Headnotes:
Legal provision enabling DNA profiling of, inter alia, a person accused of or merely suspected of committing a deliberate criminal offence (Article 65(1) of the Police Act) is not unconstitutional. Collection of samples for the purposes of DNA profiling constitutes a lawful interference with the right to respect for private life. However, the challenged legal provision barely complies with the requirement of sufficient exactness and clarity of law.
The mere performance of non-invasive sampling of biological material for the purposes of DNA profiling, such as buccal swab, does not violate the right to the inviolability of the person under Article 7(1) of the Charter nor does it violate the right to privacy under Article 10(2) and (3) of the Charter and Article 8(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Such an interference does not run contrary to the principle nemo tenetur se ipsum accusare (right not to incriminate oneself) either.
Summary:
I. A. M. (hereinafter “plaintiff”) is being prosecuted for a petty crime. In the context of those proceedings, he was summoned by the Police to carry out his identification, namely to record his physical features, take his fingerprints and collect biological samples for the purposes of DNA profiling. The plaintiff brought an administrative action against the summons before the Municipal Court in Prague (hereinafter “applicant” or “Municipal Court”).
The Municipal Court issued an interim measure ordering the Police to refrain from, inter alia, taking plaintiff’s biological samples. Therefore, no samples have been taken so far.
According to the Municipal Court, the collection of plaintiff’s biological samples is not permissible, since he is being prosecuted only for a petty crime which, moreover, is in no way related to criminal activity which can be – at least theoretically – uncovered by using DNA profile of the perpetrator. Moreover, the Municipal Court noted that the legal provisions on the collection and storage of DNA samples are inadequate and overly broad, since they do not specify or explicitly limit the maximum period of storage of DNA profile data. The Article 65(5) of the Police Act only provides that the Police are obliged to destroy the DNA profile data as soon as they are “not needed for the performance of their tasks”.
The Municipal Court thus proposed the annulment of the abovementioned legal provisions by the Constitutional Court. It opined that the contested provisions do not comply with the strict requirements imposed by the case law of the European Court of Human Rights concerning the permissibility of interference with the right to respect for a private life.
II. The Constitutional Court first assessed whether the procedural requirements for filing the application were met. It concluded that it has the power to substantively review only the constitutionality of the provisions on the collection of biological samples and the summons to that collection pursuant to Article 65(1) of the Police Act.
On the other hand, the Constitutional Court is not empowered to review the constitutionality of the provisions on the time limits of storage of DNA profiles data under Article 65(5) of the Police Act. This provision may be applied only after the data has already been gathered and processed; however, no samples have been collected from A. M. yet (in other words, he has not suffered an actual and present injury) and the Municipal Court has not been called to apply Article 65(5) of the Police Act in the proceedings yet. The Constitutional Court thus concluded that the Municipal Court does not have locus standi to challenge the constitutionality of this provision.
The Constitutional Court reviewed the constitutionality of Article 65(1) of the Police Act and came to the conclusion that the application is not unfounded. It therefore dismissed it.
It noted that the administrative courts may review the legality of the steps taken by the Police in the process of summoning the person concerned and collecting biological samples from him or her. The administrative courts may examine whether the Police complied with the requirements laid down by the law and whether the summons to carry out identification measures was justified and proportionate in relation to the person's right to personal integrity and informational self-determination.
According to the Constitutional Court, the mere collection of biological samples – if carried out in a non-invasive manner, for example by buccal swab – generally passes the proportionality test. It noted that the sampling itself does not interfere with the physical integrity and does not endanger the health or dignity of the person concerned. It is moreover follows the legitimate interest of preventing and prosecuting criminal acts. It does not contravene the principle nemo tenetur se ipsum accusare either, because this principle does not provide absolute protection against such an interference. This holds true even though the biological sample may be taken by force in the case of non-cooperation of the person concerned.
The Constitutional Court concluded that the mere act of physical collection of biological samples does not violate the right to personal integrity under Article 7(1) of the Charter nor the right to privacy under Article 10(2) and (3) of the Charter. Nor are the contested provisions unconstitutional due to their alleged incompleteness, insufficiency and lack of clarity and exactness.
The Constitutional Court further stated that although it recognizes the utility of the DNA profiling in policing and administration of justice in general, this tool must be used with caution and utmost respect for fundamental rights of individuals. The Constitutional Court is aware that there may be individual cases of abuse or misuse of these powers by the Police. From this perspective, the rather brief and unspecific legal provisions of the Police Act, which are only supplemented by (non-public) internal instructions of the Police, does not seem ideal. However, the Constitutional Court is aware that this issue should be primarily regulated by the Act of the Parliament, not by case law.
Finally, the Constitutional Court added that it had also considered the potential impact of the annulment of the contested provisions in terms of compliance with the international obligations of the Czech Republic in the area of combating cross-border crime. Namely, it noted that annulment of the contested provisions would compromise the ability of the Czech Republic to comply with its international obligations.
III. Justice Jiří Zemánek serves as the Judge-Rapporteur in this case. Justices Josef Fiala, Jan Filip, Vladimír Sládeček, Radovan Suchánek, Pavel Šámal and Vojtěch Šimíček filed their dissenting opinions.