Judgment Pl. ÚS 7/18
The Plenum of the Constitutional Court (Justice Rapporteur Jiří Zemánek) rejected the motion of the Municipal Court in Prague to repeal Section 65(1) of Act No 273/2008, on the Police of the Czech Republic, as amended, in the words “and to take biological samples enabling information on genetic makeup to be obtained”. The part of the motion seeking the repeal of Section 65(5) of the same Act was dismissed on the ground that the movant was not eligible.
The Municipal Court in Prague (hereinafter the “movant”) is hearing an action against the unlawful intervention of the Police of the Czech Republic, which is to consist in summoning the applicant in accordance with Section 59 of Act No 500/2004, the Administrative Code, as amended, to undergo identification acts (ascertaining the applicant’s physical features and taking fingerprints and biological samples) in accordance with the procedure provided under Section 65 of Act No 273/2008, on the Police of the Czech Republic, as amended (hereinafter the “Police Act”). By an interim measure issued in the present proceedings, the movant ordered the Police to refrain, until decision on the action itself becomes final and enforceable, from taking the applicant’s fingerprints, ascertaining his physical features, taking measurements of his body, making visual, audio and similar recordings and taking biological samples enabling information on his genetic makeup to be obtained for the purposes of future identification. Therefore, no biological samples of the applicant had yet been obtained. In the applicant’s view, the taking of biological samples is not appropriate, since he is being prosecuted for a petty offence which, moreover, is in no way related to criminal activity that can be detected by identifying the perpetrator through his deoxyribonucleic acid (DNA) profile. In addition, the applicant points to the fact that he has not yet been convicted. In his opinion, the legal regulation of the collection and, above all, the storage of biological samples is insufficient, as it is not precisely defined after what period of time the samples are to be destroyed.
The movant proposed that the contested provisions be annulled on the grounds of contravention of the constitutional order, since the Police are allowed to take samples of biological material from, inter alia, any person who has been accused or who has been notified in summary criminal proceedings of suspicion of having committed a deliberate criminal offence. The movant submits that, as regards the period of retention of such samples, Section 65 of the Police Act contains only a vague wording in paragraph five, according to which the Police shall, in simple terms, destroy the personal data retained as soon as they are no longer needed for the performance of its tasks. The movant is of the opinion that the relevant legislation does not comply with the strict requirements imposed by the case law of the European Court of Human Rights on Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms concerning interference with privacy and the collection of personal data.
The Constitutional Court first assessed whether the procedural prerequisites for filing the motion were met. In the case before the movant, which serves as the basis for the motion in question, the subject of consideration is only the constitutionality of the taking of biological samples and the summons to undergo such procedure in accordance with Section 65(1) of the Police Act. On the contrary, the subject of consideration in the context of this incidence check is not the constitutionality of the conditions for the destruction of personal data obtained by sampling, i.e. the setting of these conditions in Section 65(5) of the same Act, since the destruction of these data can only occur subsequently, after the taking and subsequent processing of the sample, i.e. not at the same time as the sampling itself or the summons thereto. Therefore, the contested Section 65(5) of the Police Act is not a provision of law that “should be applied in the resolution of a matter” within the meaning of Article 95(2) of the Constitution of the Czech Republic, in other words, the movant is not actively entitled to file a motion to repeal this provision and the Constitutional Court had no choice but to reject the motion in this part.
Therefore, the Constitutional Court could only substantively examine the motion to repeal Section 65(1) of the Police Act, in the words “and to take biological samples enabling information on genetic makeup to be obtained”, and it concluded that the motion was not justified.
The Constitutional Court notes that the procedure of the Police, when acting as an administrative authority (and not as a body in charge of criminal proceedings), may be reviewed in the administrative court system as regards the statutory requirements and the justification for the need to summon the person to perform identification acts in a particular case, in terms of the proportionality of the potential interference with the summoned person’s rights to his or her inviolability and to informational self-determination, guaranteed by Article 7(1) and Article 10(3) of the Charter of Fundamental Rights and Freedoms.
According to the Constitutional Court, the mere taking of biological samples in a non-invasive manner, notwithstanding the reasonable enforceability of its sufferance, generally passes the proportionality test, as it does not interfere with the physical integrity and does not jeopardise the health or dignity of the person concerned, insofar as it is justified by the legitimate interest in protecting the society from criminal activity, also justified by Article 8(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and it is not contrary to the Nemo Tenetur Principle (i.e. “no man has to accuse himself”), which does not provide absolute protection against such interference.
Although one can understand the efforts to use identification genetics based on the taking of biological samples, especially in criminalistics or police practice, it is necessary to approach this issue with caution and with the utmost respect for the constitutionally guaranteed fundamental rights of the individual. At the same time, the Constitutional Court acknowledges that these powers may be abused or overused by the Police in individual cases. From this perspective, the rather brief legal regulation contained in the Police Act, which is only supplemented by (non-public) internal instructions of the President of the Police, does not seem ideal. However, the Constitutional Court does not intend to interfere in any way in the area reserved for legislative power.
The Constitutional Court adds that if the motion to repeal Section 65(1) of the Police Act in fact only objects to the scope of application of point (a) of this provision, this is not the most appropriate case for intervention by the Constitutional Court. The physical taking of biological samples itself can be seen neither as a violation of the fundamental right to inviolability of the person in accordance with Article 7(1) nor as an interference with the right to privacy under Article 10(2) and (3) of the Charter of Fundamental Rights and Freedoms; at the same time, there is no unconstitutionality in the incompleteness or insufficiency or excessive generality of the legal regulation.
Although the EU or international treaty regulation of co-operation in the use of identification genetics in criminal or police practice is of a framework, not of a harmonising or unifying nature, and the final determination of the rules for the actual 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 parties to the treaty for automated comparison of DNA profiles, efficient and rapid exchange and sharing of information for the purposes of conducting effective criminal investigations or carrying out operational search activities, through its requirements for parametric comparability (compatibility) of such data, leaves no room for national specificities of any State. Therefore, any intervention in the current legislation would also affect the international obligations of the Czech Republic and their reciprocal fulfilment and would have to be justified from this point of view.
Dissenting opinions were filed by Justices Josef Fiala, Jan Filip, Vladimír Sládeček, Radovan Suchánek, Pavel Šámal and Vojtěch Šimíček.