CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE PRINCIPLE OF THE PRESUMPTION OF INNOCENCE IN THE EUROPEAN… The right of silence plays a core role especially in the case of the person, against whom the criminal proceedings are conducted, when the sense of the above mentioned right is not to add the silence to the detriment of such person, i.e. not to assign any evidence value to it, 63 nevertheless in certain cases it is possible to derive, even from the silence of such a person, the penal-law consequences, i.e. that it is possible to assign certain meaning to the silence (at the evidence level). 64 Another important aspect is the right not to be compelled to provide statements , which forbids the use of any methods of forcing or pressure , 65 capable of deforming the free will of the concerned person not to provide statements. 66 The third demonstration of the nemo tenetur principle is the right not to contribute to one’s own accusation through one’s active conduct , which presupposes that the state authorities try to prove the guilt of the accused person without using evidence materials obtained by force or under pressure against the will of the person charged. As it has already been said, from the viewpoint of the nemo tenetur principle it is possible to differentiate two areas of the penal-law acts, one of which being characterised by the activity of the person charged (release of a thing, 67 investigation attempt), to which the person charged must not be compelled under a threat of a sanction, while the other one includes the tasks in which the person charged is only a passive object and to the toleration of which he can be compelled by using legal means, through a disciplinary fine, sometimes even through a physical force (e.g. bodily examination, taking of fingerprints, taking away). Also the decision making practice of the Constitutional Court of the Czech Republic provides a number of conclusions, especially in the case of differentiation of passive toleration and active conduct of a person (within the meaning of the law not to be compelled to provide evidence against oneself through active conduct). 68 The law enforcement authorities, however, must prove, on the basis of their official obligation, all the facts important for the decision, including those testifying to the benefit, regardless of the fact whether the person charged proposed their implementation or not. With regard to the fact that the person charged should be considered as innocent until the time of his final conviction, it is possible to use the means of criminal law against him during the criminal proceedings only in the extent which is absolutely necessary for achievement 63 According to Musil, however, the old evidence rule “who is silent (when he could speak and should have spoken), obviously agrees” is not valid in the Czech criminal proceedings. Cf. MUSIL, J. Zákaz donucování k sebeobviňování (nemo tenetur se ipsum accusare). [“Prohibition of coercion (nemo tenetur se ipsum accusare)”]. Kriminalistika , 2009, no. 4. 64 Decision of the European Court of Human Rights, John Murray v. the United Kingdom, application no. 18731/91, of 8 February 1996. 65 Decision of the European Court of Human Rights, Heaney and McGuinness v. Ireland , application no. 37720/97, of 21 March 2001. 66 Decision of the European Court of Human Rights, Saunders v. the United Kingdom , application no. 19187/91, of 17 December 1996, decision of the European Court of Human Rights Heaney and McGuinness v. Ireland , application no. 37720/97, of 21 March 2001, decision of the European Court of Human Rights, Weh v. Austria, application no. 38544/97, of 8 April 2004. 67 Disciplinary fines were imposed in these cases due to the fact that the claimant refused to issue the cash book as a thing important for criminal proceedings (decision of the Constitutional Court, file ref. no. II. ÚS 118/01) or refused to submit the complete accounting books or individual accounting documents (decision of the Constitutional Court, file ref. no. II. ÚS 255/05, II. ÚS 552/05, III. ÚS 561/04). 68 Opinion of the Constitutional Court, file ref. no. Pl. ÚS-st 30/10, Resolution of the Constitutional Court IV. ÚS 158/13.

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