The new Criminal Code was promulgated in the Collection of Laws under Act No. 40/2009 Coll., which completed the long-term process of recodification of substantive criminal law. Given that this is not merely a summary of partial amendments to the still existing Criminal Act, but an entirely new codification with a number of changes and innovations, the author of this article aims to draw attention to at least the most significant ones. Although the existing Criminal Act, which had been part of the legal system for 47 years, was substantially amended, it still bore the notional stigma of the political-legal doctrine of a totalitarian state, which was based on a class concept. The existing Criminal Act was created at a time when criminal law was abused in favour of the ruling power to suppress all opposition and persons of different political, moral or religious thinking. In the new Criminal Code, which enters into force on 1 January 2010, the human being comes to the forefront of criminal law protection, particularly life, health, bodily integrity, personal freedom, honour and dignity.

One of the most discussed changes throughout the entire discussion of the new Criminal Code was the lowering of the age limit of criminal responsibility from fifteen years to fourteen years. Professional debates and controversies on this issue were conducted not only throughout the entire preparation of the new codification, but also after its adoption, when the reduced limit of criminal responsibility actually appeared in the new Criminal Code for a short time. The aim of lowering the age limit was to enable more effective punishment of child offenders. Many critics, particularly from the ranks of doctors and teachers, spoke out against lowering the age limit, drawing attention to the negative side effect of reducing criminal responsibility, namely the acceleration of the sexual life of youth. On 7 August 2009, the Chamber of Deputies approved an amendment to the not yet effective Criminal Code, which returned criminal responsibility to the limit from the fifteenth year of age.

Formal concept of criminal offence

The basis of criminal liability under criminal law is the commission of a criminal offence. The most fundamental change in principle of the Criminal Code is the introduction of the so-called formal concept of criminal offence, instead of the already outdated material concept of criminal offence, codified into our legal system following the Soviet model. The material concept of criminal offence has been abandoned in the new Criminal Code and it is further based on the principle of subsidiarity of criminal repression, which is a material element of the formal definition of criminal offence. According to the principle of subsidiarity of criminal repression, the state should apply the instruments of criminal law with restraint, that is, primarily where other legal instruments (administrative law, civil law, commercial law, etc.) fail or are not effective. Criminal law and the criminal law qualification of certain conduct as a criminal offence must be regarded as a last resort (ultimam rationem), which is significant from the point of view of protecting fundamental societal values where other means are, from the point of view of protecting the rights of natural and legal persons, exhausted, ineffective or inappropriate.

According to the existing Criminal Act, “a criminal offence is an act dangerous to society whose characteristics are set out in the law. An act whose degree of danger to society is insignificant is not a criminal offence, even if it otherwise exhibits the characteristics of a criminal offence”. A criminal offence committed by a juvenile is called a misdemeanour (provinění). The conceptual characteristics of a criminal offence to date are dangerousness of the act to society (material characteristic) and characteristics set out in the law (formal characteristic), which are the characteristics of the constituent elements of the criminal offence (including unlawfulness), age and sanity. The social dangerousness of the act is a material corrective to the formal constituent elements of the criminal offence set out in the special part of the Criminal Act. For it to be a criminal offence, both conditions must be met simultaneously. Therefore, an act, even if dangerous to society, which did not have the formal characteristics set out in the Criminal Act, could not be considered a criminal offence to date, nor could such an act whose characteristics, although set out in the law, were not dangerous to society in a specific case.

The new Criminal Code defines in section 13(1) a criminal offence as “an unlawful act which the criminal law designates as criminal and which exhibits the characteristics set out in such law”. The vague ideological concept of dangerousness of the act to society is no longer regulated by the Criminal Code, as the legislator’s intention was apparently to rid itself of the use of “rubber concepts” and platitudes with the aim of defining more precisely the individual constituent elements of criminal offences. The formal concept of criminal offence is thus a logical consequence of the principle of legality, as it is an expression of the effort to establish precise boundaries of criminality in the law and gives citizens greater interpretative and legal certainty.

According to section 12(2) of the Criminal Code, “The criminal liability of the offender and the criminal law consequences connected therewith may be applied only in cases that are socially harmful, in which the application of liability under other legal regulations does not suffice”. The new Criminal Code is therefore based on the formal concept of criminal offence, which is not, however, a mere description of the characteristics characterising a criminal offence, as it must be assessed as a socially harmful act. Unfortunately, the definition and criteria of social harmfulness are lacking in the Criminal Code, when they will probably be established by application practice. Nevertheless, the concept of social harmfulness should not be confused in practice with the hitherto established concept of dangerousness of the act to society, as they are not the same. Social harmfulness will most likely be determined by the nature and gravity of the criminal offence.

Critics of the Criminal Code point to its weakness, which they also see in the definition of the formal concept of criminal offence, when according to them the authorities active in criminal proceedings will not be able in some cases to reliably draw a conclusion as to whether it is a criminal offence or not. These doubts raise concerns particularly in that the Police of the Czech Republic, with the supervising public prosecutors, will prosecute without further ado all, even “trivial” criminal offences, i.e., all conduct which formally fulfils the constituent elements of a criminal offence, whereby their activities will be jeopardised by excessive overload of the authorities active in criminal proceedings. This view cannot be agreed with, having regard to the above-mentioned principle of subsidiarity of criminal repression.

New categorisation of criminal offence

The new Criminal Code has not adopted the hitherto uniform concept of judicially punishable offence, namely the criminal offence (misdemeanour in the case of juvenile offenders). The new legal regulation, instead of the existing monopartition, introduces a bipartition of criminal offences, when in section 14(1) of the Criminal Code, it divides criminal offences into misdemeanours (přečiny) and felonies (zločiny). Given this division of criminal offences, the term criminal offence is retained as superordinate to misdemeanours and felonies. The categorisation of felonies and misdemeanours was already regulated by the Austrian Criminal Code of 1852, which, together with a contravention, even regulated a tripartition of criminal offences.

Misdemeanours are all negligent criminal offences and those intentional criminal offences for which the Criminal Code provides a penalty of imprisonment with an upper limit of the penalty bracket up to five years (section 14(2) of the Criminal Code).

Felonies are all criminal offences which are not misdemeanours under the Criminal Code, i.e., all criminal offences for which the criminal law provides a penalty of imprisonment with an upper limit of the penalty bracket from five years (section 14(3) of the Criminal Code). A criminal offence committed by a juvenile continues to be a misdemeanour (provinění), which is not a special category of criminal offence. The Criminal Code further regulates a subcategory of felonies, namely particularly serious felonies, which according to section 14(3) of the Criminal Code are intentional criminal offences for which the criminal law provides a penalty of imprisonment with an upper limit of the penalty bracket of at least 10 years. This categorisation of criminal offences into misdemeanours and felonies should expand the scope for the application of alternatives and diversions of criminal proceedings and for the differentiation of criminal sanctions.

Fault in the Criminal Code, mistake of fact and mistake of law

The existing concept of fault as a prerequisite for establishing subjective liability for a committed criminal offence has been retained in the new Criminal Code. Fault continues to be distinguished into intentional and negligent fault, when according to section 13(2) of the Criminal Code, culpability of an act requires intentional fault, unless this Code expressly provides that negligent fault suffices. A criminal offence is committed intentionally if the offender (a) intended to violate or endanger an interest protected by this Code in the manner set out in this Code (direct intent, section 15(1)(a) of the Criminal Code) or (b) knew that by his conduct he could cause such violation or endangerment, and in the event that he causes it, he was reconciled thereto (indirect intent, section 15(1)(b) of the Criminal Code). A criminal offence is committed negligently if the offender (a) knew that he could violate or endanger an interest protected by this Code in the manner set out in this Code, but without reasonable grounds relied that he would not cause such violation or endangerment (conscious negligence, section 16(1)(a) of the Criminal Code) or (b) did not know that by his conduct he could cause such violation or endangerment, although having regard to the circumstances and his personal circumstances he should and could have known (unconscious negligence, section 16(1)(b) of the Criminal Code).

Fault is built on an intellectual and volitional component, which fundamentally distinguish intent from negligence (negligence lacks the volitional component). Indirect intent in application practice often borders on conscious negligence, which often has fundamental significance for the criminal liability of the offender of a criminal offence. Given that the existing regulation did not in any way define the concept of reconciliation, it was settled by case law, which was based on the theory of volitional indifference, according to which an actual attitude of indifference to the consequence does not suffice to fulfil the volitional component of indirect intent. The Criminal Code in section 15(2) resolved interpretative problems by tightening criminal repression, when it introduced a legal definition of reconciliation, according to which reconciliation also includes the offender’s acceptance that in the manner set out in the Criminal Code he may violate or endanger an interest protected by this Code. Section 16(2) of the Criminal Code introduces so-called gross negligence, according to which “a criminal offence is committed with gross negligence if the offender’s approach to the requirement of due care evidences the offender’s manifest recklessness towards the interests protected by the Criminal Code.” However, gross negligence is not a special type of negligence, but only an expression of the degree of negligence required by the Criminal Code, alongside conscious negligence and unconscious negligence.

The Criminal Code, in accordance with the requirements of practice, newly regulates mistake of fact (section 18 of the Criminal Code) and mistake of law (section 19 of the Criminal Code), which was previously derived from the provisions regulating the subjective element of a criminal offence. The new regulation contains a definition of both positive mistake of fact (the offender mistakenly assumes the existence of a certain factual circumstance which is a characteristic of a criminal offence and which conditions his criminal liability) and negative mistake of fact (the offender does not know a certain factual circumstance which is a characteristic of a criminal offence, he does not act intentionally). According to the proposed regulation, negative mistake of fact will exclude criminal liability for an intentional offence, which does not exclude the offender’s liability for a negligent criminal offence. From the point of view of circumstances excluding criminal liability, a regulation of positive mistake of fact was introduced. The Criminal Code also introduces mistake of law as a circumstance reducing or excluding criminal liability, according to which “a person who, when committing a criminal offence, does not know that his act is unlawful does not act culpably if he could not have avoided the mistake.” A person who acted in an excusable mistake of law should not be criminally liable, whereby the substance should be an examination of whether the offender could have avoided the mistake of law. The Criminal Code thus distinguishes excusable mistake of law (a mistake which the offender could not have avoided - excludes criminal liability) and inexcusable mistake of law (a mistake which the offender could have avoided), which admits criminal liability with the possibility of imposing mitigation of punishment.

New concept of the perpetrator of a criminal offence, insanity and diminished sanity

According to the existing legal regulation, the perpetrator of a criminal offence is the person who committed the criminal offence himself. The new Criminal Code has regulated the concept of the perpetrator of a criminal offence, when it adopted it from the nomenclature of settled case law. According to section 22(1) of the Criminal Code, “the perpetrator of a criminal offence is a person who by his conduct fulfilled the constituent elements of a criminal offence or its attempt or preparation, if it is punishable”. A so-called indirect perpetrator is also considered a perpetrator, who does not commit the criminal offence “with his own hands”, but uses another person to commit the criminal offence, who is a living instrument in the hands of the perpetrator, namely a person who is not criminally liable due to lack of age, insanity, mistake, or because he acted in necessary defence, extreme necessity or other circumstances excluding unlawfulness, or who himself did not act or did not act culpably. The perpetrator of a criminal offence is also a person who used such a person to carry out the act who did not act with a special intent or motive envisaged by law; in these cases the criminal liability of such person for another criminal offence which he committed by this conduct is not excluded (section 22(2) of the Criminal Code). An indirect perpetrator is criminally liable for an intentional criminal offence which he committed with the help of a living instrument which he used to commit his criminal offence. The person who is used as a “living instrument” is not criminally liable (for example, due to insanity or lack of age, because he acted in extreme necessity after being coerced into acting, etc.), or is liable only for a negligent criminal offence. The Criminal Code has clarified the concept of insanity, according to which “a person who, due to a mental disorder at the time of committing the act, could not recognise its unlawfulness or control his conduct is not criminally liable for this act” (section 26 of the Criminal Code). Newly, section 27 of the Criminal Code regulates diminished sanity, whereby according to this provision “a person who, due to a mental disorder at the time of committing the act, had substantially reduced capacity to recognise its unlawfulness or control his conduct is of diminished sanity.”

Extension of cases of circumstances excluding unlawfulness

Criminal law doctrine considers circumstances excluding unlawfulness to be certain circumstances which cause a lawful act, which in its features resembles a criminal offence, not to fulfil the constituent elements of a criminal offence and not to be socially harmful. Of the circumstances excluding unlawfulness, the existing Criminal Act regulates necessary defence, extreme necessity and authorised use of a weapon. The Criminal Code, in addition to the above, introduces further circumstances excluding unlawfulness, namely the consent of the injured party (section 30 of the Criminal Code) and permissible risk (section 31 of the Criminal Code). In this connection, it must be emphasised that the list of circumstances excluding unlawfulness (criminal liability) is not closed and cannot be closed, and therefore the new Criminal Code regulates only the most important and most frequent types of these circumstances, including the consent of the injured party and permissible risk.

New systematics of the special part of the Criminal Code, changes in the area of criminal sanctions

Other changes to the new legal regulation include a change in the systematics of the special part of the Criminal Code (which captures the gravity of the interests protected by law which the Criminal Code protects) and the tightening of punishments (for the most serious criminal offences against life and health) and certain criminal offences against freedom and against human dignity. Certain superfluous constituent elements of criminal offences have been deleted from the existing Criminal Act, which the new Criminal Code has not adopted, such as, for example, the criminal offence of driving a motor vehicle without a driving licence, the criminal offence of sabotage or the criminal offence of illegal production of spirits, etc.

The new Criminal Code also introduces a number of new constituent elements of criminal offences, refines some and adapts them to the needs of practice. In this connection, it must be added that most of the constituent elements of economic criminal offences and some negligent criminal offences have been refined. In the area of protection of life, newly regulated are, for example, the constituent elements of manslaughter (section 141 of the Criminal Code), which takes into account agitation, fear, previous reprehensible conduct of the victim, with a significantly milder bracket (3 to 8 years) compared to murder, and causing death by negligence (section 143 of the Criminal Code). There is also a new regulation of dangerous threatening (section 353 of the Criminal Code), the measure of which is reasonable fear for life or causing other serious harm, and an entirely new regulation of dangerous stalking (section 354 of the Criminal Code). Among some new constituent elements are, within the framework of protection against misuse of new scientific or technical knowledge, unauthorised removal of tissues and organs (section 164 of the Criminal Code), unlawful transplantation (section 166 of the Criminal Code), handling substances with hormonal effects including other doping methods (for example, increasing oxygen transfer in the organism, section 288 of the Criminal Code). Newly included is also unauthorised access to a computer system and information medium (section 230 of the Criminal Code) and also unlawful obtaining of an access device and password to a computer system (section 231 of the Criminal Code). The Criminal Code further newly regulates punishment for violation of the secrecy of documents kept in private (section 183 of the Criminal Code). Newly regulated is also the constituent element of the criminal offence of crime against humanity (section 401 of the Criminal Code), prostitution endangering the moral development of children (section 190 of the Criminal Code), etc.

In connection with the above, the Criminal Code increases the general upper limit of the penalty bracket for imprisonment from the current 15 years to 20 years, whereby an exceptional penalty will be, in addition to life imprisonment, also imprisonment from 20 to 30 years (according to the valid regulation from 15 years to 25 years). Furthermore, it enables significantly stricter punishment of recidivism, but on the other hand strengthens the role of alternative penalties, when it newly introduces the alternative penalty of house arrest and the penalty of prohibition of entry to sporting, cultural and other social events. The Criminal Code also newly moves the penalty bracket limit from two years to three years for conditional suspension of execution of imprisonment (section 81(1) of the Criminal Code). As regards protective measures, the new Criminal Code introduces, in addition to protective measures regulated by the still effective Criminal Act (protective treatment, forfeiture of a thing or other asset value and protective education), a new type of protective measure, namely security detention (section 100 of the Criminal Code). The new legal regulation of protective treatment has brought a limitation on its duration. According to section 99(6) of the Criminal Code, protective treatment shall last as long as its purpose requires, but no longer than two years. If the treatment is not completed within this period, the court shall decide before the end of this period on its extension, and this may be repeated, but always for no more than a further two years; otherwise it shall decide on release from protective treatment.

In the opinion of the author of this contribution, the adoption of the new Criminal Code, despite all the interpretative difficulties and uncertainties that will certainly arise in practice with the application of the new legal regulation, is beneficial, as it is, by its content and sophistication, of higher quality than the existing Criminal Act. The fundamental shortcoming of the adopted recodification is, in the author’s opinion, particularly the fact that the reform of criminal law was not carried out comprehensively, i.e., that an entirely new Criminal Procedure Code was not adopted simultaneously with the new Criminal Code. Another deficit of the new Criminal Code is also the fact that it was amended even before its effectiveness, and it can be expected that the said amendment will not be the last.

This text was translated from Czech to English using an AI translator.