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Selected Problems of Czech Criminal Law
Introduction – Criminal Liability in the Czech Criminal Law

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Criminal Law’s Reform after 1989
n The reform of criminal law started in 1990, after the „Velvet Revolution“ in November 1989
n2 phases of reform
nphase 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
nphase of recodification – the concept of three  penal laws (codes)  was introduced
n
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nAbolition of death penalty 1990 + introduction of new conception of exceptional punishment:
imprisonment over 15 to 25 years and life imprisonment
nAbolition of 33 criminal offences based on the ruling ideology of the Communist party (for example
Leaving of the Republic, Dishonouring of the Socialistic State, Subversion of Republic, the
extended protection of socialistic property…)
nA new conception of criminal liability in the case or the culpable insanity
nIntroduction 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, ….
nThe idea of alternative punishment: introduction of probation, community service, diversions in
the criminal proceedings (conditional suspension of the criminal prosecution, settlement)
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The Most Important Changes

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Recodification
nThe concept of three criminal laws
-Criminal Code (or “CC”) – since January 1, 2010
-
-Juvenile Justice Act – since January 1, 2004
n
-Criminal Liability of Legal Persons Act – since January  1, 2012.
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Juvenile Justice Act
nThis act gives coherent legal regulation of criminal liability and punishment of juveniles
(persons between 15 and 18 years of age) together with the legal regulation of criminal proceedings
in cases of juvenile. It is related to the matters of minors (children under 15), as well.
nThis law extended the application of the new principle of restorative justice into Czech criminal
law
nThe system of sanctions for juveniles is based on the united system of measures, which are divided
into educational, protective and criminal measures. The purpose of these measures is to create
conditions for sociable and personal development of the juvenile with respect of his/her mental and
moral level, personal character, family background and protection from the negative effects and
prevention from committing other transgressions.
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General Characteristics of the New CC
nIntroduction of a formal concept of a criminal act
nThe categorisation of offences based on bipartition
nmisdemeanour and felony
nExtension of the system of sanctions (new alternative punishments – house arrest, prohibition of
entry to sporting, cultural and other social events,  protective detention)
nStricter punishment in cases of the particularly  serious felonies and plural criminal activity
nNew systematic arrangement of the Special Part of Criminal Code following human rights attitude
nIntroduction of new offences, for example new type of a murder, manslaughter, harm to health out
of excusable motives,…
n
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nNullum 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)
nProhibition of retroactivity to the detriment of the perpetrator
nProhibition of analogical interpretation to the detriment of the perpetrator
nProhibition of bylaws as a source of criminal law
n
n
n
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The Principle of Legality

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Criminal Act in the CC
nAccording 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.
nThis definition is supposed to expresses a formal concept of the criminal act.
n
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The Bipartition of Criminal Acts
nCriminal acts are divided into misdemeanours and felonies.
nMisdemeanours shall be all negligent offences and these intentional offences with a maximal term
of imprisonment not exceeding five years.
nFelonies shall be all offences which shall not be considered an offences.
nParticularly serious felonies – felonies with a maximal term of imprisonment of at least 10 years
of imprisonment
nparticularly serious felonies are a subcategory of felonies, not a separate category
nJuvenile Justice Act knows only one category - transgression
n
n
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nAccording  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.
nAccording the Juvenile Justice Act, an act whose degree of danger to society is small shall not be
considered a criminal act…..
nThe degree of danger to the society shall be 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.
n
n
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Criminal Act in the Former CC

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The Ultima Ratio Principle in the CC
nSection 12 para 2
n   “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
nAt first problematic reception by the praxis
nsocial harm = social danger vs. strict formal approach
nDisharmony even at the Supreme Court
nUnifying opinion of its criminal division
nultima ratio as a principle of legislation
nultima ratio as a corrective of interpretation
ndirect application of the principle
nthe individual case does not reach even the lower boarder of criminality
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Recent development
nControversial finding of the Constitutional Court (I. ÚS 3080/2016)
nsquatting in the homestead “Cibulka”
nthe 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
nthe 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
nthe 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
n “(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.
n (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.
n (3) Punished with an imprisonment of from six months up to five years shall be anyone who
n a) commits an act according to the par. 1 or 2 as a member of an organised group
n b) causes damage of large proportions by such an act.”
n
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I. ÚS 3080/16
n“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).”
nThis idea contradicts the opinion of the Supreme Court
nShould that mean that the material aspect of a criminal act ought to play the same role as it did
in the former CC?
n
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Body of a criminal act
nCan be defined as a complex of formal elements (characteristics) which has to be accomplished
nObject
nPerpetrator (Subject)
nObjective part (aspect) – actus reus
nSubjective part (aspect)– mens rea
n
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Object
nInterests, relations and values protected by criminal law
nLife, health, freedom, property, family, humanity, public order, economics etc.
n
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Perpetrator
nAge - a person who has not reached fifteen years of age at the time an offence is committed shall
no be criminal liable (CC, Section 25)
nSanity – 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)
n+ sufficient level of intellectual and moral development by juveniles (does not apply on adults)
n
nSpecial character or position of a perpetrator
n
n
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Culpable Insanity
nDrunkenness: insanity caused by application of addictive substance + committing an act otherwise
classified as offence
nActio libera in causa dolosa: insanity caused with intention of committing an offence
nActio 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
n
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Objective Part
nActing – act of commission or act of omission
nConsequence - violation or endangering of an interest protected
nCausality – causal link between the acting and the consequence (acting as a condition sine qua non
of the consequence)
n
nManner in which the offence was committed, the place and time of committing
n
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Subjective Part
nCulpability
nSec. 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”
n
nMotive – what has driven the perpetrator
nGoal – what he or she wanted to achieve
nIntention – what was the perpetrator’s general project (e. g. when he/she commits a criminal act
through multiple attacks)
n
n
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Intent
nDirect intent – the perpetrator was aware that he (she) could  violate or endanger an interest
protected  by the Criminal Code and wanted to cause such violation or endangerment.
nIndirect intent – the perpetrator was aware that he(she) could to violate or endanger an interest
protected by the Criminal Code and, if he (she) caused such violation or endangering, he (she)
agreed with its result
n
nForethought – even a brief plan shortly before an act
nPrevious consideration – more sophisticated premeditation
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Negligence
nWilful negligence – the perpetrator knew that he (she) could violate or endanger an interest
protected by the Criminal Code, but without adequate reasons he  (she) believed he (she) would not
cause such violation or endangering.
n Non-wilful negligence – the perpetrator did not know that his (her) acting could violate or
endanger an interest protected by the Criminal Code, although, with respect to the circumstances
and his (her) personal situation, he (she) should and could have known
n
nGross negligence – shows especial ruthlessness
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Other Forms of Criminal Acts
nAccording to Section 111 criminal act means also preparation for a criminal act, attempted offence
(inchoate offences), organisation, abetment and assistance (complicity).
nExtension of criminal liability
nit stems from a committed (completed) offence, i. e. from the fulfilment of all elements of the
body of an offence
nsome of these elements are missing in respect to inchoate offences and complicity
n
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Inchoate Offences
nAttempt - § 21 CC
nintentional offences only
nthe perpetrator started to fulfil the body of a particular offence, but hasn’t finished yet
nthe perpetrator has removed the last obstacle to fulfill the body of a particular offence
nthere is nothing that prevents the perpetrator from committing the offence
nPreparation - § 20 CC
nonly particularly serious felonies where the CC explicitly states so
nBoth attempt and preparation are punished in principle as committed offences
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Complicity – sec. 24 of the CC
nOrganization
norchestrating or managing of the committing of an offence
nAbetment
ninstilling the idea of committing an offence in another
nAssistance
nenabling or simplifying of committing an offence by another
nespecially providing instruments, removing obstacles, luring out the victim to the crime scene,
patrolling at the crime scene etc.
nAll forms are punished in principle as committed offences
n
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Circumstances Excluding Illegality
nAn act fulfils the definition of a certain criminal act, but due to these circumstances cannot be
deemed as criminal or even illegal in general
nExtreme emergency
naverting an imminent or prevailing danger to an interest protected by a criminal statute
nsubsidiarity + lesser than equal consequences
nNecessary defence
naverting an imminent or prevailing danger attack on an interest protected by a criminal statute
nno subsidiarity, defence must not be clearly obviously disproportional to the attack
nof self, another person or even of an object
n
n
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Circumstances Excluding Illegality
nConsent of the victim
nonly regarding the interests at the victim’s full disposal
ndoes not apply to physical integrity (except for medical intervention)
nmust be freely given, prior or at least along with the activity, can be presumed
nAcceptable risk
nharming 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
n
n
n
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Circumstances Excluding Illegality
nLegal use of a weapon
nin accordance with another statutes (policemen, soldiers etc.)
nOther circumstances not provided by the CC
ne.g. exercise of rights and duties, sport activities conducted according to the rules, exercise of
a binding command etc.
n
n
n
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Criminal Liability of Legal Persons
nQuite a new idea in the Czech Republic
nhistorically the Czech criminal law followed the doctrine Sociates deliquere non potest, pressure
from the EU and international community instigated a change
n§ 6 of Criminal Liability of Legal Persons Act (hereinafter „CLLP“)
nlist of legal persons incapable of committing offences
nthe state, local government units in exercise of public powers + foreign states and international
organizations
notherwise no exceptions (both private and public entities)
n§ 7 of CLLP
nexhaustive list of offences that cannot be committed by a legal person (e.g. maslaughter,
infanticide by a mother, bigamy etc.)
n
n
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How can a legal person commit a crime?
nAlways through a conduct of another person (§ 8/1 CLLP)
nCould be another legal person, but at the end of the chain there always ultimately is a natural
person
nstatutory 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)
nemployee 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)
n
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Accountability Principle
nQuite strict
nin principle, it is sufficient when some of aforementioned persons commits an offence on behalf of
a legal entity or in the course of its activities
nthe criminal liabilities of this person and of the legal entity are independent and separable
nConditions for exclusion of criminal liability
nthe 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
neffective remorse (§ 11 CLLP) – some offences are excluded
n
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Other Modifications under CLLP
nSuccession of criminal liability (§ 10 CLLP)
nprevention from disposing of „toxic“ components to one successor
nthe criminal liability follows all successors (none can escape it)
nwhen deciding the punishment, the court takes into account the rate to which each of the successor
benefited pro
nDifferent list of punishments
nModification of the scope of the act
n
n
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Thank you for your attention!
nNow is a good time to ask any questions that we haven’t dealt with so far.
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