Criminal offence

Elements of a criminal offence

Definition of a criminal offence

The Criminal Code in Section 13(1) states that a criminal offence is an unlawful act which the criminal law designates as punishable and which shows the elements listed in such law.

This very brief definition can be elaborated into a list of individual elements. Knowing these elements and being able to use their interpretation can build a strong defense.

The elements of a criminal offence include:

Unlawfulness
General elements
Specific elements

Unlawfulness

The conduct of a particular person may meet the factual elements of a specific criminal offence and yet not be punishable. The Criminal Code regulates so-called circumstances excluding unlawfulness. These are the following:

Necessity (Section 28 of the Criminal Code)

An otherwise punishable act, by which someone averts an imminent danger to an interest protected by criminal law, is not a criminal offence.

It is not considered necessity if the danger could have been averted in another way under the given circumstances, or if the resulting consequence is obviously as serious or even more serious than the one that threatened, or if the person threatened was obliged to endure it.

Self-defense (Section 29 of the Criminal Code)

An otherwise punishable act, by which someone averts an imminent or ongoing attack on an interest protected by criminal law, is not a criminal offence.

It is not considered self-defense if the defense was entirely clearly disproportionate to the manner of the attack.

Consent of the Injured Party (Section 30 of the Criminal Code)

A person does not commit a criminal offence who acts on the basis of the consent of the person whose interests, which this person can decide on without restriction, are affected by the act.

The consent according to subsection 1 must be given in advance or simultaneously with the conduct of the person committing the otherwise punishable act, voluntarily, specifically, seriously, and understandably; if such consent is given only after the act has been committed, the perpetrator is unpunishable if they could reasonably assume that the person mentioned in subsection 1 would otherwise give this consent considering the circumstances of the case and their conditions.

Except for cases of consent to medical procedures, which are in accordance with the legal order and medical science and practice at the time of the act, consent according to subsection 1 cannot be considered consent to bodily harm or killing.

Permissible Risk (Section 31 of the Criminal Code)

A person does not commit a criminal offence who, in accordance with the state of knowledge achieved and the information they had at the time of their decision on further action, performs within their employment, profession, position, or function a socially beneficial activity, which endangers or violates an interest protected by criminal law, if the socially beneficial result cannot be achieved otherwise.

It is not considered permissible risk if such activity endangers human life or health without the person's consent in accordance with another legal regulation, or the result aimed at is clearly not proportional to the degree of risk, or the conduct of this activity is clearly contrary to the requirements of another legal regulation, public interest, principles of humanity, or is against good morals.

Legitimate Use of a Weapon (Section 32 of the Criminal Code)

A person does not commit a criminal offence who uses a weapon within the limits set by another legal regulation.

General Elements of a Criminal Offence

The general elements are common to all criminal offences. These include age, sanity, and in the case of minors, also intellectual and moral maturity.

Age

The Criminal Code in Section 25 states that a person who has not reached the age of fifteen at the time of committing the act is not criminally responsible. However, this does not mean that the conduct of these persons is not punishable in any way. Act No. 218/2003 Coll. (the Juvenile Justice Act) regulates (Section 89 - 96) a special procedure in which actions that can be considered otherwise criminal acts are assessed.

In such cases, the juvenile court may impose some of the measures prescribed by law. If the relevant conduct is committed by a person who has reached the age of fifteen but not yet eighteen, the proceedings are conducted according to the Juvenile Justice Act. In this case, the procedure is fundamentally according to criminal regulations, but with many differences reflecting the specifics of perpetrators of this age category. Juveniles are imposed three types of measures: educational, protective, and criminal. Criminal measures reflect the sanctions usually imposed by the Criminal Code - in the case of juveniles, however, they are the last (and also mitigated) option.

Only upon reaching the age of eighteen is the perpetrator generally assessed fully under the regime of the Criminal Code. However, there is also, for example, the consideration of committing a criminal offence at an age close to the juvenile age as a mitigating circumstance (Section 41(f)).

Sanity

A person who, due to a mental disorder at the time of committing the act, could not recognize its unlawfulness or control their conduct, is not criminally responsible for this act (Section 26 of the Criminal Code).

A person who, due to a mental disorder at the time of committing the act, had substantially reduced ability to recognize its unlawfulness or control their conduct, is of diminished sanity (Section 27 of the Criminal Code). Diminished sanity does not relieve the perpetrator of criminal responsibility. However, the court will take this circumstance into account when determining the type and measure of punishment (provided that the perpetrator did not bring about the state of diminished sanity even negligently through the influence of an addictive substance).

Intellectual and Moral Maturity

The Juvenile Justice Act states (Section 5(1)) that a juvenile who, at the time of committing the act, had not reached such intellectual and moral maturity to recognize its unlawfulness or control their conduct, is not criminally responsible for this act.

Specific Elements of a Criminal Offence

Specific elements differ for individual criminal offences. They are contained in the factual description of the specific criminal offence. These include the object, the objective aspect, the subject, and the subjective aspect.

Object

The object of a criminal offence is the interest protected by the criminal law. For example, life, health, property, and others.

Objective Aspect

It consists of individual elements - conduct, consequence, and causal relationship between them.

Subject

Certain criminal offences can only be committed by a person in a special position. For example, military criminal offences can only be committed by a soldier.

Subjective Aspect

The subjective aspect represents the internal relationship of the perpetrator to the given conduct. It is characterized by intent, which can exist either in the form of intent or negligence.

It is essential that criminal responsibility for a criminal offence requires intentional intent unless the criminal law explicitly states that negligence is sufficient. This is often crucial for the defense - even if the objective aspect is fulfilled (the conduct "objectively" occurs), in the absence of the appropriate form of intent, such conduct is not criminal.

For example, if someone provides false information when entering into a loan agreement, they cannot be criminally responsible if it turns out that this happened due to their mistake. Proving intent is a specific process and is usually inferred from other established facts.