pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT_en Selected problems of Czech Criminal Law, 11th. Nov. 2015 Selected Aspects of Economic Criminality in the Czech republic Marek FRYSTAK Department of Criminal Law www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Definition of economic criminality nwhat is economic criminality and what crimes may by subordinated under this term? n nstatistics of the Ministry of Justice nonly crimes included in the 6th chapter of specific part of the Criminal Code entitled „economic criminality crimes“ ne.g. tax fraud, counterfeiting and altering money, unlawful business activity n nstatistics of the Police of the Czech republic ncrimes included in the 6th chapter of specific part of the Criminal Code entitled „economic criminality crimes“ nselected crimes includes in the 5th chapter of specific part of the Criminal Code entitled „crimes against property“ ne.g. theft, embezzlement, fraud (insurance, credit, grant) Selected problems of Czech Criminal Law, 11th. Nov. 2015 2 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 ncrimes directed against the economic system and its operation n nall crimes of offenders who are active in the economic life of society n nall crimes occurring in the field of economics n ncrimes that harm or threaten economic life of society n nunlawful acting which was achieved financial benefits at the expense of a particular economic entity n nunlawful acting leading to legitimisation of proceeds of crime n n Selected problems of Czech Criminal Law, 11th. Nov. 2015 3 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 The characteristics and fundamental causes of economic criminality n n nflexibility of economic criminality - ability to adapt to social, political and economic changes n nthe influence of social environment n nthe influence of legal framework n nthe influence of morality n nhigh latency of economic criminality n n Selected problems of Czech Criminal Law, 11th. Nov. 2015 4 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 The influence of social environment n n nbefore 1989 n nthe State was monopoly owner o all property n nall the industrial and agricultural enterprises were state-owned or at least under its strict control n nall land, forests, as well as banks, insurance companies etc. were state property n nin the former Czechoslovakia does not exist almost any private enterprise with the exception of some services n Selected problems of Czech Criminal Law, 11th. Nov. 2015 5 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 nafter 1989 n nin a very short time took place the absolute change in the structure of ownership n nprivatization of state property - the State began to sell its property to everybody who had money to buy it n nproperty restitution - the State returned to the original owner or their inheritors property nationalized or confiscated after 1948 (Communist putsch) n nwhere people took the money, when there was no private enterprise in our country through which they could obtain it n nsome people have large financial resources from illegal business on the black market n n Selected problems of Czech Criminal Law, 11th. Nov. 2015 6 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 nbanks were willing to lend money to anyone for anything n nbanks did not investigate the reality of business plan and did not investigate real value of pledge nI can mention a collection of precious stones which where in the end worthless nit was an public secret that 10% of the loan granted was left in the bank n nafter the society expanded the use of payment cards and Internet banking appears phishing etc. n ncomputer technologies are very cheap and the costs living of youth are increasing n na simple solution is to counterfeit money n n n Selected problems of Czech Criminal Law, 11th. Nov. 2015 7 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 The influence of legal framework nreturn to a market economy should naturally be accompanied by the appropriate criminal and non criminal legal environment. n nchanges in ownership, under which there was a massive transfer of assets, took place so quickly, that the legal regulation was not able to respond it and if yes it was with considerable delay n nlegal regulation from that time lacks the complexity and interconnection and is unclear n nit was created through method of trial and error n nnewly adopted legal regulation was not generally well-elaborated in order to accurately and clearly communicate their intent and purpose n Selected problems of Czech Criminal Law, 11th. Nov. 2015 8 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 The influence of morality n nfor an economic criminality is significant that is not characterized by violence and does not cause defensive reactions of victims who often are not known n nit is often tolerated by society and taken for granted, what belongs to n nbusinessman who is able optimally minimize tax base and trick the State on taxes is considered as successful. n n“Who does not steal robs own family” n ngenerally, everyone stands up against corruption but corruption in healthcare is generally tolerated. n Selected problems of Czech Criminal Law, 11th. Nov. 2015 9 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 The high latency n nthe question is how high that latency is n nthe actual level is only subject of speculation influenced by our knowledge and ideas n Selected problems of Czech Criminal Law, 11th. Nov. 2015 10 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Statistics of Economic Criminality n naverage percentage of economic criminality on total discovered criminality is about 10% n nat first glance, it seems that economic criminality is really not so important and does not mean any danger to society. n naverage percentage caused by economic criminality on damage caused by total discovered criminality is about 50% n nat second glance it is clear that economic criminality is very important part of total criminality and represents a great threat to society n n Selected problems of Czech Criminal Law, 11th. Nov. 2015 11 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Statistics of the Police of the Czech republic Discovered criminality 2009 2010 2011 2012 2013 2014 Total criminality 336 446 357 391 343 799 332 829 313 387 317 177 Other criminality 263 371 268 301 257 763 249 975 249 038 252 957 Economic criminality 39 473 37 981 32 474 29 774 28 371 28 216 Percentage of economic criminality on total discovered criminality 11,73 10,62 9,44 8,94 9,05 8,89 Selected problems of Czech Criminal Law, 11th. Nov. 2015 12 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 exchange rate: 28,- CZK is about 1,- EUR Damage in thousands of CZK 2009 2010 2011 2012 2013 2014 Total criminality 24 262 154 22 782 465 31 625 891 26 012 527 24 103 863 23 951 262 Other criminality 10 061 383 11 261 743 10 855 658 9 650 912 9 304 996 9 527 148 Economic criminality 13 712 076 10 789 614 19 473 591 15 696 310 14 153 834 13 899 515 Percentage of damage caused by economic criminality on damage caused by total discovered criminality 56,51 47,32 61, 57 60, 34 58, 72 58.02 Selected problems of Czech Criminal Law, 11th. Nov. 2015 13 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Criminal Code Aspects of Economic Criminality n n nthe crime is considered as an act which formal elements are mentioned in Criminal Code (body of crime) + it has to be harmful to society n nharmfulness of an act to society, is material corrective of the formal concept n nthe manner in which the act is committed and its consequences nthe circumstances under which the act is committed nthe person of the offender nthe degree of his culpability and motives n nbody of crime is complex of formal elements which has to be accomplish - basic and qualified n Selected problems of Czech Criminal Law, 11th. Nov. 2015 14 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Offender of Economic Criminality n nthe minimum age of criminal liability is defined as 15 years of age n na person has criminal liability the day after his 15th birthday npractical reason for it n npersons between 15 and 18 years of age are regarded as juveniles nrelative/partial criminal liability – the intellectual and moral development nspecial law regulation related to juveniles is the Act on liability of the youth for wrongful acts and on justice matters of the youth n nthe day after 18th birthday person has his absolute/full criminal liability n nin economic criminality we have usually offender with absolute/full criminal liability n n n Selected problems of Czech Criminal Law, 11th. Nov. 2015 15 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Acting n noutward manifestation of the offenders will n nact of commision – the will is manifested by physical performance n ne.g. I give my tax return but I fill it in false information and thats why I cut (curtail) tax n nact of omission – the will is manifested by omittance n ne.g. I am required to file a tax return and I do not do it Selected problems of Czech Criminal Law, 11th. Nov. 2015 16 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n nconsequence – the violation or endangering of an interest protected by the Criminal Code- in economic criminality its a damage and its amount n nnot insignificant - at least 5.000,- CZK n nnot small - at least 25.000,- CZK n nsignificant – at least 50.000,- CZK n nsubstantial - at least 500.000,-CZK n nextensive - at least 5.000.000,- CZK n Selected problems of Czech Criminal Law, 11th. Nov. 2015 17 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n ncausality n nthere is no criminal liability without relation between the offenders acting and the consequence n nthe act of a offender is a cause of a consequence if this does not occur without the act of it the consequence is substantially different n nthere is causality between damage and offenders acting n Selected problems of Czech Criminal Law, 11th. Nov. 2015 18 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Culpability nthere is no criminal liability without culpability n 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 n ndirect intent n nthe offender was aware that he could violate or endanger an interest protected by the Criminal Code and he wanted to cause such violation or endagering n nindirect intent n nthe offender was aware that he could violate or endanger an interest protected by the Criminal Code and if he caused such violation or endagering he agreed with its result n Selected problems of Czech Criminal Law, 11th. Nov. 2015 19 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 nwilful negligence n nthe offender knew that he could violate or endanger an interest protected by the Criminal code but without adequate reasons he believed he would not cause such violation or endagering n nunwilful neglience n noffender did not know that his acting could violate or endanger an interest protected by the Criminal code although with respect to the circumstances and his personal situation he should and could have known it n ngross neglience (wilful or unwilful) – recklessness of offender to the interest protected by the Criminal Code n nin economic criminality most of the crimes are intentional n Selected problems of Czech Criminal Law, 11th. Nov. 2015 20 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Practical example - theft n nwho unlawfully appropriates someone elses thing by seizing it and thereby causes damage which is not insignificant n noffender (who) - everybody who has age and sanity n nacting of commission - usurpation of thing n nconsequence – damage which is not insignificant n nculpability is not expressed but 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 n Selected problems of Czech Criminal Law, 11th. Nov. 2015 21 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Criminal Procedure aspects of Economic Criminality Examination of accused in economic criminality cases n nit is necessary to know the case and to be prepared for examination n nwhite colour offender n n„top“ lawyers n nfirst examine an accused without a criminal past, or those whose share of crime is less n nwhat we can offer to accused who wants to cooperate? n n Neapolis University, Cyprus , 2015 22 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Plea bargaining (agreement on guilt and punishment ) nit has been promoted on the basis that it helps the police authorities to investigate organised crime and corruption in exchange for a lower or no sentence n nis possible for crimes punishable with less than ten years in prison n nis possible between the accused and the prosecuting n na precondition for it is the declaration of the accused that they committed the act for which they are being prosecuted n nthe agreement must also contain the execution of punishment or waiver of punishment and compensation for damage or nonmaterial damage, or the surrender of unjust enrichment, if agreed n n Selected problems of Czech Criminal Law, 11th. Nov. 2015 23 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Examination of witness in economic criminality cases n n nit is necessary to know the case and to be prepared for examination n nsmall criminal sensitivity n nfear of the witness to testify n n Neapolis University, Cyprus , 2015 24 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 Summary neconomic criminality became a phenomenon, whose power is growing and does not have to be underestimated n neconomic criminality has reached in recent years such proportions that not only destabilizes the legal consciousness of citizens, but also the entire national economy n ncompanies who are not willing to cope with competition, which benefits from the economic criminality and who are not willing to act on the edge of the law are in the competitive struggle forced out of the fair market. n nthose who take over the monopoly position in the market after forced out, these subjects may indirectly affect the allocation of public contracts, subsidies, the amount of taxes, loans etc. n Selected problems of Czech Criminal Law, 11th. Nov. 2015 25 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n nthe economic criminality is strongly spread through into the state administration n nthe consequences of economic criminality have undeniable impact on the weakening of confidence of society in the ability of the functioning market economy and consequently on the political system which is bound with it n n Selected problems of Czech Criminal Law, 11th. Nov. 2015 26 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 n n nThanks for your attention n nQuestions…??? n n Selected problems of Czech Criminal Law, 11th. Nov. 2015 27 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 nDoc. JUDr. Marek Frystak, Ph.D. nassistant professor nDepartment of Criminal Law nFaculty of Law - Masaryk University nVeveří 70 n611 80 Brno nThe Czech republic nTel. + 420 549 493 870, Fax. + 420 541 213 162 nE-mail: Marek.Frystak@law.muni.cz n Selected problems of Czech Criminal Law, 11th. Nov. 2015 28