Selected Problems of Czech Criminal Law
Introduction – Criminal Liability in the Czech Criminal Law
27. 2. 2018

Criminal Law’s Reform after 1989
§
§The reform of criminal law started in 1990, after the „Velvet Revolution“ in November 1989
§2 phases of reform
§phase of amendments – numerous amendments to Criminal Code a Code of Criminal Procedure reflecting
the democratic and social changes and also the fact that Czech Republic became a Member State of EU
in 2004 have been accepted since 1990
§phase of recodification – the concept of three  penal laws (codes)  was introduced
§
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§
§Abolition of death penalty 1990 + introduction of new conception of exceptional punishment:
§imprisonment over 15 to 25 years and life imprisonment
§Abolition of 33 criminal offences based on the ruling ideology of the Communist party
§Leaving of the Republic, Dishonouring of the Socialistic State, Subversion of Republic, the
extended protection of socialistic property…)
§A new conception of criminal liability in the case or the culpable insanity
§
The Most Important Changes
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§
§Introduction of new criminal offences responding new social phenomena a changes
§especially in the area of economic crimes, for example Insider Trading, new forms of fraud, crimes
connected with public tenders, ….
§Promoting the idea of alternative punishment and restorative justice
§introduction of probation, community service, diversions in the criminal proceedings (conditional
suspension of the criminal prosecution, settlement)
The Most Important Changes
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Recodification
§
§The concept of three criminal laws
§
§Criminal Code (or “CC”) – since January 1, 2010
§
§Juvenile Justice Act – since January 1, 2004
§
§Criminal Liability of Legal Persons Act – since January  1, 2012.
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Juvenile Justice Act
§
§This act gives coherent legal regulation of criminal liability and punishment of juveniles
together with the legal regulation of criminal proceedings in cases of juvenile and also deals with
matters of minors
§juveniles – 15-18; minors – under 15
§This law extended the application of the new principle of restorative justice into Czech criminal
law
§The system of sanctions for juveniles is based on the united system of measures
§educational, protective and criminal measures
§purpose is to create conditions for sociable and personal development of the juvenile, protection
from the negative effects and prevention from committing other transgressions.
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General Characteristics of the New CC
§
§Introduction of a formal concept of a criminal act
§The categorisation of offences based on bipartition
§misdemeanour and felony
§Extension of the system of sanctions
§new alternative punishments – house arrest, prohibition of entry to sporting, cultural and other
social events,  protective detention)
§Stricter punishment in cases of the particularly  serious felonies and plural criminal activity
§New systematic arrangement of the Special Part of Criminal Code following human rights attitude
§Introduction of new offences
§for example new type of a murder, manslaughter, harm to health out of excusable motives,…
§
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§
§Nullum crimen, nulla poena sine lege – „only the law shall determine which acts constitute an
offence and what penalties or other detriments to rights or property  may be imposed on them“
(Charter of Fundamental Rights and Freedoms, Article 39)
§Prohibition of retroactivity to the detriment of the perpetrator
§Prohibition of analogical interpretation to the detriment of the perpetrator
§Prohibition of bylaws as a source of criminal law
§
§
§
The Principle of Legality
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Criminal Act in the CC
§
§According to Section  13 para 1 of the NCC,  an offence shall be an unlawful act which is
described as criminal in a criminal statute and the features of which are laid down in such a
statute.
§This definition is supposed to expresses a formal concept of the criminal act.
§
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The Bipartition of Criminal Acts
§
§Criminal acts are divided into misdemeanours and felonies.
§Misdemeanours shall be all negligent offences and these intentional offences with a maximal term
of imprisonment not exceeding five years.
§Felonies shall be all offences which shall not be considered an offences.
§Particularly serious felonies – felonies with a maximal term of imprisonment of at least 10 years
of imprisonment
§particularly serious felonies are a subcategory of felonies, not a separate category
§Juvenile Justice Act knows only one category - transgression
§
§
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§
§According  to Section 3 para 1 of the former Criminal Code, a criminal act  shall be an act which
is dangerous to the society  and the features of which laid down in this Code.
§According to Section 3 para 2, an act whose degree of danger to society is negligible shall not be
considered a criminal act, even though it may otherwise have elements of a criminal act.
§The degree of danger to the society was determined  in particular by the significance of the
protected interests affected by such an act, the manner in which the act is committed and its
consequences, the circumstances under which the act is committed, the person of the perpetrator and
the degree of his culpability and motives.
§According the Juvenile Justice Act, an act whose degree of danger to society is small shall not be
considered a criminal act…..
§
§
Criminal Act in the Former CC
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The Ultima Ratio Principle in the CC
§
§Section 12 para 2
§   “The criminal liability and its legal consequences may be only applied in socially harmful
cases if application of liability under another legal regulation is not sufficient.”
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The use of the ultima ratio principle
§
§At first problematic reception by the praxis
§social harm = social danger vs. strict formal approach
§Disharmony even at the Supreme Court
§Unifying opinion of its criminal division
§ultima ratio as a principle of legislation
§ultima ratio as a corrective of interpretation
§direct application of the principle
•the individual case does not reach even the lower boarder of criminality
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Recent development
§
§Controversial finding of the Constitutional Court (I. ÚS 3080/2016) - squatting in the homestead
“Cibulka”
§the squatters had an written agreement with the owner at first, then he cancelled it because of
the breach of the conditions, so a notice period of three months started
§the squatters disagreed and tried to negotiate another deal with the owner during the notice
period (they wanted a new place to stay or a longer period to move out etc.), the negotiations
allegedly continued even after the expiration of the notice period
§the owner refused and submitted a criminal notice due to suspicion of a crime under § 208 CC
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§ 208 - Unlawful interference with another’s rights to a house, flat or non-residential space
§“(1) Who in a breach of law occupies or uses another person’s house, flat or a non-residential
space, will be punished with up to two years of imprisonment or with a financial penalty.
§(2) The same penalty will be imposed on anyone who in a breach of law obstructs the use of these
premises by an authorised person.
§(3) Punished with an imprisonment of from six months up to five years shall be anyone who
§ a) commits an act according to the par. 1 or 2 as a member of an organised group
§ b) causes damage of large proportions by such an act.”
§
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I. ÚS 3080/16
§
§“The CC basically preserved the formal-material concept of the criminal act. The solution
contained in the CC is based on a combination of a formal term of a criminal act (sec. 13 par. 1)
and a material corrective of the scope of the criminal lawlessness through the subsidiarity of
criminal repression (sec. 12 par. 2, sec. 39 par. 2).”
§This idea contradicts the opinion of the Supreme Court
§Should that mean that the material aspect of a criminal act ought to play the same role as it did
in the former CC?
§
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Body of a criminal act
§
§Can be defined as a complex of formal elements (characteristics) which has to be fulfilled in
order to conclude that a criminal act has been committed
§Object
§Perpetrator (Subject)
§Objective part (aspect) – actus reus
§Subjective part (aspect)– mens rea
§
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Object
§
§Interests, relations and values protected by criminal law
§General – general interest on inhibition of criminality
§Generic – legitimate interest of individuals, society and state
§Group – e.g. freedom (personal, of movement, of religion)
§Class – e. g. property, life, health
§Individual (e.g. property entrusted to another, property one has on him/her)
§individual object is an element of each specific body of a crime
§
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Perpetrator
§
§Age
§a person who has not completed fifteenth year of age at the time an offence is committed shall no
be criminal liable (CC, Section 25)
§Sanity
§a person who was not able, due to his mental disorder, to recognize the illegality of his acting
or to control it, shall not be criminally liable for his act (CC, Section 26)
§+ sufficient level of intellectual and moral development by juveniles
§(does not apply on adults)
§
§Special attribute, position or relation of a perpetrator
§special attribute – public official, citizen of the Czech Republic etc.
§special relation – debtor of the injured person, mother of the newborn
§
§
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Culpable Insanity
§
§Drunkenness: insanity caused by application of addictive substance + committing an act otherwise
classified as offence
§Actio libera in causa dolosa: insanity brought upon self with the intention of committing an
offence in the state of insanitz
§Actio libera in causa culposa: committing an offence in the state of insanity which the
perpetrator has voluntary entered while knowing or should and could having known the risk of
committing an offence in this state
§
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Objective Part
§
§Acting
§act of commission or act of omission
§omission – where the perpetrator had a legally relevant obligation to act
§Consequence
§violation or endangerment of an interest protected
§Causality
§causal link between the acting and the consequence (acting as a condition sine qua non of the
consequence)
§
§Manner in which the offence was committed, place or time of committing, effect of the offence
§
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Subjective Part
§
§Culpability
§intent or negligence
§Sec. 13 par. 2 of the CC “The intention is required as a regular condition of punishability,
unless the Criminal Code expressly provides that  the negligence is sufficient for committing a
crime.”
§
§Motive – what has driven the perpetrator
§Goal – what he or she wanted to achieve
§Intention – what was the perpetrator’s general design (e. g. when he/she commits a criminal act
through multiple attacks)
§
§
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Intent
§
§Direct intent
§the perpetrator is aware that he (she) could  violate or endanger an interest  protected  by the
Criminal Code and wants to it
§Indirect intent
§the perpetrator is aware that he(she) could violate or endanger an interest protected by the
Criminal Code and he or she is at peace with the possibility such a violation or endanger could
emerge
§Forethought
§even a brief plan shortly before an act
§Previous consideration
§more sophisticated premeditation
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Negligence
§
§Wilful negligence
§the perpetrator knows that he (she) could violate or endanger an interest protected by the
Criminal Code, but without adequate reasons he (she) believes he (she) won’t cause it
§ Non-wilful negligence
§the perpetrator does not know that his (her) acting can violate or endanger an interest protected
by the Criminal Code, although, with respect to the circumstances and his (her) personal situation,
he (she) should know and is able to know so
§
§Gross negligence
§negligence that shows especial ruthlessness towards the protected interest
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Other Forms of Criminal Acts
§
§According to Section 111 criminal act means also preparation for a criminal act, attempted offence
(inchoate offences), organisation, abetment and assistance (complicity).
§Extension of criminal liability
§it stems from a committed (completed) offence, i. e. from the fulfilment of all elements of the
body of an offence
§some of these elements are missing in respect to inchoate offences and complicity
§
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Inchoate Offences
§
§Attempt - § 21 CC
§intentional offences only
§the perpetrator started to fulfil the body of a particular offence, but hasn’t finished yet
§the perpetrator has removed the last obstacle to fulfill the body of a particular offence
§there is nothing that prevents the perpetrator from committing the offence
§Preparation - § 20 CC
§only particularly serious felonies where the CC explicitly states so
§Both attempt and preparation are punished in principle as committed offences
§specifics of punishment (e. g. incapable attempt)
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Complicity – sec. 24 of the CC
§
§Organization
§orchestrating or managing of the committing of an offence
§Abetment
§instilling the idea of committing an offence in another
§Assistance
§enabling or simplifying of committing an offence by another
§especially providing instruments, removing obstacles, luring out the victim to the crime scene,
patrolling at the crime scene etc.
§Accessory principle vs. isolation principle
§So-called seeming complicity
§the act on which the accomplice takes part is not criminal itself, only the complicity is
§e. g. taking part on suicide (sec. 144 CC)
§
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Circumstances Excluding Illegality
§
§An act fulfils the definition of a certain criminal act, but due to these circumstances cannot be
deemed as criminal or even illegal in general
§Extreme emergency
§averting an imminent or prevailing danger to an interest protected by a criminal statute
§subsidiarity + lesser than equal consequences
§Necessary defence
§averting an imminent or prevailing danger attack on an interest protected by a criminal statute
§no subsidiarity, defence must not be clearly obviously disproportional to the attack
§of self, another person or even of an object
§
§
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Circumstances Excluding Illegality
§
§Consent of the victim
§only regarding the interests at the victim’s full disposal
§does not apply to physical integrity (except for medical intervention)
§must be freely given, prior or at least along with the activity, can be presumed
§Acceptable risk
§harming or endangering a protected interest while conducting a socially beneficial activity in an
accordance to the up-to-date state of knowledge and available information, if the outcome cannot be
achieved otherwise
§
§
§
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Circumstances Excluding Illegality
§
§Legal use of a weapon
§in accordance with another statutes (policemen, soldiers etc.)
§Other circumstances not provided by the CC
§unclosed list
§exercise of rights and duties
§sport activities conducted according to the rules of the sport
§exercise of a binding command etc.
§
§
§
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Criminal Liability of Legal Persons
§
§Quite a new idea in the Czech Republic
§historically the Czech criminal law followed the doctrine Sociates deliquere non potest, pressure
from the EU and international community instigated a change
§§ 6 of Criminal Liability of Legal Persons Act (hereinafter „CLLP“) –
§list of legal persons incapable of committing offences (the state, local government units in
exercise of public powers + foreign states and international organizations)
§otherwise no exceptions (both private and public entities)
§§ 7 of CLLP
§exhaustive list of offences that cannot be committed by a legal person
§e.g. maslaughter, infanticide by a mother, bigamy etc.)
•
§
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How can a legal person commit a crime?
§
§Always through a conduct of another person (§ 8/1 CLLP)
§Could be another legal person, but at the end of the chain there always ultimately is a natural
person
§statutory body or its member,
§another person in leading position with right to represent the legal entity,
§person exercising managing  or controlling activity,
§person with decisive influence (e.g. head of a holding),
§employee in relation to his work assignment who was ordered or instructed to conduct in a
particular way or who wasn’t prevented from doing so (because of a lack of control and preventive
mechanisms)
§
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Accountability Principle
§Quite strict
§in principle, it is sufficient when some of aforementioned persons commits an offence in favour of
a legal entity or in the course of its activities
§the criminal liabilities of this person and of the legal entity are independent and separable
§Conditions for exclusion of criminal liability
§the legal person must have previously made all the effort to prevent such an offence from
happening which can be fairly required from it (§ 8/5 CLLP) - compliance programs
§effective remorse (§ 11 CLLP) – some offences are excluded
•
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Other Modifications under CLLP
§Succession of criminal liability (§ 10 CLLP)
§prevention from disposing of „toxic“ components to one successor
§the criminal liability follows all successors (none can escape it)
§when deciding the punishment, the court takes into account the rate to which each of the successor
benefited from the criminal act
§Different list of punishments
§stress on types of punishment with economical impact
§Modification of the scope of the act
§to establish the territorial scope of the act it is sufficient when the legal person has its
registered office, enterprise, organizational unit, activities or property on the territory of the
Czech Republic
§
•
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Thank you for your attention!
§
§
§
§JUDr. Jan Provazník, Ph.D.
§Assistant Professor
§Department of Criminal Law
§Office: room no. 226
§Consultation hours: Wednesdays 13:30 - 15:00
§E:mail: jan.provaznik@law.muni.cz
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