Brake-checking under Czech criminal law: legal classification

Apart from the crime of damage to another's property under Section 228(1) of the Czech Criminal Code4), Czech courts most often classify brake-checking as the crime of bodily harm under Section 146(1) of the Criminal Code or as an attempt of it. To meet the mental element of this crime, it is not enough that the offender acted intentionally; it must be proven that his intent, even if only indirect (dolus eventualis), was directed at causing bodily harm.5) If a driver resorts to a manoeuvre carried out in such a way that physical contact with the victim's vehicle is practically certain, then, according to the case law of the Supreme Court, his intent covers both that contact and any consequences that may result from it, including serious injury to the victim and the victim's passengers.6)

The driver must be aware that a collision of vehicles at high speed can cause very serious injuries.7) At the same time, he cannot rely on any circumstance that would prevent injury to other persons.8) If the vehicles are travelling at 80 km/h or more, a collision would without any doubt mean a serious threat to the health and lives of all involved, which must be obvious even to a layperson. It is therefore easy to imagine that a sharp reduction in speed could have serious or even fatal consequences.9) In such a case, brake-checking may also be classified as an attempt of the crime of grievous bodily harm under Section 145 of the Criminal Code or, where grievous bodily harm is caused, as grievous bodily harm itself.

Indirect intent is inferred not only at high speed but also at low speed. By brake-checking at any speed, the offender creates a dangerous situation in road traffic in which the extent of the threatened harm essentially depends on the driving skills, momentary attention and timely reaction of the drivers of nearby vehicles.10) The circumstances of the specific situation must also be taken into account, for example a wet road or the nature of the vehicle being brake-checked.11) For example, it is common knowledge that bus passengers are usually not wearing seat belts and that in a collision or sharp braking of a bus they may hit the seats in front of them, fall to the floor and suffer minor fractures, spinal sprains or similar injuries.12) Therefore, even brake-checking at lower speeds may be classified as an attempt of the crime of bodily harm.

The question arises whether in some cases it is rather conscious negligence than indirect intent. When distinguishing conscious negligence from indirect intent, it is necessary to assess whether the reasons for which the offender relies on not causing the consequence are sufficient reasons; only reasons that, although incapable of preventing the consequence in the case at hand, could realistically have been capable of doing so in another situation and under other conditions can be considered sufficient.13) It is not disputed that when brake-checking, the offender must know that sharp braking may cause a traffic accident. If, however, the offender were reconciled to an accident occurring, this would mean that he was also reconciled to the possible serious or even fatal consequences that threaten him as well. His intent would then have to be inferred as directed at causing bodily harm to himself too, which does not correspond to the definition of punishing the brake-checked driver by slowing down. It is therefore likely that the offender relies on the skills and alertness of the driver of the brake-checked vehicle, although without adequate reason. That would be conscious negligence rather than indirect intent, and in some cases brake-checking could be classified as the crime of negligent bodily harm under Section 148 of the Criminal Code.

If a driver suddenly and repeatedly brakes in an attempt to cause a multi-vehicle collision and, taking all these circumstances together, creates and deliberately maintains a state of uncontrollable danger, the courts classify this conduct as the crime of general endangerment under Section 272(1) of the Criminal Code.14) The same classification applies to conduct where the offender must be aware that, by unexpected braking, he will endanger a number of people travelling in his lane and expose them to the danger of grievous bodily harm or death. In this situation he cannot rely on the vehicles behind him reacting adequately and in time to his sudden stop. To classify brake-checking as the crime of general endangerment, at least indirect intent of the offender directed at causing a generally dangerous consequence is therefore required, without the offender having to know in what specific way the general danger will arise.15) This intent is inferred, for example, from brake-checking in heavy traffic. In such traffic, the offender creates a general danger, that is, a state in which there is a greater or lesser probability of a serious disruption which, by its nature, extent and intensity, means a danger of death or grievous bodily harm to several persons or a danger of large-scale damage to another's property.16)

The statutory element of exposing a larger number of persons to the danger of death or grievous bodily harm can be met not only where a larger number of persons are specifically and immediately endangered at the same moment, but also where they are endangered successively within a short time by a single continuous, indivisible act of the offender.17) To meet the criterion of a larger number of persons, it is sufficient that the evidence shows such a number were endangered; they need not be identified in the subsequent criminal proceedings and therefore need not be questioned.18)

Another, less frequent offence that appears in court decisions in connection with brake-checking is the crime of dangerous threats with a weapon under Section 353(2)(c) of the Criminal Code. A threat with a weapon occurs not only where the offender uses a weapon for direct physical violence against a person to achieve his aim, but also where he uses a weapon to intimidate by threatening to use it for a physical attack on the victim unless the victim does what he is being forced to do.19) This mainly concerns situations where the persons know each other or have had prior contact that culminated in brake-checking. This strengthens the real weight of the threat in a way that may give rise to a well-founded fear of it, i.e. a higher degree of distress caused by the harm threatened.20)

In sum, brake-checking cases are varied and their assessment is often complicated. This article provides a basic summary of the case law of the Czech Supreme Court on brake-checking; further development can be expected, particularly on the question of indirect intent in the crime of bodily harm under Section 146(1) of the Criminal Code.

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1) Resolution of the Supreme Court of 31 October 2012, file no. 6 Tdo 1027/2012
2) Resolution of the Supreme Court of 22 December 2004, file no. 6 Tdo 524/2004
3) Resolution of the Supreme Court of 17 April 2019, file no. 15 Tdo 1443/2018
4) Resolution of the Supreme Court of 28 March 2018, file no. 3 Tdo 257/2018
5) ŠÁMAL, Pavel et al. Trestní zákoník – komentář. 2nd edition. Prague: C. H. Beck, 2012, p. 1541
6) Resolution of the Supreme Court of 13 September 2011, file no. 7 Tdo 1081/2011
7) Resolution of the Supreme Court of 23 November 2011, file no. 6 Tdo 1337/2011
8) Resolution of the Supreme Court of 26 September 2018, file no. 8 Tdo 945/2018
9) Resolution of the Supreme Court of 31 May 2017, file no. 8 Tdo 379/2017
10) Resolution of the Supreme Court of 31 May 2017, file no. 8 Tdo 379/2017
11) Resolution of the Supreme Court of 31 October 2012, file no. 6 Tdo 1027/2012
12) Resolution of the Supreme Court of 23 November 2011, file no. 6 Tdo 1337/2011
13) ŠÁMAL, Pavel et al. Trestní zákoník – komentář. 2nd edition. Prague: C. H. Beck, 2012, p. 234
14) Resolution of the Supreme Court of 13 November 2013, file no. 4 Tdo 1094/2013
15) Resolution of the Supreme Court of 26 September 2018, file no. 8 Tdo 945/2018
16) ŠÁMAL, Pavel et al. Trestní zákoník – komentář. 2nd edition. Prague: C. H. Beck, 2012, p. 2768
17) Resolution of the Supreme Court of 13 November 2013, file no. 4 Tdo 1094/2013
18) Resolution of the Supreme Court of 26 September 2018, file no. 8 Tdo 945/2018
19) ŠÁMAL, Pavel et al. Trestní zákoník – komentář. 2nd edition. Prague: C. H. Beck, 2012, p. 1750
20) Resolution of the Supreme Court of 8 August 2018, file no. 6 Tdo 809/2018