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

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Criminal law reform after 1989
n The reform of criminal law started in 1990, after the „Velvet Revolution“ in November 1989
n2 phases of reform
-phase of amendments – numerous amendments to Penal Code a Code of Penal 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
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
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…)
nthe new conception of criminal liability in the case ot 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 – 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 characteristic of the NCC
nintroduction of a formal concept of a criminal offence (hereinafter „offence“)
nthe binary categorisation of offences
nmisdemeanor and felony
nextention 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)
n
n
n
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The principle of legality

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Criminal Act in the NCC
nAccording to Section  13 para 1 of the NCC,  an offence shall be an unlawful act which is
described as criminal in the Criminal Code and the features of which are laid down in this Code.
nThis definiton expreses formal concept of the criminal act.
n
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The binary categorisation
nOffences are divided into misdemeanors and felonies.
nMisdemeanors 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 previous Criminal Code, a criminal offence  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 offence, even though it may othervise have elements of a criminal offence.
nAccording the Juvenile Justice Act, an act whose degree of danger to society is small shall not be
considered a criminal offence…..
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 previous CC

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The ultima ratio principle in NCC
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 regualation 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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Body of an offence
ncan be defined as a complex of formal elements (characteristics) which has to be accomplish
nobject
nperpetrator
nobjective part (aspect) –actus reus
nsubjective part (aspect)–means rea
n
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Object of an offence
nInterests, relations and values protected by criminal law
nLife, health, freedom, property, family, humanity, public order, economics etc.
n
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A 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 control it, he  shall not be criminally liable for his act (CC, Section 25)
nSpecial character or position of a perpetrator
n
n
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A cupable insanity
nDrunkeness: insanity caused by application of addictive substace + 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: comitting a offence out of negligence consisting in entering into
an insanity.
n
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Objective part
nacting – act of commission or act of omission
nconsequence - violation or endangering of an interest protected
ncausality
n
nManner in which the offence was committed, the place and time of committing
n
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Subjective part
nCulpability
nthe intention is required as a regular condition of punishability, unless the Criminal Code
expressly provides that  the negligence is sufficient for committing a crime
nMotive
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 endagering.
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
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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 Unwilful 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
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Other forms of offences
nAccording to Section 111 offence means also preparation for a criminal act, attempted offence
(inchoate offences), organisation, abetting and assistance (complicity).
nExtension of criminal liability
nit stems from a committed (completed) offence, i. e. from the fulfillment of all elements of the
body of an offence
nsome of these elements are missing in respect to inchoate offences and
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Inchoate offences
nAttempt - § 21 CC
nintentional offences only
nthe perpetrator started to fulfill 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 - § 24 CC
norganizing
norchestratig or managing the committing of an offence
nabetting
ninstilling the idea of committing an offence in another
nassistance
nenabling or simplifying of commiting an offence by another
nespecially providing instuments, removing obstacles, luring out the victim to the crime scene,
patroling at the crime scene etc.
nall forms are punished in principle as committed offences
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 it 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. in
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
n
n
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Accountability principle
nquite strict
nin principle, it is sufficient when some of aforementioned persons committs 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
nsuccession of criminal liability (§ 10 CLLP)
non all of legal successors -> prevention from disposing of „toxic“ components to one successor
ndifferent list of punishments
nmodification of the scope of the act
n
n
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Thank you for your attention!
n Now is a good time to ask any questions.
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