European Court of Justice v United Kingdom, No 19187 / 91 of 17 December 1996, Case Heaney and McGuinness v Ireland, No 34720 / 97 of 21 December 2000, Case J.B. v Switzerland, No 31827 / 96 of 3 May 2001 and others). On the other hand, the European Court admits that the right to remain silent and the right not to blame oneself is not absolute and can be reduced by a certain degree of coercion, which, however, must not be "abussive."
11. In connection with the right not to be forced to blame itself, the European Court mentions two other individual rights, which, in a broader sense, constitute its substance, the right not to be forced to confess (the right to remain silent) and the right not to be forced to contribute to his own accusation in a way other than testimony (objective or factual evidence). At the same time, he adds that the right not to incriminate oneself is primarily linked to respect for the defendant's will to remain silent. In accordance with the normal practice of the Contracting Parties to the Convention and also in other countries, the right to remain silent in criminal proceedings does not apply (limited) to the use of those evidence obtained from the accused with the help of coercion, but which exist independently of his will, which is, inter alia, the case of documents obtained on the basis of home examination, breath tests, blood samples, urine, hair or voice and human tissue recordings for the purposes of DNA tests (see, for example, the judgment cited above in the Saunders case against the United Kingdom of 25 September 2001). In other words, the accused may be required to suffer, for example, the withdrawal of documents and to suffer the collection of those samples, including by force, despite the fact that they are incriminating him. It is not permissible only to require the defendant to make an active contribution in the possession of such evidence, which was imported in particular in relation to the issue of documents (see the judgment in Funke v France No 10828 / 84 of 25 February 1993, already cited in J. B. v Switzerland).
12. The different regime of obtaining evidence from the point of view of the right to incriminate oneself is based on the different nature of the statement and the evidence. The latter exist objectively, regardless of the will of the defendant, although they are against the will of the accused, but they are not required to cooperate actively, but only to suffer coercive acts. On the other hand, the statement, the word, does not exist objectively, regardless of the will of the defendant, and can be obtained only against the will of the defendant, if this is broken by physical or psychological coercion, i.e. only when the dignity of a man as a free being is humiliated (cf. B. Copy: European Convention on Human Rights and Criminal Law, 1st edition, Orac, Prague 2002, p. 187).
13. However, the European Court does not forget to emphasise that the obligation to submit to acts leading to the provision of objectively existing evidence, which can be met by a person in accordance with Article 6 of the Convention, constitutes an intervention in the right to respect for private and family life (interference with the physical integrity of a person), housing and correspondence in accordance with Article 8 of the Convention, which is only possible under the conditions of Article 8 (2) of the Convention, i.e. in cases where it is based on the law and to the extent necessary in a democratic society for the sake of national security, public security, economic well-being of the country, prevention of unrest and corruption, health or moral protection or protection of rights and freedoms of others.
14. In connection with the possibility of providing factual evidence, even through physical coercion, the question of establishing the limits of state coercion has arisen before the European Court. In his case-law, he found it inadmissible not only to impose an active contribution on a person, but also in individual cases where the accused (suspect) refused to cooperate in obtaining evidence, he considers that the nature and degree of coercion did not exceed the permitted framework, in other words, whether the degree of coercion used exceeds the intensity of coercion normally necessary to obtain evidence of this type. The threat and imposition of penalties for failure to provide information to law enforcement authorities is, in his view, incompatible with the right to a fair trial if they would essentially destroy the very essence of the right not to blame themselves. In assessing whether the use of coercive law enforcement authorities in order to secure evidence infringed the right to incriminate oneself, the European Court takes into account four criteria. These are the nature and intensity of the coercion, the existence of relevant procedural guarantees, the seriousness of the public interest in the examination and punishment of the crime in question and the manner and purpose of the use of the evidence thus obtained (see, for example, Jalloh v Germany, No 54810 / 00 of 11 July 2006).
15. On several occasions, the institutions of the Convention have examined the fulfilment of the conditions laid down in the case of the collection of blood or saliva against the will of the suspect for the purpose of examining the offence or the obligation to undergo a blood alcohol test (the so-called alkotest), the contradiction with Article 8 or Article 3 of the Convention, as the case may be, have not been found (see the decision in the case of Schmidt v Germany No 3252 / 02 of 5 January 2006, the decision in the case of Tirado Ortiz and Lozano Martin v Spain No 43486 / 98 of 15 June 1999). The European Court of Justice has expressly stated that, in order to obtain blood, urine, hair and human tissue samples for DNA testing, the defendant (suspect) is only required to passively endure a minor intervention in his physical integrity. The procedures applied by the competent authorities under normal circumstances do 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 the accused (suspect) to private life, they are generally justified in accordance with Article 8 (2) of the Convention as necessary for the prevention of crime (Jalloh v Germany, cited above).
16. The above-outlined approach to the right not to contribute to its own accusation in obtaining objective evidence is also held by foreign law and case law, which, when imposing an obligation on the defendant (suspect), will suffer a physical inspection of the body and other similar acts such as coercive devices and will raise both an order fine, regarded as a milder coercive, as well as direct physical coercive, which is to be applied only after the unnecessarily imposed order fine.
17. In a different opinion attached to the finding in sp. zn. III. ÚS 655 / 06, it is given as an example "§ 81a of the German Code of Criminal Procedure (StPO), governing the so-called Körperliche Untersuchung des Beschuldigten, according to which it is enforceable under certain conditions to endure not only non-invasive operations (buccal smear, fingerprinting, removal of a scent sample), but even invasive blood or other biological materials... The Federal Constitutional Court (judges BVerfGE 47, 239, 248; BVerfGE 16, 194, 202; BVerfGE 17, 108, 117; BVerfGE 27, 211) also addressed the admissibility of such acts, which, however, often underlines the need in its courts to take into account the aspect of proportionality between the severity of the offence and the intensity of the enforcement device when applying these enforcement measures. '
18. Outside Europe, the case-law of the United States Supreme Court, which among the so-called noncommunistic act of passive (inactive) nature, for which the accused may be coerced without violating the prohibition of self-crimination, ranks "violent fingerprinting, X-ray examination of the body, stripping of clothing, to make visible tattoos, tooth removal, during the recovery, the defendant is obliged to take off glasses, to put on a mask, hat, wig, artificial beard (numerous citations of Supreme Court judicates on this issue in: Kraft, O. K. -E.: Das nemo -Prinzip und die sich daraus ergebenden Rechte des Beschuldigten in der polizeilichen Vernemung. Eine rechtsvergleichende Untersuchung des americanischen und deutschen Strafprozeßrechts. Hamburg: Verlag Dr. Křič, 2002, p. 133.). The defendant may also be forced to draw blood inadvertently if he is suspected of driving a drunk car (Judicate Supreme Court in Schember v. California, 384 U.S. 757 (1966))."
19. The Constitutional Court also examined the admissibility of coercive actions under the Code of Criminal Procedure. The constitutional guarantee of the right not to be coerced into self-indicting, that is to say, to produce evidence against each other under coercion, the Constitutional Court defined, in particular, in relation to the institution of extradition and withdrawal pursuant to the provisions of Sections 78 and 79 of the Code of Criminal Procedure. In its case-law, it distinguished the relevant attributes of the institutes (where applicable, forced) of the issue and withdrawal of the case, underlining that, when (using the Institute) the issue of the case in conjunction with the imposition of an order-order fine is required for the defendant to be unduly free of active activity, on the contrary, the withdrawal of the case is clearly an act which the accused or suspect only (under the statutory conditions) tolerates or is obliged to endure. In this sense, the application of a detention order in Article 79 of the Penal Code cannot be regarded as a coercive to produce factual evidence against itself, as it is a constitutionally permissible forced provision of factual evidence, even against the will of the accused or suspect. In this context, the Constitutional Court noted that the legal possibility of obtaining evidence for the purpose of criminal proceedings against the will of the criminally accused cannot simply be seen as illegal and unconstitutional coercion of the accused to provide evidence against himself [cf. Findings sp. zn. III. ÚS 644 / 05 of 23 March 2006 (N 71 / 40 CollNU 697)].
20. Similarly, the Constitutional Court expressed its views on another of the investigative acts carried out in accordance with § 104b of the Code of Criminal Procedure. In the sp. zn. III. ÚS 528 / 06 of 11 October 2007 (N 159 / 47 SbNU 75) The Constitutional Court has stated that the recovery is an act in which the accused is forced only passively to endure the cognitive procedure, which cannot be described as coercive or self-incriminating. Therefore, the recognised person is obliged to endure the execution of the recovery and may be forced to participate by the means (demonstration, imposition of an order of order).
21. It follows from the foregoing that the rule of nemo tenetur cannot, even in the sense of the constant case law of the Constitutional Court, be regarded as impasse. Its fundamental importance for the fairness of the criminal trial is undeniable, but its application should not provide absolute protection to the accused (suspect) in the sense that the accused (suspect) would not be obliged to participate in investigative acts at all or all.
22. The action which the complainant refused to submit to in the case sp. zn. I. ÚS 671 / 05 and in the case now discussed by the Second Chamber under sp. zn. II. ÚS 2369 / 08, i.e. the removal of odour marks, as well as the collection of hair and buccal swabs which the Constitutional Court has dealt with under sp. zn. III. ÚS 655 / 06, is one of the acts carried out under § 114 of the Code of Criminal Procedure.
23. Paragraph 114 of the Code of Criminal Procedure states in the first paragraph that every person must be subject to a search of the body if it is necessary to establish whether there are traces or consequences of a crime on his body. The second paragraph imposes an obligation on any person to tolerate the removal of blood from his or her doctor or medical professional or to perform any other necessary action (in general collection of biological material), unless it is associated with a danger to his or her health. Paragraph 114 (3) of the Code of Criminal Procedure states that if the identity of the person who was present at the scene of the crime is to be ascertained in the evidence, the person concerned shall be required to suffer the actions necessary for such detection. If the person concerned fails to comply with the obligations, he may be fined in accordance with Section 66 of the Penal Code. However, the condition is that such a person should be warned in advance of the consequences of non-compliance (Section 114 (5) of the Criminal Code). From the effectiveness of the amendment to the Code of Criminal Procedure implemented by Law No 321 / 2006 Coll. the suspect or accused shall also be informed of the possibility of action under Paragraph 4 (114) of the Code of Criminal Procedure, which, under certain conditions, allows the enforcement of the enforcement of the acts referred to in paragraphs 1 to 3, with the exception of the collection of blood or other similar act linked to the intervention of physical integrity, as well as by physical overcoming of resistance.
24. Evidence obtained on the basis of acts under Section 114 of the Penal Code falls within the category of evidence which exists independently of the will of the suspect, i.e. those which can be obtained under certain conditions, in accordance with the case law of the European Court of Justice, by means of legal coercion without violating the rule of nemo tenetur. These are procedures that the accused (suspect) only tolerates, most often only has an obligation to endure the provision of an objectively existing sample of matter. The body of the defendant (suspect) is a passive object of examination, no active interaction is required. The appearance and participation in the operation as an "active action 'within the meaning of the above is not considered, as is the performance of normal physiological functions (for example when taking a breath, urine or voice sample).
25. In particular, the removal of a comparison sample of odour is carried out by the addition of a scent sensor to the body of the defendant (suspect) for several minutes. The hair sample shall be taken by cutting off a small lock of hair, a buccal swab consisting of wiping the surface of the inner surface of the oral cavity with a swab from a sterile standard sample set, without opening the mouth of the person concerned, but only sufficient "detachment" of the lower lip, which is subsequently collected from the inner side. These are so-called non-invasive methods of collecting biological material which are completely painless and not associated with the health hazard of the person who is subject to them. All actions may be carried out by a person himself, as instructed by a police officer or a medical professional. In technical terms, the actions are described in detail in internal police regulations, are completely safe, lasting for a few minutes and are linked with only a slight interference in physical integrity, and do not burden the person even mentally.
26. In terms of grammatical interpretation, the translation of Latin Mudroprovera nemo tenetur with ipsum accusare should also be taken into account in the context of the so-called non-invasive method. In addition to the translation used in the different opinion of Jan Musil and cited in paragraph 8 of this opinion, the generally tradable translation of the verb tenere is also offered in the most commonly used Czech meaning "hold," possibly "hold firmly" (cf. J. M. Pražák, F. Novotný, J. Sedláček: The Latin-Czech dictionary for the need for gymnastics and real gymnastics, 15th edition, Prague 1941, p. 1200-1201), in the passive infinity next to the imperfect "to be bound" stands equally perfect "to be bound." The Latin indication of Praesent has only one common shape to express Czech vision of perfect and perfect. In the case of the removal of the odour trace, the collection of hair or buccal swab when choosing the just described meaning of the verb tenere - as explained above - using the procedure set out in paragraph 25 of this opinion, the tenent is not affected and therefore the principle cited is not infringed.
27. The procedure described in which the odour is removed, the hair sample or the buccal swab, even if not with the consent of the accused (suspect), cannot be seen as an unconstitutional procedure contrary to the constitutionally guaranteed rights of the accused (suspect). The opposite interpretation would, in its consequences, lead to a conflict with the general interest in protecting society against criminal offences and in order to detect these and their perpetrators by law fairly punished. Therefore, in order to achieve that purpose, the criminal law enforcement authorities are obliged to investigate the facts which are both to the benefit and to the detriment of the accused (ex officio) in such a way as to clarify as quickly as possible, to the extent necessary, all the facts relevant to the assessment of the case, including the person responsible for the offence (Sections 2 and 164 of the Code of Criminal Procedure). To this end, the acts covered by Section 114 of the Code of Criminal Procedure are also to contribute, provided that the procedure laid down in the law is followed in implementing them. The methods used must respect the general principles on which the activity of the state authorities is based, in particular the constitutional rights and freedoms of the persons concerned (cf. § 2 (4) of the Code of Criminal Procedure, § 9 and 11 of Act No. 273 / 2008 Coll., on the Police of the Czech Republic).
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Court of First Instance took a different position on the position of Judge Eliška Wagner in plenary.
*) NB: Collection of finds and orders of the Constitutional Court, Volume 40, Found No. 41, p. 341
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Regulation Information
| Citation | Notice from the Constitutional Court No 439 / 2010 Coll., on the adoption of the Opinion of the plenary of the Constitutional Court of 30 November 2010 sp. zn. Pl. ÚS.st. 30 / 10 on the acts of § 114 of Act No. 141 / 1961 Coll., on criminal proceedings of the Court (Criminal Code), as amended, in order to remove the odour trace, the removal of a sample of hair and buccal swab |
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| Regulation Type | Communication from the Constitutional Court |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 31.12.2010 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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