Adobe Systems Selected Problems of Czech Criminal Law The System of Criminal Sanctions in the Czech Criminal Law Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 The philosophy of criminal sanctions §Classical school – retributivism (just deserts) §punitur, quia peccatum est §Positive school – consequentialism §punitur, ne peccetur 2 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Goals of punishment §Prevention §individual §positive (re-socialisation) §negative (deterrence, elimination) §general §Repression §Satisfaction §Rehabilitation 3 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 The System of Sanctions §Punishments - can be imposed by a criminal court on an offender of an criminal act. §Protective measures – can be imposed by court in criminal or civil proceedings on an offender of an criminal act or an act otherwisse classified as criminal. 4 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Fundamental principles §the principle of legality – nulla poena sine lege – „only the law shall determine what penalties may be imposed on offender of a criminal offence.“ Criminal sanctions shall be imposed only in accordance with the law. § §the principle of humanity – cruel and disproportionate sanctions may not be imposed. The execution of a criminal sanction must not undermine human dignity. § 5 Fundamental principles §the principle of adequacy of punishment – general principles of sentencing guidelines §nature and seriousness of a criminal offence (importance of the protected interest, manner in which act was committed and its consequences, the circumstances, person of the offender, the extent of his/hers fault and his motives) §personal situation of an offender (family, property, situation, health, high age ….) §rights and interests of an injured party (namely compensation of the damage) §passed time and length of criminal proceedings Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 6 Personal situation of the offender - example §Finding of the Constitutional Court file no. II. US 2027/17 §DUI (1,54 ‰), death of driver’s wife and child §District Court – negligent manslaughter, prohibition of driving for 7 years and house arrest §reasoning – remaining little child of the driver would have to be placed in a custody of another person or institution §Regional Court – deprivation of liberty for 4 years §reasoning – District Court’s punishment was too lenient §Constitutional Court – best interest of the child shall be the primary consideration even here – quashed the decision Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 7 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Punishments - Section 52 of CC §a sentence of imprisonment § house arrest § community service § forfeiture of property § a pecuniary penalty § forfeiture of a thing § prohibition to undertake activities § prohibition of residence § prohibition of entering of sport, cultural and other social events § deprivation of titles and awards § deprivation of a military rank § banishment § 8 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Protective Measures – Section 98 of CC §protective medical treatment §protective detention §confiscation of a thing or some other property value §confiscation of a proportion of property §protective custody 9 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Statistics – Sanctions in General §total count of criminal offences „in the system“ 2016 – 107.199 §total count of sentenced people in 2016 – 61.423 §9.485 unconditional imprisonment (cca 15,5 %) §39.251 suspended imprisonment (cca 64 %) §106 house arrests (cca 0,17 %) §7.143 community service (cca 11,6 %) § Sources: https://cslav.justice.cz/InfoData/servlet/FileServlet?tabulka=ccav_dokument_sestavy&sloupec=obsah_d okumentu_pdf&where=id_dokumentu=1265165&typSloupce=pdf&fileName=null 10 Statistics – Imprisonment Sentence 2016 §20.751 convicts serving prison sentence §213 prison population index (Estonia 202,9; Albania 204,8; Georgia 256,3; Azerbaijan 236,3; 222,7 Molodava vs. 58,5 Sweden; 51,4 the Netherlands; 78,4 Germany, 56,7 Finland) §average: 127,2 median 117,1 Sources: https://www.vscr.cz/wp-content/uploads/2018/05/Statistick%C3%A1-ro%C4%8Denka-V%C4%9Bze%C5%88sk%C3%A 9-slu%C5%BEby-%C4%8Cesk%C3%A9-republiky-za-rok-2017.pdf http://wp.unil.ch/space/files/2018/03/SPACE-I-2016-Final-Report-180315.pdf § Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 11 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Sentence of imprisonment §an unconditional sentence of imprisonment §a suspended sentence of imprisonment §a suspended sentence of imprisonment with supervision §exceptional punishment § § 12 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 An unconditional sentence of imprisonment §A maximum term of imprisonment as a regular penalty shall be twenty years. § §A uniform minimum term is not provided. § §The term of imprisonment shall be served in prisons in accordance with another Act – Prison Act. 13 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Exceptional punishment §a sentence of imprisonment of twenty up to thirty years - very high seriousness or - the possibility of reforming the offender is regarded as remote §life imprisonment -extremely high seriousness and -the imposition is required for the effective protection of society or -there is no hope that the offender can be reformed by a prison sentence of twenty up to thirty years 14 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 A suspended sentence of imprisonment §a maximum term of imprisonment of three years §probation period of one to five years §appropriate restrictions and duties §supervision: - a regular personal contact between the offender and probationary officer - cooperation in creating and implementing the probation plan - monitoring adherence to the conditions imposed on the offender § 15 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Conditional Release §After a certain period has been served §2/3 with selected particularly serious felonies §1/2 with particularly serious felonies or if the convict serves imprisonment sentence repeatedly §1/3 felonies §even before – misdemeanors §The convicts proves he/she has been corrected §The convict can be expected to lead an orderly life in the future or the court accepts guarantee over his/hers correction §A parole period of 1-5 years + certain obligations and restrictions § 16 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 House arrest §misdemeanors only §up to two years §obligation to stay home during time defined in the judgment §written promise to follow all conditions is required §if the offender fails to respect all conditions, the court shall commute it to term of imprisonment: 1 day of house arrest = 1 day of imprisonment §two form of control are presupposed - electronic monitoring - control of a probation officer 17 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Community service §misdemeanors only §term of 50 up to 300 hours § offender’s attitude and his health conditions § obligation of the offender to perform work for the public benefit in person, free of charge and in his free time at least within the period of one year §if the offender fails to perform community service order due to his own fault, the court shall commute it either to a house arrest, or to pecuniary penalty or to term of imprisonment §1 hour = 1 day § § § § § 18 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Forfeiture of property §If the offender has been sentenced to an exceptional length of imprisonment or unconditional imprisonment for an especially serious crime by which the offender acquired, or attempted to acquire, a property benefit. §A court may order the forfeiture of all property belonging to a particular offender, or only a part of his property §The forfeited property shall become the property of the State. 19 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Pecuniary penalty §imposed in day rates – from 20 to 730 §A day rate is at least 100 CZK (app. 3,9 EUR) and the most 50.000 CZK (app. 1968 EUR) §specifics for juveniles and legal persons §if the offender profited or attempted to profit by an intentional criminal act §As an alternative punishment (in place of imprisonment) in case of a minor offence § an alternative punishment of imprisonment of up to four years in the event that the pecuniary penalty is not paid by the set deadline § § 20 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Forfeiture of a thing §The court may impose the forfeiture of a thing which a)was used for the commission of a crime, b)was determined for the commission of a crime, c)the offender acquired by his crime, or as a reward for such crime, or d)d) the offender as least partly acquired for another thing pursuant to letter c), unless the value of the thing pursuant to letter c) is negligible in relation to the thing acquired. §The thing has to belong to the offender. §The forfeited thing shall become the property of the State. 21 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Prohibition to undertake activities §for a period of one to ten years §a criminal act committed in connection with such an activity §job or profession or a certain office or activity which requires a special licence or performance of which is regulated by law § 22 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Prohibition of residence §for a period of between one year and ten years §an intentional crime if this is in the interest of the protection of public order, family, health, morality or property in the view of the offender´s way of life and the place where the crime was committed §not possible to prohibit residence in the district where the offender has his permanent home address § appropriate restrictions and duties 23 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Prohibition of entering §of sports, cultural and other social events §up to ten years §an intentional criminal offence committed in connection with such an event §cooperation with probation officer §possibility to order to stay at the Police station during the time of event § § 24 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 §of titles of honours and awards §of a military rank §may be imposed by the court on an offender who has committed an intentional crime with especially condemnable motivation and on whom the court imposes an unconditional sentence of imprisonmet of at least two years §in addition to other punishment if it is required for the sake maintaining discipline and order in the armed forces or the armed corps. §these sentences are subsidiary and may never be imposed as a single punishments. § Deprivation 25 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Banishment §from the territory of the Czech Republic §on a person who is not a citizen of the Czech Republic §if this is required for the safety of the people or property or some other public interest §either for a period of between one and ten years, or for an indefinite time. 26 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Punishments for legal entities §cancellation of the company, §confiscation of property §pecuniary punishment §confiscation of a thing or some other property value §a ban on activities §a ban on performance of public contracts or participation in public tenders §a ban on acceptance of subsidies §the publication of the judgment § § 27 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Pecuniary punishment §the most important sanction for legal entities §principally required by EU Framework Decisions as well as EC Directives §used in all countries that have introduced corporate criminal liability §may be imposed for all criminal offences that a legal entity may commit §imposed in daily rates – from 20 to 730 (the precise number is set according to the nature and seriousness of the criminal offence) §the daily rate is no less than CZK 1,000 (398 EUR)and no more than CZK 2,000,000 (78 709 EUR) - (the precise amount is set with view to the offender’s property) § § 28 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Cancellation of the company §the strictest penalty that can be imposed upon a legal entity §applicable only to legal entities that, while having their registered offices in the Czech Republic, perform such activities that entirely or predominantly consist of committing criminal offences §the purpose of this punishment is to ultimately prevent the legal entity from performing any further activity that consists in the continuous commission of crime § § § 29 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 The publication of the judgement §is a new type of punishment in Czech law §penalty intended exclusively for legal entities §a strong preventive nature of this punishment: it „can be imposed where it is necessary to inform the public of a judgment of conviction, mainly because of the nature and the seriousness of the criminal offence, or where required by the interest of protecting the safety of people, property or society“ §forces the legal entity to publicize, at its own cost, the final and conclusive judgment or some part thereof determined by the judge in some public medium channel determined by the judge § § § 30 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 Protective measures §only two §confiscation of a thing §confiscation of a proportion of property § § § 31 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 Selected Problems of Czech Criminal Law – Criminal Liability in the Czech Criminal Law; 26. II. 2019 32