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The New Penal Code in the Context of
Development of Criminal and Penal
Policy (the main new elements)
PROF. JUDR. PAVEL ŠÁMAL, PH.D.
The Supreme Court of the Czech Republic
Charles University in Prague, Faculty of Law, Department of Criminal
Law
Comenius University in Bratislava, Faculty of Law,Department of
Criminal Law
The New Penal Code and Criminal Policy
 primary role of non-criminal measures for the
protection of the democratic state institutions, the
rights and freedom of individuals and the protection
of life, health and property
 subsidiary role of criminal law within the legal order
and society
 new legislation is based on relatively constant and
fundamental principles of substantive criminal law
The Fundamental Principles in the New Penal Code
 ultima ratio principle
 freedom of the individual and principle of humanity
 principle of legality
 individual criminal responsibility
 principle of liability for fault
 no punishment without law
 principle of proportionality of criminal sanction
 principle of depenalisation
 prohibition of retroactivity and analogy to the
detriment of the offender
The Main Objectives of the New Penal Code
 to ensure the protection of civil rights, fundamental freedoms and other
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values of a democratic society, human rights and the rule of law
to ensure the implementation of the criminal policy of the democratic
society based in particular on above mentioned principles
to dispose of the relics of non-democratic conception of functions and
purposes of substantive criminal law
to achieve a comparable level with modern European criminal law
to deepen the differentiation and individualisation of criminal
responsibility
to change the philosophy for imposing the sanctions
to change the approach to the protection of significant social interests
by means of criminal law and to prioritise fundamental human rights
and freedoms over remaining interests protected by the Penal Code
to introduce a comprehensive regulatory framework for the protection
of minors
New Elements of the Penal Code
 formal–material conception of crime
 new classification of criminal offences: offences and
crimes
 change of the scheme of the special part of the Code
 revision and clarification of the constituent elements
of crime
 better conditions for the judicial individualisation of
sanctions
The New Penal Code and the Implementation of
Sanction Policy
 restrictions on imposition of unconditional prison
sentences and endorsement of use of alternative
sentences
 more severe criminal penalties for particularly
serious crimes
 more lenient sanctions for juvenile offenders under
the Juvenile Justice Act No. 218/2003 Coll.
 specific legislation on the sanctioning of legal
persons under the Act No. 418/2011 Coll. on the
Criminal Liability of Legal Entities
Sanction Policy as a Part of Criminal Policy
 politicisation of criminality – strengthening of criminal
repression
 influence of international organizations (European
Union, Council of Europe)
 imposition of short-term unconditional prison sentences
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modification of conditional release
aggravation of penalties for less serious crimes and for cases of
recidivism
slow start of use of alternative sentences
low number of imposed monetary penalties
restrictions on imposition of community service
The Evolution of the Courts‘ Sanction Policy
Year
Unconditional
prison
sentence
Conditional
conviction to the
punishment by
prison sentence
(including with
supervision)
Monetary
penalty
Community
service
Other
individually
imposed
sentences
Waiving of
punishment
Number
of
convicted
%
Number
of
convicted
%
Number
of
convicted
%
Number
of
convicted
%
Number
of
convicted
%
Number
of
convicted
%
1996
13375
23,1
37020
63,9
4734
8,2
725
1,3
427
0,7
1693
2,9
1998
14656
27,1
33059
61,1
2634
4,9
1776
3,3
372
0,7
1586
2,9
2000
14114
22,3
35617
56,3
3571
5,6
7084
11,2
754
1,2
2071
3,3
2002
9659
14,8
34942
53,7
3500
5,4
13424
20,6
1165
1,8
2408
3,7
2004
10192
14,9
36162
52,8
2913
4,3
13031
19,0
1622
2,4
2817
4,1
2006
9997
14,4
38657
55,7
2678
3,9
11787
17,0
1386
2,0
2723
3,9
2008
10255
13,5
42157
55,6
5307
7,0
11193
14,8
993
1,3
2684
3,5
2010
11818
16,8
44403
63,1
3462
4,9
7420
10,5
1277
1,8
2051
2,9
2012
11602
16,2
45675
63,9
2847
4,0
8094
11,3
1501
2,1
1693
2,3
2013
8579
11,0
57465
73,7
2491
3,2
6746
8,7
1277
1,6
1352
1,7
2014
9568
13,1
50203
68,9
2569
3,5
7962
10,9
1102
1,5
1376
1,9
The Evolution of the Courts‘ Sanction Policy
 decrease in imposition of unconditional prison
sentences during 2002-2008 compared to 1998 by
almost one third
 after the entry into force of the new Penal Code, an
upward trend
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aggravated penalties for frequently occurring offences (failure
to perform maintenance obligation, obstructing the execution
of an official decision)
repeat property offences
short-term sentences (up to one year) account for 2/3 of all
imposed unconditional prison sentences
The Evolution of the Courts‘ Sanction Policy
 in 2013 the percentage of unconditional prison
sentences decreased to 11 %
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influence of the presidential amnesty
decriminalisation and depenalisation of failure to perform
maintenance obligation and obstructing the execution of an
official decision and deportation
 in 2014 the percentage of unconditional prison
sentences amounted to 13,1 %
The Evolution of the Courts‘ Sanction Policy–
Structure of the Imposed Alternative Sentences
 conditional conviction
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in 2014 it represented ¾ of the imposed alternative sentences
on average, only 5 % of suspended convicted persons are subject to
probation supervision
 community service
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the second most frequently applied alternative sentence
 monetary penalty, house arrest and other punishments
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limited application
 so far, the reduction of unconditional prison sentences
hasn‘t led to a more significant decrease of incarceration
rate
The Evaluation of Judicial Practice in the Area of Imposing
and Execution of Selected Criminal Sanctions in 2010 - 2011
 judicial practice survey carried out by the judges of
the Criminal division of the Supreme Court of the
Czech Republic, published on the 12th of December
2014, No. 9/2014 of the Collection of Decisions and
Standpoints
 short-term
unconditional
prison
sentences
(sentences of up to one year) must be imposed only
exceptionally, mostly in cases of repeat offenders
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imposition of an alternative sentence must be considered
especially in cases where the court considers imposing an
unconditional prison sentence of up to three or six months
The Evaluation of Judicial Practice in the Area of Imposing
and Execution of Selected Criminal Sanctions in 2010–2011
 house arrest
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small number of cases (lack of electronic control system), increase in
frequency of application needed
 community service
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should be imposed within the whole sentence range, conversion into
a monetary penalty or a punishment by house arrest
 prohibition of entry to sporting, cultural and other social
events
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increase in frequency of application needed
 monetary penalty
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the most important property punishment, the judicial practice must
be changed - courts impose it rarely or don‘t impose it at all
The Evaluation of Judicial Practice in the Area of Imposing
and Execution of Selected Criminal Sanctions in 2010–2011
 conditional conviction to imprisonment
 the number of conditional convinced persons is increasing to
the detriment of community service punishments and
monetary penalties
 need to impose alternative punishments more frequently,
especially the punishment by house arrest
 need for more frequent imposition of appropriate restrictions
and reasonable obligations and educational measures for the
offenders of an age close to the legal age of a minor
 conditional suspension of the criminal prosecution
and approval of settlement
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more attention must be also paid to the diversions
The Evaluation of Judicial Practice in the Area of Imposing
and Execution of Selected Criminal Sanctions in 2010–2011
 the practice of the Public Prosecutor‘s Office
 the approach of public prosecutors has also an impact on
imposing of short-term unconditional prison sentences and
use of alternative sentences
 need to focus on use of alternative sentences and diversions
 need to focus on new punishments introduced by the new
Penal Code – house arrest and prohibition of entry to sporting,
cultural and other social events
 increased activities are recommended while proposing to
impose appropriate restrictions and reasonable obligations
and educational measures for the offenders of an age close to
the legal age of a minor
The Evaluation of Judicial Practice in the Area of Imposing
and Execution of Selected Criminal Sanctions in 2010–2011
 legislative proposals and other related measures
 house arrest
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proposal for change of the Section 61 of the Penal Code and
reintroduction of alternative prison sentence instead of relative
conversion according to the legislation in force
conditional suspension of the criminal prosecution and
approval of settlement
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basic conditions for settlement are the same as for conditional
suspension of the criminal prosecution – settlement should be
regulated in such a way that its use would be beneficial for the law
enforcement authorities as well as for the accused and the victim
Conclusions
 effective sanction policy must be based on a detailed
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analysis and a realistic assessment of the possibilities
of criminal repression
creation of conditions favourable to resocialization
and reintegration of each offender in the society
importance of post-penitentiary care
need to accomplish prison reform
compliance with the principles of restorative
judiciary
Thank you for your attention!