2002/03/21 - III. ÚS 256/01: Photo Identification

21 March 2002

HEADNOTES

There

can be no doubt that the institute of photo-identification is an

effective evidentiary means, thus is an institute enabling the

attainment of a public estate (good), consisting in the proper discovery

of criminal offenses and the just punishment of the perpetrators. 

Apart from that, photo-identification fulfills another purpose as well. 

In view of the fact that identification is one of the means of

verifying that direct testimony is credible, it also fulfills the

purpose of excluding innocent persons from suspicion, thus the purpose

of protecting individual rights from being affected by unwarranted

prosecution and conviction.

The statutory authorization in the

sense of § 12 para. 2 of the Civil Code can be considered as

constitutionally conforming only in the case that the pursued official

purpose cannot be attained while obtaining the consent of the affected

person before using their pictures, that is, the acceptance of § 12

para. 2 of the Civil Code in relation to § 12 para. 1 of the Civil Code

under the condition of subsidiarity.

In a democratic

constitutional order, the attainment of the purpose of discovering

criminal offenses and punishing their perpetrators in a criminal

proceeding is generally tied up with a whole host of indispensable

intrusions into the rights of personhood of persons other than the

suspect, or the accused.  An example is the entitlement to order an

examination or an autopsy of a corpse or its exhumation (§ 115 of the

Criminal Procedure Code) in relation to the rights of personhood under §

15 of the Civil Code, or the duty to testify (§ 97 of the Criminal

procedure Code) and, in this connection, even suffer questions relating

to credibility, which, from the nature of the thing, oversteps the

bounds protecting personhood under § 11 of the Civil Code.  The

institute of photo identification, under consideration in this matter,

does not diverge from the framework of these generally accepted examples

of conflict with the right of personhood.

  It is a statutory

condition for holding a photo identification that all comparison

photographs must be of persons who are not involved in the criminal

proceeding at issue.  Thus, the use in a criminal proceeding of

photographs of persons not involved therein for identification purposes

does not result in their rights of personhood stemming from § 11 of the

Civil Code (for example, the right to the protection of their honor and

good name in connection with an unauthorized origination of suspicion of

committing a criminal offense and its dissemination in public) being

affected.  Moreover, a photo identification is included in the court

record, but this is not a public document and the opportunity to peruse

it is restricted to a class of persons precisely defined by law (§ 65 of

the Criminal Procedure Code).


 

CZECH REPUBLIC 

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


Following

an oral hearing, held on 21 March 2002 by a Panel, the Constitutional

Court decided in the matter of the constitutional complaint of JUDr. L.

K. and I. M., with the Czech Republic – Ministry of Interior of the

Czech Republic taking part as a secondary party, against the 6 February

2001 judgment of the High Court in Prague, file no. 1 Co 291/2000 and 1

Co 293/2000, on the protection of personhood, and on the declaration of a

duty under § 82 para. 3 let. b) Act No. 182/1993 Coll., as subsequently

amended, and in the matter of a petition for the issuance of

provisional measures, as follows:


The petition is rejected on the merits.



REASONING


I
 

The Definition of the Matter according to the Constitutional Complaint
 


In

their petition, submitted for delivery to the Constitutional Court on

25 April 2001, that is, within the term prescribed in § 72 para. 2 of

Act No. 182/1993 Coll., as subsequently amended, the complainants

requested the annulment of the 6 February 2001 judgment of the High

Court in Prague, file no. 1 Co 291/2000 and 1 Co 293/2000, on the

protection of personhood, further the declaration directed to the Chair

of Panel 2 T of the District Court in Cheb of the duty to remove from

file no. 2 T 171/2000 all photographs of the complainants and their

names and titles, whether in pictorial or written form, and to destroy

them within 15 days of the delivery of the Constitutional Court

judgment.  In addition, they requested the Court to issue provisional

measures which impose upon the District Court in Cheb the duty to

„restrict access to photographs of the complainants, as well as their

names, found in the photo-album, kept in the file originally opened by

the Czech Police - Cheb District Office of Investigation as file no.

OVCH 410/2000, now held by the District Court in Cheb as file no. 2 T

171/2000 and all copies thereof, at their own expense within three days

of the announcement of this judgment“.  As a result of the mentioned

decision of the High Court in Prague, as well as the steps taken by the

Czech Police – Cheb District Office of Investigation and the District

Court in Cheb, they feel themselves to be affected in their basic rights

arising from Art. 2 para. 2, Art. 7, and Art. 10 of the Charter of

Fundamental Rights and Basic Freedoms (hereinafter „Charter“).
 


II
 

Recapitulation of the Matter in the Proceedings before the Ordinary Courts
 


The following was ascertained from the files of the Regional Court in

Plzen, nos. 19 C 43/2000 and 19 C 44/2000, which the Constitutional

Court requested, and from the enclosure to the constitutional complaint:
 

In

their action before the ordinary court the complainants demanded from

the defendants (the secondary parties in the proceeding before the

Constitutional Court) an apology and compensation of non-property damage

in the amount of 500 000 CZK, as they felt affected in their right to

the protection of personhood arising from § 11 and following of the

Civil Code, due to the manner in which state bodies acting in the

criminal proceeding, in the matter conducted by the Czech Police – the

Cheb District Office for Investigation, made use, for the purposes of

identification, of their photographs with their names and dates of birth

given.  
…..
 


V.

Evidentiary Hearing
 


Pursuant to § 48 para. 1 of Act No. 182/1993 Coll., as subsequently

amended, the Constitutional Court shall admit all evidence which is

necessary to establish the facts of the case, shall decide which of the

proffered evidence should be admitted, and may also admit evidence other

than that which has been proposed.

This statutory provision

must be interpreted in light of Art. 83 of the Constitution, according

to which the Constitutional Court is the judicial body responsible for

the protection of constitutionalism, as well as from the perspective of

current case law, in which is accentuated that the Constitutional Court

and ordinary courts have differing functions.  The Constitutional Court

adjudges decisions of ordinary courts contested by means of a

constitutional complaint solely from the perspective of whether

fundamental rights and basic freedoms guaranteed by constitutional acts

and treaties under Art. 10 of the Constitution have been affected, and

not by reviewing the merits of the matter from the perspective of

ordinary law.  From this can be deduced, in the area of evidence taking,

the maxim that evidence is taken in relation to facts verifying the

complainant’s assertion that he has been affected in his fundamental

rights and basic freedoms, but not evidence in relation to the merits of

the case, that is evidence concerning matters on the plane of ordinary

law, leading to a decision on the merits of the case.  This

differentiation is one of the features distinguishing the constitutional

judiciary from the ordinary judiciary.

In view of the indicated

safeguard, for the purpose of verifying the assertions contained in a

constitutional complaint, the evidence taken by the Constitutional Court

in the instant case took the form of confirming the precise wording of

the article authored by Jaroslav Fikar, published in the newspaper,

Blesk, on 2 June 2000 on page 4 with the title, “Prominent Persons Are

on the List”:

“CHEB – A large police scandal threatens to erupt

in Cheb due to the inclusion of 61 photographs and personal data of

judges, civil servants, and persons who are local prominent into a

classified file  OVCH 410/2000.  It concerns the investigation of

trafficking in drugs and women.  The case took on large proportions on

17th and 18th of March, when 18 of the accused were taken into custody. 

.  .  .  Among the 61 photographs in the file appeared the personal

data of one of the District Court judges, high civil servants, several

attorneys, a number of well-known entrepreneurs and prominent persons. 

At the instigation of advocates Ladislave Kubíček and Petr Bayer, the

judge issued provisional measures.  .  .  .  One of the suspects, No.

56, is entrepreneur Ivo Mlátilík, the former owner of FC Union Cheb  . 

.  .“

In the oral hearing, the Constitutional Court further

questioned the secondary party on practical issues involved in the Czech

Police holding of a photo identification.  According to the secondary

party’s testimony, the Czech Police hold identifications in accordance

both with the relevant provisions of the Criminal Procedure Code, and

the regulation of the Interior Minister No. 82/1995 (Ar. 74), which

govern the criminal procedure and criminalistic aspects of

identification.  Comparison photographs of uninvolved persons are taken

either from police photo albums or from records kept by the police,

among which included, at the time in question, records of civil identity

cards.  Since a central database has not yet been created, use is made

of photographs which are available to the police in district records.
 


VI
Admissibility of the Constitutional Complaint
 


   

Prior to adjudging the constitutional complaint on the merits, the

Constitutional Court stated, in regard to the objection made by the

secondary party, that it did not find in the present matter the

condition had been met for rejecting the constitutional complaint as

inadmissible pursuant to § 43 para. 1, let. e) and § 75 para. 1 of Act

No. 182/1993 Coll., as subsequently amended.  It based this finding on

its constant jurisprudence, according to which
as remedial

procedures for the protection of rights may be considered only those

procedures leading to the review of a decision of a public authority,

which is within the procedural control of the party to the proceeding

and not dependant on the decision of the relevant authority.  For the

given reason, to submit a complaint of the violation of the law in a

criminal proceeding does not qualify, nor does a petition, in civil law

proceeding, for leave to submit an extraordinary appeal on the grounds

that a legal issue of basic significance is involved.  It must, in

addition, be emphasized that the purpose of extraordinary appeals in

matters which are of basic significance in terms of law, is the

necessity of unifying the case law of the ordinary courts, that is, the

unification of the interpretation and application of ordinary law, which

falls entirely within the jurisdiction of the Czech Supreme Court.

(see, for example, the judgments in matters Nos. III. US 224/98, I. US

539/98, II. US 21/97.)
 


VII
Ratio Decidendi
 


VII/a
The Scope of Constitutional Review
 

The

assessment of whether an encroachment by a public authority upon

fundamental rights and basic freedoms is unconstitutional consists of

several components (III. US 102/94, III. US 114/94, III. US 84/94, III.

US 142/98, III. US 224/98).  The first is the adjudication of the

constitutionality of the legal provisions that have been applied in the

case (which follows from § 68 para. 2 of Act No. 182/1993 Coll., as

subsequently amended).  Further components are the evaluation of whether

constitutional procedural rights have been observed, and finally the

adjudication of whether the substantive legal provision was interpreted

and applied in a constitutionally conforming manner.
 


VII/b
Assessment of the Matter on the Ordinary Law Plane
 

The

Constitutional Court adjudicated the matter on the basis of the factual

findings made by the ordinary courts, which were contested by the

complainants and the secondary party.  These findings indicate that

during the month of March, 2000 the investigator of the Cheb District

Office of Investigation, in a criminal prosecution against a group of

persons accused of the criminal offense of trafficking in women under §

246 para. 1, para. 2 let. a), c) of the Penal Code and of procurement

under § 204 para. 1, 2, 3 let. b) of the Penal Code, carried out several

identification proceedings with the aim of identifying and designating

the accused from among uninvolved persons.  For this purpose he compiled

a collection of photographs, drawing upon the registry of photographs

for civil identity cards, into which, in addition to the photographs of

the accused, were inserted photographs of extras, including the

complainants, who were not involved in the criminal proceeding in any

way.  The matter is before the District Court in Cheb, under file no. 2 T

171/2000, and has not as yet resulted in a final judgment.

From

the perspective of ordinary law, the following provisions are applicable

for the adjudication of the instant case:  § 12 para. 2 of the Civil

Code, § 93 para. 2 and § 103 of the Criminal Procedure Code (which in

the matter of photo identification was, by virtue of an amendment to the

Criminal procedure Code, Act No. 265/2001 Coll., which entered into

effect on 1 January 2002, supplemented by a new provision, § 104b para. 4

of the Criminal Procedure Code, § 4 of Act No. 75/1957 Coll., on Civil

Identity Cards (which was repealed and superseded by Act No. 328/1999

Coll., on Civil Identity Cards, as of 1 July 2000 pursuant to § 29 of

Act No. 133/2000 Coll., on Records concerning the Inhabitants, and

pursuant to § 28 of Act No. 328/1999 Coll.), § 2 para. 1 let. l),  § 45a

Act No. 283/1991 Coll., on the Czech Police, as subsequently amended.

Pursuant

to § 12 para. 2 of the Civil Code, the use of a person’s picture does

not require consent, if it is used for official purposes on the basis of

a statute.  In the matter under consideration, the official purpose is

defined by the provisions of § 93 para. 2 and § 103 of the Criminal

Procedure Code. It governs the proceeding in a criminal proceeding, in

particular that component of the witness testimony which is the

identification of the suspect (the accused).  The relevant provisions of

Act No. 75/1957 Coll., on Civil Identity Cards, and Act No. 283/1991

Coll., on the Czech Police, as amended as of 30 April 2000, were the

statutory basis upon which, in the crucial period (March, 2000), rested

the possibility to attain the given official goal by the use of a

picture (photograph) without the affected person’s consent.

Provision of § 4 of Act No. 75/1957 Coll., vests in the Czech Police the

task of issuing civil identity cards.  The Police are entrusted, by § 2

para. 1, let. l) of Act No. 283/1991 Coll., as subsequently amended,

with maintaining the records necessary for it to fulfill this task. 

Pursuant to § 45a of Act No. 283/1991 Coll., as amended as of 30 April

2000, information from the records keeps by the police pursuant to § 2

para. 1, let. l), may be made available to the services which operate

within the police, the Ministry of Interior, the Security Information

Services of the Czech Republic, the Military Defense Intelligence and

Military Police; other state bodies and organizations, solely if such is

necessary for them to fulfill the tasks given them by statute.  As was

already stated, Act No. 75/1957 Coll., on Civil Identity Cards, was

repealed and superseded by Act No. 328/1999 Coll., on Civil Identity

Cards, as of 1 July 2000 (pursuant to § 29 of Act No. 133/2000 Coll., on

Records concerning the Inhabitants, and pursuant to § 28 of Act No.

328/1999 Coll.).

The Regional Court in Plzeň, as well as the

High Court in Prague, decided the complainant’s suit pursuant to § 11

and following of the Civil Code and not pursuant to § 13 of Act No.

82/1998 Coll., Responsibility for Damage Caused in the Exercise of

Public Authority by Decision or by Incorrect Official Conduct, as

subsequently amended.  Implicitly and in harmony with the nature of the

decided matter, it evaluated the relations between the plaintiffs and

defendant (complainants and secondary party in the proceeding before the

Constitutional Court) as relations in which the subjects are on equal

terms, that is, private law relations, and not as responsible relations

arising from a violation of the State’s duties, connected with its

governing status.  Thus, the complainants are not participants in the

criminal proceeding at issue, for which reason no effective procedural

means for the protection of their rights existed within the confines of

this proceeding.  The Constitutional Court also agrees with the legal

view espoused by the fact finding court, according to which, in view of

the divided regulation of jurisdiction and venue in the Civil Procedure

Code, the petition put forward by the complainants could not be decided

after joining the matter together with a petition put forward under Act

No. 256/1992 Coll., on the Protection of Personal Data in Informational

Systems.
.  .  .  .
 


VII./c
The

Application of the Schumann Formula following a Change in the Ordinary

Law Relevant in the Matter in View of the Legal Effect ex nunc of

Constitutional Court Judgements
 

In

view of the fact that at the time the Constitutional Court is deciding

on a constitutional complaint the ordinary law which forms, or should

form, the normative basis for the ordinary court to adjudge the matter

has already lost force and effect, or was amended or supplemented, and

this in connection with § 67 para. 1 of Act No. 182/1993 Coll., as

subsequently amended, as well as in view of the legal effects of a

decision in a norm control proceeding (§ 70 para. 1 of the Act on the

Constitutional Court – see Judgment No. Pl. US 31/96), it is no longer

pen to the Constitutional Court to adjudge the constitutionality of

ordinary law enactments in the sense of § 78 para. 2 of Act No. 182/1993

Coll., as subsequently amended.
 

For

these reasons, it is no longer competent to concern itself with the

constitutionality of the given statutory structure and respect that

function which falls to it by virtue of § 78 para. 2 of Act No. 182/1993

Sb, in conjunction with Art. 87 para. 1, let. a), b) of the

Constitution, for even from doctrinal safeguards, as they are expressed

in the Schumann formula (E. Schumann, Verfassungs- und

Menschenrechtsbeschwerde gegen richterliche Entscheidungen. Berlin 1963,

p. 206 and following; V. Šimíček, The Imperative of the

Constitutionally Conforming Interpretation and Application of Legal

Enactments, The Lawyer, No. 12, 1999, pp. 1083-1084)



VII./d

Adjudication

of the Constitutionality of the Interpretation, the Application, and

the Nature of the Ordinary Law Relevant in the Matter
 

In

view of its assertion that the ordinary courts did not, in their

decisions contested in the constitutional complaint, overstep the bounds

defined by ordinary law, the Constitutional Court considered whether

the complainants have been affected in their fundamental rights or basic

freedoms arising from the Charter or from treaties under Art. 10 of the

Constitution due to an interpretation or application that is in

conflict with the Constitution, or by the nature of the ordinary law.

The Constitutional Aspect of the Purpose of Identification

The first question which must be answered in this regard is whether the

purpose contained in § 93 para. 2 and § 103 of the Criminal Procedure

Code stands in competition with the protection of the basic right

arising from Art. 10 para. 1 of the Charter.

In a number of its

decisions, the Constitutional Court expressed the view according to

which a conflict occurs at the constitutional level not only between

basic rights and freedoms, but also between basic rights and freedoms

and other constitutionally protected values.  In this regard, it

declared, in its judgment in the matter Pl. US 15/96, the following: 

“The constitutional principles concerning the status of the individual

in society contain the protection of individual rights and freedoms, as

well as the protection of public goods.  The difference between them

consists in their distributability.  It is typical for public goods that

their benefits are not divisible, so that people may not be excluded

from the enjoyment of them.  Public goods include, for example, national

security, public order, and a healthy living environment.  Certain

aspects of human existence become public goods under the condition that

it is not possible, conceptually, materially, or legally, to separate

them into parts and allocate these parts as shares to individuals.” 

[For the concept of public goods in economic literature, see, e.g., P.

A. Samuelson, W. Nordhaus, Economics, Prague 1991, pp. 770-771, 982; in

the legal literature, see, e.g., J. Raz, Right-Based Moralities, in: 

Theories of Rights, (Ed. J. Waldron), Oxford 1984, p. 187; R. Alexy,

Recht, Vernunft, Diskurs, Studien zur Rechtsphilosophie, Frankfurt a. M.

1995, p. 239 and following]  In contrast to public goods, it is a

typical characteristic of basic rights and freedoms that they are

capable of being distributed. Aspects of human existence, such as

personal liberty, the freedom of expression, participation in political

events and the right to vote connected therewith, the right to serve in

public office, and the right to associate in political parties, can

conceptually, substantively and legally be divided into parts and

allocated to individuals.  It is necessary, for the event of a conflict,

to lay down the conditions under which, if fulfilled, one basic right

or freedom takes priority, certain public estates on the fulfillment of

other conditions.  What is fundamental in this connection is the maxim

according to which a fundamental right or freedom may be restricted only

for the benefit of another fundamental right or basic freedom or of a

public good.”

Proceeding from the above-given definitional

perspectives for the constitutional law demarcation of protected public

goods, among them belongs as well the endeavor to ensure internal peace

in society, consisting in the proper discovery of criminal offenses and

the just punishment of the perpetrators in a fair trial, which enters/is

projected onto the constitutional plane in Art. 80 para. 1 and Art. 90

of the Constitution, Art. 39 and Art. 40 of the Charter.  Evidentiary

means, provided for in the Criminal Procedure Code, are also one of the

partial instruments for attaining this public estate/patrimony (good),

and among them are included recognition (or the identification of

persons or things), which is laid down in § 93 para. 2 and § 103 of the

Criminal Procedure Code (as amended as of 30 April 2000).


The

Weighing of the Conflict between the Right to the Protection of

Personhood and the Public Good in the Discovery of Criminal Acts and the

Just Punishment of their Perpetrators
The Constitutional Court

considers that, from the constitutional law perspective, the key issue

is whether, in the instant case, the relevant provisions of ordinary law

satisfy the condition of statutory authorization for the restriction of

the right to the protection of personhood pursuant to § 12 para. 2 of

the Civil Code, in particular from the perspective of the collision of

basic rights arising from Art. 10 of the Charter and the public purpose,

which is the proper discovery of criminal offenses and the just

punishment of the perpetrators within the framework of due process,

which projects onto the constitutional plane through Art. 80 para. 1 and

Art 90 of the Constitution and Art. 39 and Art. 40 of the Charter, onto

the level of ordinary law through § 93 para. 2 and § 103 of the

Criminal Procedure Code (as amended as of 30 April 2000).

The

standard method by which the Constitutional Court adjudges a conflict of

basic rights or freedoms, or their conflict with some other

constitutionally protected value, is the method of proportionality.  It

has, in a number of its judgments (see in particular judgment in the

matter Pl. US 4/94, Pl. US 15/96, Pl. US 16/98), adumbrated the

structure of this method and its component parts.

In the matter

under consideration, there can be no doubt that the condition of

appropriateness (or the satisfaction of the connection between the means

and the end) has been met, in other words that the institute of

photo-identification is an effective evidentiary means, thus is an

institute enabling the attainment of a public estate (good), consisting

in the proper discovery of criminal offenses and the just punishment of

the perpetrators.  Apart from that, photo-identification fulfills

another purpose as well.  In view of the fact that identification is one

of the means of verifying that direct testimony is credible, it also

fulfills the purpose of excluding innocent persons from suspicion, thus

the purpose of protecting individual rights from being affected by

unwarranted prosecution and conviction.

The second perspective

of weighing is a comparison of the institute of identification in which,

apart from the use of photographs of the suspect, use is also made of

photographs of persons not involved in the proceeding, without their

consent, with other possible ways of proceeding which would also enable

the goals of identification to be achieved but without affecting the

rights of personhood under Art. 10 para. 1 of the Charter in conjunction

with § 12 para. 1 of the Civil Code.

In other words, from the

given requirements flows, on a general plane, the maxim according to

which the statutory authorization in the sense of § 12 para. 2 of the

Civil Code can be considered as constitutionally conforming only in the

case that the pursued official purpose cannot be attained while

obtaining the consent of the affected person before using their

pictures, that is, the acceptance of § 12 para. 2 of the Civil Code in

relation to § 12 para. 1 of the Civil Code under the condition of

subsidiarity.

The requirement of the subsidiarity of the means

of proceeding by statutory authorization in relation to assessing the

possibility of achieving the pursued official purpose by proceeding

pursuant to § 12 para. 1 of the Civil Code is tied up with the

fulfillment of at least one of the following conditions:  the first is

an empirical condition, that is the actual impossibility of securing

such consent (or consents); the second is the condition in which the

requesting of consent would make impossible, thwart, or not facilitate

the accomplishment of the official purpose pursued by law and flowing

from the Constitution.

As follows from the criminalistic function

that photo identification plays in criminal proceedings, in contrast to

identification in natura, it is generally carried out at the start of

an investigation, or in the form of an exigent and unrepeatable task. 

It is thus invariably necessary that it be carried out in a speedy and

efficient fashion.  Under such circumstances, to require that the

consent of uninvolved persons be obtained before the creation of

comparison albums which include their photographs would genuinely

undermine the carrying out of the identification and render it

impossible to make use of it as evidence in the criminal proceeding.

It is nonetheless necessary to weigh the possibility of obtaining in

advance the consent of uninvolved persons before placing their

photographs in comparison albums, for the purpose of identification.

To assess the feasibility of this alternative does not depend on its

being well-founded in constitutional law (as was the case, for example,

in the matter Pl. US 15/96, in which the statutory provision was

annulled due to its violation of the requirement of necessity), rather

on an assessment of the empirical impracticability of carrying it out. 

From the nature of the thing, however, the empirical confirmation of a

hypothetical alternative is not amendable to proof, the objects of which

are solely past occurrences.  In such a situation, the Constitutional

Court is limited, in confirming or rejecting weighed alternatives, to

inductive methods, that is, consideration by analogy, or consideration

of comparative law.  In this connection, the Constitutional Court has

not found, in the field of criminal law, any analogous examples where

the consent of the affected persons is obtained before a database of

personal data or objects of a personal nature is created for the

purposes of criminal proceedings.  From a comparative perspective, it

did not find a similar approach even in comparable European countries

(FRG, Austria).  On the contrary, the possibility of obtaining the

consent of third persons in advance of including their photographs in a

database to be used for the purpose of identification is considered “as

illusory” in the expert literature (H. Artkämper, Gegenüberstellungen –

Erkenntnisquelle mit Kauteln. Kriminalistik, 10, 1995, p. 648).

In view of the above, it can be affirmed that, from the view of the

conflict between the basic rights arising from Art. 10 para. 1 of the

Charter and the public estate (good) arising from Art. 80 para. 1 and

Art. 90 of the Constitution, as well as Arts. 39 and 40 of the Charter,

the ordinary law model under consideration also met the requirements

tied in with the postulate of necessity.

The third component of

the proportionality methodology is the comparison of the basic rights

and freedoms that come into conflict with each other, or with public

estates (goods).

In a democratic constitutional order, the

attainment of the purpose of discovering criminal offenses and punishing

their perpetrators in a criminal proceeding is generally tied up with a

whole host of indispensable intrusions into the rights of personhood of

persons other than the suspect, or the accused.  An example is the

entitlement to order an examination or an autopsy of a corpse or its

exhumation (§ 115 Criminal Procedure Code) in relation to the rights of

personhood under § 15 of the Civil Code, or the duty to testify (§ 97

Criminal Procedure Code) and, in this connection, even suffer questions

relating to credibility, which, from the nature of the thing, oversteps

the bounds protecting personhood under § 11 of the Civil Code.  The

institute of photo identification, under consideration in this matter,

does not diverge from the framework of these generally accepted examples

of conflict with the right of personhood.

From a comparative

perspective, reference can also be made in this connection to the

relevant case-law of the Federal Constitutional Court of the FRG which,

in its judgment concerning the constitutionality of the Census Act

(BVerfGE, 65, 1), laid down the criteria for the constitutional

acceptability of the collection, storage, and use of personal data, or

of objects of a personal nature, on the part of state bodies.  It

declared that restrictions on the right to informational

self-determination are only admissible if an overriding general interest

exists and that it must be laid down in a law which satisfies the

constitutional requirements of definiteness and clarity, as well as

additional requirements stemming from the proportionality principle. 

Further, it must contain the procedural steps which act against the

threat that the right to the protection of personhood will be infringed.

The Czech Constitutional Court has made an analogous declaration that

one of the components of the proportionality method (arising from Art. 4

para. 4 of the Charter) is the careful consideration of the possibility

to minimize the restriction of one fundamental right or freedom

standing in conflict with another, or with a public good.  In connection

with the matter under consideration, the mentioned crucial circumstance

must be found in the restriction supplied by the content (found in) §

11 of the Civil Code. In other words, the statutory authorization under §

12 para. 2 of the Civil Code represents an exception to § 12 para. 1 of

the Civil Code but may not, in its content, represent the affecting of

right under § 11 of the Civil Code.

From the perspective of this

maxim, it can be declared that the model of ordinary law under review,

as well as its interpretation and application in the instant case,

honors the requirements flowing therefrom. The statutory authorization

under § 12 para. 2 of the Civil Code, in conjunction with § 93 para. 2

and § 103 Criminal Procedure Code, § 4 of Act No. 75/1957 Coll., and § 2

para. 1 let. l) and § 45a of Act No. 283/1991 Coll. in no sense results

in the rights of personhood stemming from § 11 of the Civil Code being

affected in any way.

This stated conclusion does not diverge

from the bounds of the existing standard in European democracies.  In

accepting the point of view laid down by the Federal Constitutional

Court of the FRG in the matter of the Census Act’s constitutionality

(BVerfGE, 65, 1), the German Criminal Procedure Code allows for a

similar approach (see §§ 483, 484 a 163), as does Land legislation (for

example, § 39 of the Act of Lower Saxony on Protection from Danger), as

well as the Act on Passports (§§ 21 and 22) and the Act on Personal

Identity Cards (§ 2).  The ordinary law in the Austrian Republic

contains similar provisions according to which the approach under

adjudication is admissible, for example § 64 of the Act on the Police, §

24 of the Criminal Procedure Code, as well as § 22 para. 3 of the

Criminal Procedure Code in conjunction with § 53 para. 2 of the Act on

the Police and also in conjunction with § 22a and 22b of the Act on

Passports.  In addition, the Constitutional Court of the Austrian

Republic declared in two of its decisions in analogous cases (VfSlg.

5.089/1965 a VfSlg. 9.934/1984) that the creation of photographs in the

course of an identification procedure does not constitute the violation

of fundamental rights or freedoms (Art. 8 of the Basic State Law of

Universal Civil Rights of 21 December 1867, which was superseded by the

Constitutional Act of 29 November 1988 on the Protection of Personal

Liberty).

From the viewpoint of the requirement that

encroachment upon basic rights or freedoms be minimized while respecting

the conditions of the proportionality principle, reference must be made

to the fact that identification by means of photographs represents in

intensity a lesser encroachment upon the rights of personhood than does

identification in natura, it is thus a more moderate means (agreement in

doctrine:  H. Artkämper, Gegenüberstellungen – Erkenntnisquelle mit

Kauteln. Kriminalistik, 10, 1995, p. 650; R. Riegel,

Wahllichtbildvorlage und informationelles Selbstbestimmungsrecht. ZRP,

12, 1997, p. 477).

In the decided matter, the ordinary courts,

in applying and interpreting the relevant ordinary law, also in view of

its nature, did not diverge from the safeguards which the

proportionality principle places upon them.  In view of the above, that

is in view of the conclusion that the ordinary courts, in interpreting

and application of ordinary law in the decisions contested in the

constitutional complaint, did not come into conflict with basic rights

arising from the Charter or with treaties under Art. 10 of the

Constitution, the Constitutional Court rejected on the merits the

petition to annul the 6 February 2001 judgment of the High Court in

Prague file nos. 1 Co 291/2000 a 1 Co 293/2000.   

These grounds

of decision, in their entirety, have an impact as well on the

adjudication of the complainant’s petition for a judgment under § 82

para. 3 let. b) of Act No. 182/1993 Coll., as subsequently amended, as

well as the petition for the issuance of provisional measures, thus the

Constitutional Court rejected these on the merits as well.
 


VIII.

Obiter Dictum
 

It

is a statutory condition for holding a photo identification that all

comparison photographs must be of persons who are not involved in the

criminal proceeding at issue. Thus, the use in a criminal proceeding of

photographs of persons not involved therein for identification purposes

does not result in their rights of personhood stemming from § 11 of the

Civil Code (for example, the right to the protection of their honor and

good name in connection with an unauthorized origination of suspicion of

committing a criminal offense and its dissemination in public) being

affected.  Moreover, a photo identification is included in the court

record, but this is not a public document and the opportunity to peruse

it is restricted to a class of persons precisely defined by law (§ 65 of

the Criminal Procedure Code).

As follows from the evidence

taken in the proceeding before the Constitutional Court, it would be

possible to find that an intrusion upon the complainants‘ rights of

personhood had been committed by a person who in relation to the

complainant expressed and disseminated information which connected the

use of their photograph for an identification in a matter in which they

were not involved, while designating them as suspects.  In respect of

determining the capacity to be sued in a proceeding on the protection of

personhood, however, the Czech Republic is not a possible defendant.

Notice:  This judgment may not be appealed.

Brno, 21 March 2002