On 1 October 2020, Act No. 333/2020 Sb., Amending Act No. 40/2009 Sb., The Criminal Code, as amended, Act No. 141/1961 Sb., On Criminal Procedure (Criminal Procedure Code), as amended, and some other laws entered into force. This is a relatively significant amendment, the main goal of which, as declared by the legislator, is to increase the frequency of fines imposing, both instead of the still dominant sentence of imprisonment and in addition to other sentences. Although the legislator declares that the primary goal is not to reduce the number of “prison population”, but to increase the degree of individualization and targeting of imposed sanctions in order to make them more effective, the reduction of the number of prisoners is obviously also planned.
Another important subject of the amendment, not mentioned in the explanatory memorandum, is the institute of plea bargain, where there has been a fundamental expansion of the range of opportunities when such an agreement can be negotiated. The amendment also included adjustments of technical nature, aimed at simplifying the criminal proceedings where it is possible and desirable regarding the findings and the position of the accused. In this article, we briefly summarize the most important changes to both Czech criminal codes, i.e. the Criminal Code and the Criminal Procedure Code.
Preference of fines
Although the legislator has at least not yet implemented an absolute obligation to impose fines for certain crimes automatically instead of imprisonment sentences, the amendment to the Criminal Code shows
a noticeable tendency to prefer the imposition of fines, especially for property crimes, resp. where the perpetrator obtained or intended to obtain a property benefit. The courts are now obliged to always consider the imposition of a fine and do it either solely or in addition to another penalty, if the financial or personal circumstances of the perpetrator do not preclude this option. The legal preference for the imposition of fines is also linked to the obligation of law enforcement authorities to examine the accused’s family background and property rigorously and in more detail for the purpose of taking it into account in the future possible imposition of a sentence.
Simultaneously with the preference for fines, the legislator abolished the possibility of converting the fine into other so-called alternative sentences, i.e. different from imprisonment, which in practice seemed ineffective and rather motivating the convict to calculate whether it was more advantageous for him to pay the fine or wait for another, potentially less tangible alternative sentence such as house arrest or community service. This option was therefore deleted from the Criminal Code and at the same time the institute of the so-called substitute imprisonment for unpaid fines was replaced by a possibility (but not necessarily a duty, see below) of converting fines directly to unconditional imprisonment, according to a pre-determined key, when the decisive factor for the duration of imprisonment is twice the so-called daily rates of the fine. A similar procedure is followed in the event of non-compliance with the imposed sentence of community service. Convicts should thus be motivated to pay the imposed fine, as the consequences of possible non-payment are clearly defined. The automatic rehabilitation of convictions for intentional criminal offenses (with the exception of particularly serious crimes) upon payment the imposed fine should also work as an incentive.
The legislator also alleviated the relatively harsh time limits for the payment of a fine by extending the payment period to 30 days in general, with the possibility of deferring the sentence by up to one year and allowing the fine to be divided into installments without time limit for payment of the entire fine. The law also gives the convict the opportunity to “last minute” additional payment to avert the conversion of the fine into the imprisonment, even in part – only the remaining unpaid part of the fine will be converted.
Efforts to simplify criminal proceedings
Through the discussed amendment of criminal procedure, the legislator clearly seeks to give more space within criminal proceedings to settle a case, without the often extensive, complex and financially and time-consuming taking of evidence and evaluation thereof, moreover usually in first instance and appeal courts. The legislator specifically targets situations where the accused himself calculates that the law enforcement authorities will eventually be able to prove his guilt for committing a crime and is willing to accept an adequate punishment for such a case. Therefore, in order to achieve a more acceptable punishment, the accused is willing to “facilitate” the work of the authorities. The main tool for implementing this shift in the legal regulation of criminal proceedings is a significant expansion of the possibility for the accused to make a plea bargain with the public prosecutor.
In order to further expand the use of the institute of the plea bargain, the legislator has proceeded to allow the agreement on imprisonment even below legal minimum of the penalty, while it is also possible now to negotiate the plea bargain even when committing a particularly serious crime. Unless a legal reason for mandatory defense is given, the accused no longer must have an attorney when negotiating the plea bargain. Regarding the negotiation of plea bargain, also the role of the court (more precisely the President of the Chamber) has been extended, as now the court has the opportunity to directly propose to the accused and the public prosecutor the conclusion of the plea bargain after the opening of the trial phase, thereby indicating its opinion on the matter even before taking of evidence.
Another novelty from the category of efforts to simplify criminal proceedings is the obligation of the public prosecutor to state in the indictment his proposal of an adequate sentence with a justification of its imposition. The court then sends the accused a copy of the indictment stating that he can comment on the question of his guilt or innocence, the possibility of concluding a plea bargain, pleading his guilt in the trial phase or stating whether he agrees with the description of the act, its legal qualification and proposed punishment and mark the stated facts as undisputed. The same thing is repeated at the beginning of the trial phase, and if no plea bargain is reached (or not approved), the court will give the accused an opportunity to plead guilty, which is essentially the institutionalization of confession that have been essentially lacking in Czech criminal law, except the provisions dealing with the so-called diversions in the criminal proceedings. What is then declared indisputable by the accused, is not being proven by evidence unless the court has reasonable doubts. The accused is even directly motivated to use these institutes to simplify, respectively “facilitate” the course of criminal proceedings, by the expansion of the range of facts that the court should take into account when imposing a sentence. In particular, the court must take into account the plea of guilt and making the facts indisputable.
Other important minor adjustments
Some other partial amendments to the criminal laws performed are worth mentioning here, specifically the court’s obligation to take into account the other yet unenforced sentences of the accused, unless of course a summary or joint sentence is being imposed. A change in favor of the accused is the extension of the range of cases where it is possible to apply for conditional release from imprisonment imposed for committing a particularly serious crime after serving just one third of the sentence. Currently, this possibility is excluded only in the case of some precisely determined particularly serious crimes.
The most discussed amendment is the doubling of the limits of the amount of damage expressed in money, resp. the amount of the benefit obtained, the value of the thing or the costs to eliminate the consequences, in the provisions of Section 138 of the Criminal Code. On the part of the legislator, this change was presented as an attempt to reflect economic development, where the original financial amounts (limits) in this provision corresponded to the perception of the natural limits to the date of the provision. In our opinion though, the main intention was probably to relieve criminal courts and free up prison capacity in the future.
Just very briefly, let’s mention also the extension of the limitation period for the most serious and privatization-related crimes to 30 years, the abolition of the exemption from the ban on conducting public auctions, judicial auctions and monetization in insolvency proceedings of property seized in criminal proceedings, which applied so far to state’s receivables, and the technical regulation of simplified procedure before a single Judge and enabling a decision of exemption from imposing sentence (or summary sentence) by a criminal warrant, even if the previous sentence was imposed by a judgment.
The above-described amendment to criminal laws aims to extend various alternatives to traditional criminal proceedings ending with a court judgment either on acquittal or on sentencing the perpetrator to imprisonment resulting in his isolation from society, which may be perceived controversially, but from a practical point of view, the amendment makes sense. Notwithstanding the questionable effectiveness in terms of protecting society from criminals and preventing recidivism, this amendment certainly reflects the principle of subsidiarity of criminal repression enshrined in Section 12(2) of the Criminal Code.
Should you have any questions regarding the above discussed topic, do not hesitate to contact our law firm at any time.
PhDr. Mgr. Jan Ptáčník, attorney – email@example.com
9. 11. 2020