Current Affairs

Judgment II. ÚS 474/19 - On the Principle of Subsidiarity of Criminal Repression

05 November 2019


On 5 November 2019 the Second Chamber of the Constitutional Court (judge rapporteur Kateřina Šimáčková) granted the constitutional complaint and quashed judgments of lower courts.



With respect to the principle of subsidiarity of criminal repression, if the criminal courts fail to provide adequate reasoning as to why more lenient measures of  private law in a particular case is not be sufficient and effective (especially in cases where criminal proceedings prosecute conduct with a private law basis), the resulting judgments may be contrary not only to Art. 36 (1) of the Charter of Fundamental Rights and Freedoms, but also to Art. 39 of the Charter.

Only an unlawful conduct, which cannot be sufficiently remedied by means of private law (i.e. through just satisfaction) or which resulted in such a serious violation (threat) of the interests protected by criminal law that is impossible to find a sufficient solution solely within the realm of private law, might be qualified and prosecuted as a criminal offence of defamation.



I. By means of the Decision of the District Court, the Petitioner was found guilty of the criminal offence of defamation. In return for this and the concurrent criminal offence of false accusation, the Petitioner was sentenced to an aggregate prison sentence of two years and six months, the serving of which was conditionally suspended for a probationary period of three years. The act for which the Petitioner was sentenced consisted in deliberately publishing a negative review of the injured party’s law firm through the Internet at the portal, even though she was aware that at least two pieces of the information contained therein, namely that the legal counsel had contacted the counterparty in her case and that he had not taken any legal action, were false. In the context of the other information in the review, with respect to the manner in which it was made public and the extent of its display to the user, the allegations were likely to substantially jeopardise the seriousness of the injured legal counsel among his fellow citizens and cause damage to his work. The Regional Court dismissed the Petitioner’s appeal. Her subsequent application to the Supreme Court was dismissed as manifestly ill-founded.

II. After reviewing the matter, the Constitutional Court concluded that, contrary to Art. 39 of the Charter, the ordinary courts failed to adequately address and take into consideration the subsidiarity principle of criminal repression or the ultima ratio principle. The conduct for which the Petitioner was reproached could not in fact be regarded as criminally punishable.

The ordinary courts concluded that the Petitioner’s conduct, as described above, amounted to the criminal offence of defamation. However, these courts failed to address in more detail the issue of the effectiveness and availability of other more lenient legal remedies. The District Court dealt with the social harmfulness of the prosecuted conduct only in the context of consideration of the type and assessment of the punishment (i.e. not in the context of evaluating the guilt); the Regional Court failed to address the subsidiarity principle of criminal repression at all. It was not until the Supreme Court that the question of a possible contradiction of the sentence awarded to the Petitioner with the ultima ratio principle was dealt with, yet the Supreme Court did not find any contradiction. It failed to state anything about the possibility of asserting liability under other legal regulations.

The Constitutional Court emphasised that, with regard to the subsidiarity principle of criminal repression, ordinary courts are obliged to provide adequate reasoning, especially in cases where criminal proceedings concern conduct which has a private law basis, as to why the means of private law were not sufficient and effective in a particular case. In the absence of such reasons, the application of criminal liability is not permissible. As regards the criminal offence of defamation, it should be reserved only for exceptional cases of the most serious acts and interferences with personality rights which cannot be remedied using private law means, as indeed indicated by its very legal definition, including the requirement of a “substantial” threat to the seriousness of the person concerned among fellow citizens, or imminent “serious harm” to the person concerned. However, according to the Constitutional Court, the Petitioner’s conduct in the instant case, which tends to fall within the professional sphere, could not be assessed as being so serious that it would have required a response using criminal law.

At the same time, however, the Constitutional Court recalled, in particular, taking note of the other Petitioner’s expressions and statements contained in the criminal docket, as well as in the Petitioner’s personal submissions sent to it, that the freedom of expression is not boundless in a democratic society and it cannot be perceived as generally allowing (any) public communication of insulting or objectively false information about others. Thus, although the Petitioner’s conduct was not criminally punishable in the present case, it was especially civil liability which could have been taken into account and which, if the statutory conditions were complied with, entailed the possibility of imposing civil law sanctions.

With respect to the above, the Constitutional Court concluded that the ordinary courts had violated the subsidiarity principle of criminal repression, and thus the constitutional principle of nullum crimen sine lege pursuant to Art. 39 of the Charter. It therefore allowed the constitutional complaint and annulled the contested decisions.