Circumstances excluding unlawfulness in Czech criminal law

Under Section 13 of the Czech Criminal Code, a criminal offence is "an unlawful act which the criminal law designates as criminal and which exhibits the features set out in such law",[2] and the fulfilment of the elements of a criminal offence, where such conduct is also unlawful,[3] gives rise to criminal liability;[4] on the other hand, the absence of unlawfulness means that there is no criminal offence, because the statutory element — unlawfulness — is missing.[5] All unlawful acts are, to whatever degree, dangerous to society, but only those whose social harmfulness is so high that they require criminal sanctions[6] are regarded as criminal offences. It follows that social harmfulness is the socio-legal reason for the criminality of such an act and at the same time a defining feature of it, as is unlawfulness, which we regard as the formal expression of the act's danger to society, merging with its criminality.[7]

Criminal law must, however, also regulate cases where a particular act fulfils almost all the statutory elements of a criminal offence but is committed in special circumstances as a result of which it is not only not socially harmful but actually appears useful or desirable (e.g. injuring an attacker in defending the life of the person attacked), so that its unlawfulness is also excluded.[8] We speak of situations known as circumstances excluding unlawfulness, in which acts lacking the element of unlawfulness, although they would otherwise be a criminal offence, represent, under certain conditions, permitted conduct to which the person is entitled. Conduct in circumstances excluding unlawfulness is therefore not a criminal offence from the outset.[9] The current Criminal Code (Sections 28–32) expressly regulates necessity (krajní nouze), self-defence (nutná obrana) and lawful use of a weapon as cases known from earlier legislation, and for the first time expressly enshrines permissible risk and consent of the injured party (within which it also regulates medical procedures). The exercise of a right or duty is still not included in the law, because, as the explanatory memorandum notes,[10] it is clear from the very name of this institution that the unlawfulness of such conduct is conceptually excluded. The special part of the Code regulates a specific circumstance excluding unlawfulness: Section 363 deals with the impunity of a police agent. The catalogue of circumstances excluding unlawfulness is not, however, closed by this list; other circumstances not expressly set out in the law may also be recognised.[11]

Circumstances excluding unlawfulness must be distinguished from cases where the requirement of unlawfulness is met but the condition of social harmfulness of the act is missing, i.e. conduct which, although not criminal, remains unlawful; its commission is merely excused in a particular situation. Such reasons only exclude criminal liability.[12]

It is also necessary to distinguish cases of extinction of criminal liability, reflecting situations where a criminal offence was committed and at that moment all the conditions of criminal liability were present (the typical elements and the necessary degree of danger to society), but only later, though before a decision was made, did a certain fact occur that caused the act to cease to be criminal.[13] This group includes, for example, effective repentance or the limitation of criminal prosecution.

From the above we can conclude that circumstances excluding unlawfulness form a subgroup of circumstances excluding criminality.[14] Probably the most general circumstance excluding unlawfulness is the exercise of a right or duty, which can also include cases not expressly regulated by law. Self-defence is moreover in a relationship of speciality to necessity, being a special, privileged case of it.

[1] VOKOUN, R. Okolnosti vylučující protiprávnost. In NOVOTNÝ O. et al. Trestní právo hmotné – I. Obecná část. 6th edition. Prague: ASPI, 2010, chapter X, p. 256

[2] Paragraph 2 of the cited provision adds to the definition of a criminal offence the requirement of fault: "criminal liability for a criminal offence requires intentional fault, unless the criminal law expressly provides that negligence suffices."

[3] By unlawfulness we mean contrariety to norms, i.e. inconsistency with the legal order as a whole; we thus assess the conflict of the offender's act with the law from the perspective of the entire legal order. KRATOCHVÍL, V. Protiprávnost, trestnost činu a trestní odpovědnost. In KRATOCHVÍL, V. et al. Trestní právo hmotné – obecná část. 2nd edition. Prague: C. H. Beck, 2012, chapter 5, p. 214. Similarly SOLNAŘ, V., FENYK, J., CÍSAŘOVÁ, D. and VANDUCHOVÁ, M. Systém českého trestního práva: Základy trestní odpovědnosti. 1st edition. Prague: Novatrix, 2009, p. 104 and VOKOUN, R. 2010. Op. cit., p. 256. There is no consensus in theory as to whether unlawfulness is a general or a typical element. SOLNAŘ, V. et al. 2009. Op. cit., p. 105, likewise ŘÍHA, J. Příspěvek k pojetí viny. In Pocta Otovi Novotnému k 80. narozeninám. Prague: ASPI, Wolters Kluwer, 2008, p. 282, footnote 5, or NOVOTNÝ, O. Trestný čin. In NOVOTNÝ O. et al. Trestní právo hmotné – I. Obecná část. 6th edition. Prague: ASPI, 2010, chapter V, p. 111, take the view that unlawfulness, together with the social dangerousness of the conduct, is an element of the criminal offence itself and not of its definition.

[4] JELÍNEK, J. Okolnosti vylučující protiprávnost. In JELÍNEK, J. et al. Trestní právo hmotné. 2nd edition. Prague: Leges, 2010, chapter XI, p. 241

[5] VOKOUN, R. 2010. Op. cit., p. 256

[6] In accordance with Section 12(2) of the Criminal Code, criminal law is applied only as ultima ratio, which is expressed as follows: "The criminal liability of an offender and the criminal consequences associated with it may be applied only in socially harmful cases in which liability under another legal regulation is not sufficient."

[7] SOLNAŘ, V. et al. 2009. Op. cit., p. 104

[8] VOKOUN, R. 2010. Op. cit., p. 256

[9] JELÍNEK, J. 2010. Op. cit., p. 241

[10] The explanatory memorandum to Title III of Part I of the Criminal Code is available via the ASPI system.

[11] JELÍNEK, J. 2010. Op. cit., p. 242, likewise VOKOUN, R. 2010. Op. cit., p. 258 and SOLNAŘ, V. et al. 2009. Op. cit., p. 112. It should be noted that such analogous application of circumstances excluding unlawfulness does not conflict with the principle nullum crimen sine lege, because it narrows the conditions of the offender's criminal liability (widens the conditions of impunity); it is thus analogy "in favour".

[12] This is the classification used in German law, to which ŘÍHA, J. 2008. Op. cit., p. 285 et seq. draws attention, i.e. justifying reasons (reasons excluding unlawfulness) and excusing reasons, which include excusing necessity, discussed in more detail in the chapter Unlawfulness of the attack, and asthenic affect, discussed in the chapter of this work entitled Excess of self-defence (subchapter Asthenic excess). Older Czech legal literature also speaks of excusing reasons, represented by KALLAB, J. Trestní právo hmotné platné v zemi české a moravskoslezské: Část obecná i zvláštní. Prague: Melantrich, 1935, p. 80 et seq. or MIŘIČKA, A. Trestní právo hmotné: Část obecná i zvláštní. Prague: Všehrd, 1934, p. 78 et seq. SOLNAŘ, V. et al. 2009. Op. cit., p. 111 also points to the approach of current Polish scholarship, represented by Gordocki, who classifies circumstances excluding criminal liability as circumstances: a) excluding the unlawfulness of the act, b) excluding guilt, which include insanity, obeying an order, mistake of law and mistake of fact, and c) excluding the social harmfulness of the act where the material element is missing.

[13] SOLNAŘ, V. et al. 2009. Op. cit., p. 106 and VOKOUN, R. 2010. Op. cit., p. 257

[14] Circumstances excluding criminality are all reasons that result in an act which would otherwise be a criminal offence not being one; it is thus an umbrella category. Like circumstances excluding unlawfulness, a separate subgroup with a similar consequence is formed by cases of insanity or lack of age, which exclude the capacity to be a subject of criminal liability, but which are not the subject of this work. Institutions not regulated in Czech law, such as excusing necessity and asthenic affect, i.e. excusing reasons, exclude criminality but not unlawfulness.