LEGAL OBSERVERS

( OBČANSKÉ PRÁVNÍ HLÍDKY )

 Legal capacities for participating demonstrators

 This leaflet is published within the framework of the Legal Observers project. Its aim is to inform participants of demonstrations about their legal capacities and about the responsibilities and rights of police officers during interventions against demonstrators in the following two situations:

2. at the police station

At the end of this leaflet is a notice for foreign subjects in regards to the possible problems that they could encounter.

The text in this leaflet is entirely based upon the constitutional and statutory provisions of the legal order of the Czech Republic. Lawfulness is the only criteria which can be used in a ”state governed by law”, in evaluating the behavior of all participants. In regards to a sad reality, where many times these statutory provisions are violated, we must advise everyone who decides to take advantage of their guaranteed constitutional rights and joins a legal protest, to first and foremost take into consideration the safety of all parties involved. In cases where it is realistically possible, politely ask the police officers to observe all the rights which ensue from this leaflet. In critical situations where the law is broken by the police officer, it is best to remember his identification number (on uniform and at the back of the helmet), possibly his appearance and to call as many witnesses as possible. It will later be essential in reviewing the legality of police procedure. If you consider it useful for reasons of successive evaluation of the situation, pass the information noted by you to the Legal Observers.

The most fundamental provision for police procedure is article 2, section 3 of the Constitution. It clearly states that state authority can only be exercised within the limits of the law and in cases and in manners which are stated by the Law. Act No. 283/1991, on the Police of the Czech Republic (“PolAct”) will be used in cases of direct intervention against demonstrators and the imminent restriction of their freedom. Police procedures which are not within the limits of the law and do not comply with the manners and cases there stated will be considered an offence and in cases with a higher degree of intensity even a criminal act.

If you decide to attend an assembly, (the assembly law distinguishes between announced, unannounced and prohibited assemblies; ”unlawful assembly” is not recognised by the Czech legal order!), however this has no influence on your basic civil rights. You are not committing an offence by merely attending a demonstration.

In situations where you are demonstrating and the police suddenly

1.  announce that the assembly is being dismissed

2.  and they summon you to peacefully disperse,

they must notify you of the

•   reasons for the dismissal (existing reasons based upon the law)

•   consequences if you eventually disobey (§ 12 Act No. 84/1990, on the Assembly Law).

In case you ignore the summons, even if it is by remaining chained with a banner in the place – standing or sitting – from which the police officers are ordering you out from, you are committing wilful disobedience of a public official exercising his/her statutory powers and as in other offences (contamination, damaging or unlawfully occupying public areas § 47 section 1, Act No. 200/1990, on Offences) the police officer is authorised and responsible to intervene (§ 7 section 1 of the PolAct).

None the less, any kind of excessive force and limitation of personal freedom is in violation with the legal obligations of a police officer. They must always act with respect, regard and dignity (§ 6 section 1 of the PolAct), and cannot direct any vulgar statements towards you.

However, it is important to point out the existence of § 20 of the PolAct, under which you can be restricted to enter onto specified areas, if it is required to effectively fulfil security as it is stated in the Police Act.

If you find yourself in a position (as stated in example above), where the police decide to intervene against you (whether it is justified or not), the Police Act gives you several rights:

•   about which the police themselves must inform you

–  at the time of direct intervention against you,

–  only in some exceptional cases, it is possible to inform you about your rights after the intervention (§ 6 section 2).

•   you should be able to clearly recognise the intervening police officers identification number (which will be essential for later testimony)

–  six-digit (Example: 006796) below the badge of service at the uniform, on the left side of the chest, and

–  four-character (one letter and three digits – Example: P 149) at the back of the helmet.

To note any of these two numbers should be sufficient for identification of a policeman!

•   you can ask the police to show you their identification badge or their criminal investigation badge (§ 10 section 2).

•   in exceptional cases where the officers verbal declaration about their affiliation is sufficient, you should ask for the officers identification immediately after the circumstances of the intervention against you allow it (§ 10 section 3 of the PolAct).

Coercive measures

If you at any time during the protest behave in a manner that is dangerous to the safety of other people, police officers, other person’s property or breach of the peace (painting on walls, demolition of different kinds of installations, blocking traffic), the law states that

1.  you must always be summoned before the intervention (if you are not directly endangering the lives of others, including police officers), to refrain from unlawful conduct, otherwise coercive measures will be used against you,

2.  coercive measures may be used against you, if you do not refrain from unlawful conduct even after you are summoned to do so (§ 38 section 2). These can be:

–  grabbing, holding, punching and kicking in self-defence, the use of a truncheon, handcuffs

–  fire hoses, explosives, tear gases

–  service dogs, horses

–  a blow with a firearm, a threat to use a firearm, a warning shot (§38 section 1 of the PolAct).

The use of coercive measures depends on the consideration of the police officer, and in cases of unified intervention respectively on the commander of the intervening unit (99% of all direct clampdowns).

•   the use of coercive measures should be relevant to the circumstances of your unlawful conduct and should not cause physical harm (§ 38 section 5 of the PolAct). It is clearly stated above, that in situations where you as a participant of a demonstration do not put up any resistance, the police is obligated by law to avoid the use of excessive force (physical assault, beating, inflicting pain).

•   if you find out that you were injured as a result of the use of coercive measures, you have the right to demand first aid and medical treatment from the police (§ 40 section 1). The commander of each intervening unit has the same responsibility in cases of ”unified intervention” (§ 42 section 2 of the PolAct). You have the right to demand a copy of the medical report from the attending doctor.

•   during intervention, the police officer has the right to restrict your movement by bounding you to a suitable object, only if you are physically assaulting him/her or another person, damaging other people’s property or if you are trying to escape. You can remain bound for a maximum of 2 hours and then you must either be released or placed in a prison cell (§ 16 of the PolAct).

Identification

Another circumstance which can occur during a demonstration is that a police officer will want you to prove your identity, which means given name and surname, date of birth and your permanent or temporary address (§ 13 section 1). This information can be demanded from you only if

–  you are caught committing a crime or an offence

–  you are asked for an ”explanation” (see point 3 below)

–  you match the description of a suspect or a missing person

–  you are in close proximity of a protected object without reason

–  you have a weapon in a public place and there is reasonable suspicion that you will use the weapon in a violent or threatening manner

–  another person has legal interests in finding out your identity (§ 13 section 2, 3 of the PolAct)

A police officer is required to inform you of the reasons for your identification.

AT THE POLICE STATION

You can be brought to a police station and your personal freedom can be limited in cases of:

1.  unwillingness to help or inability to prove your identity (§13 section 5).

Once the police find out your identity (through information given by you), it does not then have the right to take your fingerprints, photograph or to do a body search. Only a doctor or a person of the same sex has the right to do a body search (§ 13 section 7).

2.  situation when you are directly endangering your own life, or the lives or health of other people or property. In this case and in the case of an attempted escape during a demonstration we refer to the Police Act section about ”detention” (§ 14 section 1).

3.  failure to submit “explanation” (§ 12 section 8) and to write a statement concerning this explanation (§ 12 section 1; ask to write a statement as soon as you arrive at the police station), if you can contribute to the explanation of circumstances important for

–  the detection of a criminal act or an offence and its perpetrator

–  the detection of suspects or missing persons and property.

4.  being caught perpetrating an offence (§ 13 section 6 of the PolAct).

•   you have the right to ask for advice in all circumstances (points 1-4)

–  from "a close person" (i.e., as defined by law, either a family member or a person in a similar relationship to you); in case you are detained (point 2), this person can be anyone you choose!,it does not have to be a "close person" (§ 14 section 4)

–  if you are younger then 18, the police must, even without you asking them to do so, immediately notify your legal guardian (§ 14 section 4, § 13 section 6 of the PolAct).

•   you have also the right (the police has an obligation) to demand to write an official statement every time ”you are brought to a police station” (§ 12 section 10, § 13 section 9 and § 14 section 5 of the PolAct).

•   a police officer will find out your personal information

•   he/she must then instruct you about your right not to give a statement (nihil dicit), if it would mean criminal prosecution for a criminal act or an offence (§ 12 section 2 of the Police Act) against you or a ”close person”

•   if you do decide to make a statement, you will be asked to answer their questions

•   pay good attention to the way the statement is written, so that the police officer does not paraphrase your sentences. If the statement does not correspond with your interpretation,

–  ask for the given passages to be corrected, possibly

–  write your suggestion directly into the statement, explaining that you do not agree with a certain sentence and that you wish to have it corrected according to your new statement

–  do not sign it (do this also if you do not agree with the questioning process) and demand that your reasons for not signing be recorded.

Demand a copy of the statement from the questioning.

•   you have the right (article 37 section 2 Charter of Fundamentals Rights and Basic Freedoms) to demand the presence of a lawyer at the questioning, as was decided by the Constitutional Court (ruling II. Constitutional Court No. 98/95). This right cannot be restricted. The police theory of only one phone call is not based upon the Act of Laws.

•   if you don’t speak the language in which a questioning is being conducted, you have from the beginning the right to the services of an interpreter (article 37 section 4 Charter of Fundamentals Rights and Basic Freedoms).

Limitation of personal freedom

If you are not notified about your ”ARREST”, which is a term not used in the Police Act, however it is used in the ”Act of Criminal Procedure”- No. 141/196; within 24 hours of being taken to the police station (see points 1-4 Above), you must be released. You may be arrested only if you are charged with a criminal act and there is an existing reason for your imprisonment, or a fear that you will

–  escape (abroad) or hide

–  obstruct justice

–  continue in criminal activity

The fact that you were charged then changes the total time of limitation of your personal freedom to 48 hours from the time of apprehension. After this time expires you must be

–  released or

–  handed over to a criminal judge who then has another 24 hours to decide about your imprisonment or release.

The total time that your freedom can be limited before a decision to take you into custody is made can reach a maximum of 72 hours.

A body search can only be done by a person of the same sex (§ 83b section 3 of the Act of the Criminal Procedure)! Groundless humiliation (forcing someone to get undressed, performing absurd physical activities) is considered criminal activity.

Your things may be confiscated

1.  if you do not ”voluntarily” surrender your weapon (= anything that can be used in an attack against another person) and all the following conditions are fulfilled

–  the intervention is based upon your aggressive behaviour

–  it is essential for the protection of public peace, lives and health of people or security of property

–  there is danger that you will use the weapon in a violent or threatening manner.

You must be issued a written confirmation about your confiscation (§17 of the PolAct)

2.  prior to being placed in a prison cell. If they are things which you could use to endanger your life or the life of another person; health aids can also be confiscated in cases where there is danger that they could cause psychological or physical injury (§ 27 section 1).

In that case you have the right to

–  write a list of all the things which are confiscated from you before you are placed in a cell

–  to sign it

–  have them returned to you after you are released (§27 section 2 of the PolAct).

Upon being placed in a cell you have the right to

•   be placed in a ”sanitary (§ 29 section 1)” cell, separated from

–  persons of the opposite sex

–  adults, if you are under 18

–  aggressive individuals, if you are not aggressive (§ 28 section 1).

•   receive medical attention, if you are injured or you point out that you are suffering from a serious illness, so that a doctor could asses whether it is appropriate to place you in a cell (§ 28 section 3 of the PolAct).

•   receive food every 6 hours (§ 31). In case you are a vegetarian, you have the right to demand a meatless diet as stated within the framework of the Charter of Fundamental Rights and Freedoms and guaranteed freedom of conscience and religious worship (article 15).

•   you have basically the same rights and responsibilities as the citizens of the Czech Republic, unless it is stated otherwise by Act No. 326/1999 Coll., on Residence of Aliens in the Territory of the Czech Republic (“AlAct”).

•   criminal proceedings can be taken against you. If you commit a criminal act, you may besides other sanctions face expulsion (=deportation).

1.  by official authority, the reason is a reality, that you intentionally endangered public peace or violated a responsibility stipulated by the AlAct. If you are a national of a state into which a visa requirement from the Czech Republic

–  is not required – the police will issue you an ”exit visa” (Section 19 AlAct; it shall be marked in the passport), in which a time limit shall be fixed within which you must leave the territory of the Czech Republic. If you do not travel out of the Czech Republic, you expose yourself to sanctions (offence, institution of legal proceedings on your administrative expulsion). Your immediate deportation over the frontier shall be illegal! Prior to your involuntary expulsion, due legal proceedings must be performed concerning your (point 2). In the case the Czech police would deport you without any administrative proceedings over the frontier, you can claim your rights successively only from abroad - you can appeal thereafter a complaint to the Constitutional Court through a Czech lawyer.

–  is required – the validity of your visa will be revoked.

2.  in the form of administrative expulsion (§ 118 AlAct), if your stay could in any way endanger the safety of the state, public peace or if you refuse to prove your identity. A decision will be rendered concerning the length of time for which you will not be allowed to enter into the Czech Republic (maximum 10 years). You have 5 days to file an appeal.

Detention of foreign subjects

according to § 15 of the PolAct, you can be detained for up to 48 hours if you acted in a way for which administrative expulsion proceedings could be initiated against you. If the police do not release you within this time, it is obligated to hand you over to the Department of foreign and border police. They can then initiate administrative expulsion proceedings against you and if there is a threat that you could endanger the safety of the state, seriously disturb public peace or obstruct the execution of a decision, you can also be detained by the foreign or border police for a maximum of 180 days (§125 AlAct) in special ”facilitiy” designed for this purpose.