CYIL vol. 9 (2018)

JIŘÍ MULÁK CYIL 9 ȍ2018Ȏ contribute to one’s own accusation has deep historical foundation, 58 nevertheless its reflecting on the part of the law enforcement authorities has undergone a relatively long and dynamical genesis, at both national and international levels, especially in relation to the forming of its particular content and specific manifestations, under the influence of the decision making activities of the European Court of Human Rights. According to Musil, the existing concept is expressed in the most precise way in the Resolution of the Fifteenth International Congress of Penal Law, i.e. that “Nobody is obliged to actively contribute, whether directly or indirectly, to one’s own conviction.” 59 Although the meaning of the nemo tenetur principle for justice in a criminal trial is indubitable in the decision making practice, it cannot be considered as open-ended, because as stated by Herczeg, its application “should not provide the person charged (the suspected person) with absolute protection in the meaning that the person charged (the suspected person) would not be obliged to take part in all the investigation tasks or at all.” 60 In other words, the extensive interpretation of this principle could lead to the paralysing of the effective abatement of crime (Section 1 of the Rules of Criminal Procedure). At present it would be possible to find the grounds of the nemo tenetur principle at both the international level and in legal regulations of individual countries. From the point of view of the ECHR it is, in this context, without any major importance, that the above mentioned principle is not embedded expressis verba and its deriving, as a part of the rights to a fair trial within the meaning of Article 6 of the Convention, was only brought by the decision making practice of the European Court of Human Rights. 61 At the international level it is possible to mention the International Covenant on Civil and Political Rights, whose Art. 14(3)(g) specifies that “ the person charged … must not be compelled to testify against himself or to confess guilt ”. At the national level, the partial manifestations of the nemo tenetur principle are embedded in Art. 37(1) and Art. 40(4) of the Charter of Fundamental Rights and Freedoms, which further explain applicable provisions of the Rules of Criminal Procedure (Section 33 of the Rules of Criminal Procedure, Section 92 of the Rules of Criminal Procedure). In the decision making practice of the European Court of Human Rights, partial manifestations of the above mentioned principle were gradually formulated, which are the right of silence, the right not to be compelled to provide statements and the right not to contribute to one’s own charge with his active conduct. All the three manifestations are mapped in a relatively detailed way in the decision making practice of the European Court of Human Rights, as well as in the practice of the Constitutional Court of the Czech Republic. 62 58 HOLLÄNDER, Pavel. Zrod a současnost principu nemo tenetur se ipsum prodere (hypostáze jednoho základního práva). (“The beginning and the present principle of nemo tenetur is ipsum prodere (the hypostasis of one fundamental right)”) Právník , 2017, no. 2, p. 89-113 59 MUSIL, Jan. Zákaz donucování k sebeobviňování (nemo tenetur se ipsum accusare). (“Prohibition of coercion (nemo tenetur se ipsum accusare)”). Kriminalistika , 2009, no. 4. 60 HERCZEG, Jiří. Právo na obhajobu a zásada nemo tenetur v řízení proti právnickým osobám. (“The right of defense and the principle of non-tenetur in proceedings against legal persons”). In: JELÍNEK, J. et al. Trestní odpovědnost právnických osob – pět let poté. (“Criminal liability of legal persons – five years later”). Prague: Leges, 2017, p. 155-160 61 Decision of the European Court of Human Rights in the case Funke v. France , application no. 10828/84, of 25 February 1993. 62 KMEC, Jiří, KOSAŘ, David, KRATOCHVÍL, Jan, BOBEK, Michal. Evropská úmluva o lidských právech. Komentář. (“European Convention on Human Rights. Commentary”). Prague: C. H. Beck, 2012, p. 765 et seq.

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