Preventive identification, the police don't always have the right to ask for ID

The possibility of identification of a person by the police is generally regulated by the provisions of Section 63 of the Czech Police Act. In everyday life, most people usually present their identity card on request, without inquiring further into the reason or contesting the request. Some even believe that the police can identify anyone, at any time and without any reason at all. However, the opposite is true. Even this process has its clear rules. The Constitutional Court of the Czech Republic, for example, dealt with this process in more detail in its decision under Case No. II.ÚS 1022/21.

Fact situation

In June 2018, the complainant travelled to a multi-day social event called Klimakemp. Upon arrival at the train station in the village where the event was to take place, he was asked to prove his identity by a police patrol at the train station. The complainant submitted to the request and at the same time he asked about the reasons for it. The patrol justified the procedure by referring to the provisions of Section 63(2)(l) of the Police Act. In addition, one of the police officers stated that "it was to ensure the security of public order, safety of persons and property", that he was not obliged to tell the complainant what task the police were performing at that moment, and that the complainant could, if necessary, address his complaint to his superiors. However, the complainant considered that such a procedure was unlawful and therefore brought an action for a declaration that the request for proof of identity was unlawful and for protection against the possible continued unlawful retention of information found concerning his person.

The course of proceedings

The Municipal Court in Prague found the above procedure justified. In particular with regard to the comments of the Ministry of the Interior, which stated that the reason for checking the arrivals was a similar event held a year earlier, during which an unlawful act was committed when some of the participants blocked the mine facilities at the Bílina mine. In addition, the organiser of the event has stated on its website that similar civil disobedience activities will be part of Klimakemp 2018. The Municipal Court assessed that the lawfulness of the police intervention must be assessed primarily in the context of these facts and concluded that the police had properly justified their action by stating the specific provisions of the legal regulation on the basis of which they had carried out the action.

For the same reasons, the Supreme Administrative Court also rejected the complainant's cassation complaint, as it considered the police patrol's procedure justified, especially in view of the potential riskiness of the event.

Illegality of the procedure

According to the Constitutional Court, the above-mentioned procedure of the Police of the Czech Republic infringed not only the complainant's right to privacy "the request for proof of identity thus generally constitutes an infringement of the right to privacy and the right to informational self-determination, part of which is the possibility not to be followed by anyone, especially by a representative of the State, not to be the object of gathering information about one's life, to live in secrecy and unobserved[1]", but also the right to assembly. The Constitutional Court concluded that if the invitation is made in the context of participation in a peaceful assembly, the person concerned may feel that he or she is discouraged from participating in the assembly, e.g. for fear of having his or her name entered in some form of registry and subsequent persecution for expressing anti-State views.

The Constitutional Court recalled that in each individual case it is necessary to examine the specific circumstances of the request, including the situation in which it was made and against which specific person. Section 63(2)(l) of the Police Act cannot be taken as a catch-all clause under which any situation and any request to prove the identity of anyone anywhere can be accommodated.

However, the mere interference with fundamental rights does not make the request unlawful; the interference must always be measured according to the principle of proportionality. The Constitutional Court pointed out in particular that the request was not necessary, as the intended goal could have been achieved by other means, for example, the presence of police officers could in itself have deterred the potential perpetrators.

The right to assembly cannot be deprived of constitutional protection a priori simply because it involves civil disobedience, for example, as in this case, in (conscious) violation of the law. In this case, the intention was to stimulate debate on climate change. The blockade of the mining facilities was therefore a conscious violation of the law, but appealing to the general interest, namely the interest in a favourable environment.

Moreover, the request itself was flawed in that it was not properly reasoned. The statement of reasons must be such that the person whose rights are interfered with can himself assess the legitimacy and admissibility of the interference in each individual case. However, according to the conclusions of that judgment, a mere reference to a statutory provision is far from sufficient, even if that provision is paraphrased. The said provision of the Police Act must be interpreted in such a way as to exclude any arbitrariness on the part of the officers and any abuse of the institution. Specific reasons must therefore be given in each case, e.g. in the case of identification on suspicion of an offence, the suspect must always be told what the offence is supposed to consist of. As the Constitutional Court further stated, the general reference to "the necessity to ensure the protection of the safety of persons and property and public order” cannot be used, since “even such a justification is not capable of refuting any suspicion that the police are using their formal powers against the person identified in an unjustified, i.e., bullying manner. It is only when at least a brief explanation of the nature of the threat to the safety of persons and property or to public order is given that the individual being identified can have confidence in the legitimacy of the police action. The obligation to justify the request for proof of identity is also a tool against possible arbitrariness and capriciousness. If a police officer is unwilling to explain the reasons for his action in an intelligible manner, it suggests that those reasons either do not exist or that disclosure of the real reasons for the challenge would reveal their contradiction with the legal and constitutional requirements[2]”.

Conclusion

This ruling is undoubtedly welcome, as it clearly sets out the limits of the exercise of state power, which must not be exercised arbitrarily. Moreover, the aforementioned ruling is of great relevance especially in the current covid era, when the institution of identification of citizens is used an order of magnitude more often than in previous years.

Author: Tomáš Brůha

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