2004/05/13 - IV. ÚS 396/03: Principles of Just Punishment

13 May 2004

HEADNOTES
In judging

whether the „substantive“ requirement for especially dangerous

recidivism under § 41 para. 1 of the Criminal Code is fulfilled, that

is, that the recidivism results in a substantial increase in the level

of danger of the criminal offense for society, it is necessary also to

take into consideration circumstances other than the length of time

which has passed since the last conviction, circumstances, for example,

the manner in which the criminal conduct was committed, the harm caused

both now and by the earlier criminal conduct, the amount, type and

extent of previous punishments, the motives and reasons which led to the

recidivism.  Weighty considerations include an overall evaluation of

the perpetrator’s character and personality, his overall personal

profile, features of his character and psychological attributes, age,

etc.  It is also significant to ascertain how many times the perpetrator

has been punished in the past for especially serious crimes, for how

many criminal offenses he was punished, and for how many criminal

offenses he is now being condemned, what is the total amount of time he

was incarcerated in the past, what is the time interval between times in

prison, etc.  In evaluating the substantive condition of especially

serious recidivism, the concrete level of danger of the criminal

offenses, both the previous and the currently prosecuted one, as well as

the consequences of the crimes, must be assessed.  One must also take

into account the significance and seriousness of all criminal offenses

for which the perpetrator has previously been punished, his conduct

during incarceration, his manner of life in the periods between criminal

offenses and punishments, the length of imprisonment previously imposed

as well as the duration of actual incarceration, and the commission of

other criminal offenses in the decisive period.


There

is no doubt that it best corresponds to the principles of just

punishment and of the equality of citizens before the law in a law-based

state if the regular cases of „standard“ criminality are prosecuted in

the framework of the „normal“ criminal sentencing range, as laid down in

the special part of the criminal code.  The legislature expresses

therein the categories of degrees of danger to society of certain types

of criminal delicts and provides state bodies participating in the

criminal process a settled framework within the confines of which they

must mete out a concrete punishment, taking into consideration all

circumstances of the case.  For the legislature to lay down in this

manner the criminal sentencing range best satisfies the principle nullum

crimen, nulla poena sine lege, the principle of the equality of

citizens before the law, and the principle of the predictability of

court decision-making.


Deviations

from the general criminal sentencing range, either in legislation or in

applicational practice, must be founded upon entirely exceptional and

duly justified circumstances.  The statutory conditions for the

application of the institute of especially dangerous recidivism under §

41 of the Criminal Code must be interpreted restrictively.


The

criminal policy purpose of this legal institute is to prosecute more

severely „incorrigible“ delinquents who repeatedly perpetrate especially

serious criminal offenses. The exceptional severity of the punishment

is justifiable in this case because the perpetrator, although he has

already, by being punished in the past, received appropriate warning,

obstinately repeats especially dangerous anti-social attacks the

blameworthiness of which must be notoriously manifest to him.  In such

cases, the imposition of an intensified punishment can be warranted by

considerations of general and individual prevention.

In

cases where the repeated comission of criminal acts does not

substantially increase the level of danger for society of a criminal

offense, a rational reason cannot be found as to why repeatedly criminal

conduct should result in the infliction of an especially intensified

sentencing range; in such cases, in order to fulfill the aims of the the

Criminal Code, it suffices to mete out punishment within the framework

of the „normal“ (that is, not increased by one-third) sentencing range.



 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


On

13 May 2004 the Constitutional Court decided without an oral hearing in

a panel composed of its chairperson, JUDr. Jiří Mucha, and Justices

JUDr. Pavel Holländer a JUDr. Jan Musil in the matter of the

constitutional complaint of Milan Adam, born 14 November 1977, residing

at Polní 18/1817, Český Těšín, at the moment serving a sentence of

imprisonment at the Valdice Penitentiary, Náměstí Míru 55, 507 11

Valdice, represented by JUDr. Stanislav Blažek, an attorney with his

office at Moskevská 24a, 736 01 Havířov6 May 2003 ruling of the Supreme

Court of the Czech Republic, file no. 5 Tdo 363/2003, the 25 September

2002 judgment of the Regional Court in Ostrava, file no. 5 To 422/2002,

and the 12 August 2002 judgment of the District Court in Karvina , file

no. 7 T 39/2002, with the Supreme Court of the Czech Republic, the

Regional Court in Ostrava, and the District Court in Karvina as parties

to the proceeding and the Supreme State Attorney, the Regional State

Attorney in Ostrava, and the District State Attorney in Karvina as

secondary parties to the proceeding, decided, as follows:

 

The

6 May 2003 ruling of the Supreme Court of the Czech Republic, file no. 5

Tdo 363/2003 is quashed.  The 25 September 2002 judgment of the

Regional Court in Ostrava, file no. 5 To 422/2002 is quashed in relation

to the defendant Milan Adam.  That part of the 12 August 2002 judgment

of the District Court in Karvina , file no. 7 T 39/2002, which relates

to the finding of guilt and imposition of punishment in relation to the

defendant Milan Adam is quashed.


REASONING


I.
 

In

his constitutional complaint which, as far as concerns the requirements

prescribed by Act No. 182/1993 Coll., on the Constitutional Court, as

subsequently amended (hereinafter „Act on the Constitutional Court“),

was timely and duly submitted, the complainant (in the criminal matter

„the convicted“) requests that the 6 May 2003 ruling of the Supreme

Court of the Czech Republic, file no. 5 Tdo 363/2003 and the two

judgments preceding it, the 25 September 2002 judgment of the Regional

Court in Ostrava, file no. 5 To 422/2002 and the 12 August 2002 judgment

of the District Court in Karvina , file no. 7 T 39/2002, be quashed.
 

The

complainant believes that the contested ordinary court decisions

infringed his constitutionally guaranteed right to judicial protection,

specifically those found in Arts. 36 and 39 of the Charter of

Fundamental Rights and Basic Freedoms (hereinafter „Charter“).  In

particular, he cannot accept that in the judgment of conviction he was

adjudged, pursuant to § 41 para. 1 of the Criminal Code, as an

especially dangerous recidivist, since the substantive requirements for

especially dangerous recidivism (that is, a substantial increase in the

level of danger of the criminal offense for society) were not met in his

case.  In this regard, the complainant referred to the Constitutional

Court‘s judgment of 11 July 2002, file no. III. ÚS 701/01.
 


II.
 

The Constitutional Court ascertained the following from criminal file no. 7 T 39/2002 of the District Court in Karvina:
In

its 12 August 2002 judgment, file no. 7 T 39/2002, the District Court

in Karvina convicted the complainant, under § 234 para. 1 of the

Criminal Code, of the criminal offense of robbery and, as an especially

dangerous recidivist, under § 41 para. 1 of the Criminal Code, sentenced

him to imprisonment of eight years, and to serve his time, he was

assigned to higher security level prison.  Stated briefly, the criminal

act consisted in the fact that on 15 January 2002 at approximately 1:30

a.m. in Český Těšíň the complainant, together with his accomplice, Jiří

Jadamus, attacked the injured party, Ivan Gazdík and stole from his

wallet with the sum of 1650 Kč and identity cards.  The act occurred as

follows – the complainant hit the complaining witness in the face with

his fist, upon which the complaining witness fell to the ground, at

which point the accomplice Jadamus leaned over the complaining witness,

began searching through his clothing, and pulled his wallet from the

pocket of his jacket; when, during the search, the complaining witness

began to resist him, the complainant kicked him in the ribs with his

shoe (instep), after which both accomplices left the scene of the

crime.  The complainant committed this criminal act despite the fact

that, by the 2 July 1998 judgment of the District Court in Karvina, file

no. 7 T 156/97, he had already been convicted of another criminal act

of robbery under § 234 para. 1 of the Criminal Code and sentenced to

imprisonment of two years, which had been suspended for a trial period

of three years, afterwards, however, on 30 May 2000, he was ordered to

serve the sentence, from which he had obtained conditional release on 30

October 2000.
 

By its 25

September 2002 judgment, file no. 5 To 422/2002, Regional Court in

Ostrava rejected on the merits the complainant’s appeal against the

first instance court’s judgment of conviction.  By its 6 May 2003

ruling, file no. 5 Tdo 363/2003, the Supreme Court rejected as

manifestly unfounded, pursuant to §265i para. 1 lit. e) of the Criminal

Procedure Code, the complainant’s extraordinary appeal against the

appellate court’s judgment.
 


III.
 

The

Constitutional Court requested a statement of views from the Supreme

Court, the Regional Court in Ostrava, the District Court in Karvina, the

Supreme State Attorney, the Regional State Attorney for Ostrava, and

the District State Attorney for Karvina.
 

In

its 21 October 2003 statement of view, file no., 5 Tdo 363/2003, the

Supreme Court stated that in adjudging the extraordinary appeal it did

not find that the contested decision suffered from any defects.  It

declared that the complainant has a marked inclination towards the

commission of criminal acts, that he committed the incriminating acts

during the trial period after his suspended sentence, and that he

committed a further criminal act during his parole period following his

conditional release.  The appellate court is of the view that the

classification of the complainant, under § 41 para. 1 of the Criminal

Act, as an especially dangerous recidivist was correct, in view as well

of the character of the complainant’s conduct in the previous case and

in the case under consideration.
 

In

its 30 April 2004 statement of views, the Regional Court in Ostrava

asserted that, in his constitutional complaint, the complainant has

merely repeated the arguments to which the ordinary courts have

satisfactorily responded in their decisions.  It considers that the

material elements of especially dangerous recidivism were fulfilled by

the repeated committing of especially serious criminal offenses within a

brief period following the previous conditional release from serving

his sentence of imprisonment, as well as by the intensity of the

criminal conduct.  On these grounds the regional court proposes the

constitutional complaint be rejected on the merits as unfounded.
 

The

District Court in Karvina did not avail itself of its right, as a

secondary party, to give its views on the constitutional complaint.
 

Both

the Supreme State Attorney, in its 4 September 2003 statement of views,

file no. 1 NZo 28/2003, and the Regional State Attorney for Ostrava in

its 27 April 2004 statement of views, file no. 2 KZt 1853/2002-25,

waived their status as secondary parties to the proceeding on the

constitutional complaint.  In its 26 April 2004 statement of views, file

no. 1 Zt 91/2002, the District State Attorney for Karvina expressed the

opinion that the brief period of time which has passed since the

complainant’s previous conviction considerably increases the level of

danger for society of the criminal act; therefore, the ordinary court

decisions must be deemed to be lawful.
 

The

complainant and all other parties and secondary parties consented to

the Constitutional Court deciding without holding a hearing.  In view of

what has been stated and, further, in light of the fact that the

Constitutional Court is of the view that further clarification of the

matter cannot be expected from a hearing, an oral hearing was dispensed

with in this case (§ 44 para. 2 of the Act on the Constitutional Court).
 


IV.
 

The

conditions for the imposition of a sentence of imprisonment upon an

expecially dangerous recidivist are laid down in § 41 of the Criminal

Code as follows:

„(1) A perpetrator who has already been

convicted of an especially serious intentional crime and once again

commits that same or some other especially serious intentional crime,

shall be considered as an especially dangerous recidivist, if that

circumstance, due to its gravity - particular in view of the length of

time which has elapsed since his most recent conviction, substantially

increases the level of danger of this crime to society.
  (2)

Especially serious crimes are those criminal offenses listed in § 62, as

well as all intentional crimes for which this Act prescribes a

punishment of imprisonment with a maximum sentencing range of at least

eight years.“

A basic issue in the present case is whether the

repeated commission of the criminal offense of robbery in the year 2002

(that is, after he was already convicted and sentenced for the same

criminal offense, committed in 1997), should be adjudged a circumstance

which, due to its gravity – in particular in view of the length of time

which has elapsed his most recent conviction, substantially increases

the level of danger to society of this crime; in other words, whether

the substantive conditions for especially serious recidivism were met.
 


V.
 

In

making an overall assessment in this case of the substantive conditions

for especially dangerous recidivism, the Constitutional Court

ascertained the following facts from the criminal file:

A) It was

necessary, first and foremost, to adjudge the nature of the criminal

offenses of theft, previously or presently committed, in relation to

which recidivism was considered:
aa) From the 2 July 1998 judgment

of the District Court in Karvina, file no. 7 T 156/97, the

Constitutional Court ascertained that in the past the complainant had

committed the ongoing criminal offense of robbery in the form of two

attacks:
 

1. On 22 May 1997,

following an argument and while intoxicated, he forced his mother, Marie

Adamová, to give him 500,- Kč by threatening that if she did not give

him the money he would throw her from her seventh apartment window and

further that he shoved her and held her by her clothes.
 

2.

On 31 May 1997, following an argument and while intoxicated, he forced

his mother, Marie Adamová, to give him first 200,- Kč, and then 250,-

Kč, by waving his arms in front of her face and, with a kitchen knife in

his hands, threatening to kill her.
 

For

these acts the complainant was, in the above-mentioned judgment, found

guilty, under § 234 para. 1 of the Criminal Code, of the criminal

offense of robbery and sentenced to imprisonment for two years, which

sentence was suspended for a trial period of three years; in addition

thereto, he was ordered to receive outpatient treatment for alcohol

dependancy.
 

Even though it

is self-evident that these acts he committed are very blameworthy and

testify to the complainant’s bad human and social characteristics, it

must be taken into account that, in character, they differ from the

usual criminalogical profile of a typical robbery.  The complainant’s

antisocial conduct in these cases was heavily influenced by his dismal

personal situation – unemployment and material want, dependence on

alcohol, as well as the ill effects from quarrels and from familial

disagreements with his mother.  The overall constellation of these acts

is reminiscent rather of the model of deeply disturbed and conflictual

family relations and of family violence.  The complaining witness’

actual conduct following the act, as well as in the course of the

criminal proceeding, attest to the interpersonal conflicts underlying

these events.  In the complainant’s pre-trial hearing, his mother, Mária

Adamová, testified as a witness.  At the trial, however, she refused to

testify and stated that she would like to withdraw the criminal

complaint against her son and and that her purpose in making the

complaint was merely so that someone would have a talk with her son and

that he would be frightened.  In its judgment of conviction, the court

also took into account the complaining witness‘ conciliatory attitude,

as shown in the reasons it gave for imposing upon the complainant, to

teach him a lesson, a mere sentence of imprisonment at the very lower

end of the range of possible punishments and conditionally suspended the

sentence.
 

The act of

robbery, described above, committed in two ongoing attacks, can be

characterized by the relatively minor degree of physical violence:  they

resulted in no bodily harm and in essence were predominantly threats to

use violence.  The value of the items stolen was small (950,- Kč).
 

ab)

As was ascertained from the file of the District Court in Karvina, file

no. 7 T 39/2002, in the newly case, committed on 15 January 2002 in

Český Těšíň, the factual basis of the criminal offense of robbery

consisted in the fact that the complainant hit the complaining witness

in the face with his fist, upon which the complaining witness fell to

the ground, at which point the accomplice Jiří Jadamus leaned over the

complaining witness, began searching through his clothing, and pulled

from the pocket of his jacket his wallet with the amount of 1.650,- Kč

and his identity documents; when, during the search, the injured party

began to resist, the complainant kicked him in the ribs with his shoe

(instep), after which both accomplices left the scene of the crime.
 

Even

though the degree of bodily force was greater on this occasion than on

the previous occasion, it was in no sense particularly high.  The

complaining party, Ivan Gazdík, did not suffer any bodily injury; in his

testimony in the main trial on 3 May 2002 he described the physical

attack as consisting in a blow by the fist to the lower jaw and a kick

with his shoe (instep) into the ribs; „it was not, however, in any way a

powerful blow“ (No. 1. 98 of the criminal file).  That the complaining

party himself did not personally assess the act as terribly serious, is

attested to by the fact that he reported the act, which occurred at 1:30

a.m, only at 1:40 p.m..  Moreover, as the witness, Rudolf Trombík,

stated, the complaining witness confided in him that he reported the

offense primarily due to the fact that all of his identity documents

were stolen.
 

The amount of money stolen in the course of this act (1.650,- Kč) was not high.

B)

In was in this case also appropriate to take into account the number,

type, and level of prior convictions and sentences imposed, the overall

amount of time served pursuant to those sentence, and the length of the

intervals between them.  As was ascertained from a copy of the

complainant’s criminal record, prior to his most recent conviction, when

he was classified as an especially dangerous recidivist, he has been

convicted a total of three times:
1.    in the 18 April 1997 judgment

of the District Court in Karvina, file no. 7 T 54/97, he was convicted

of criminal offences relating to property (§ 247 para. 1 and § 257 para.

1 of the Criminal Act) and given a suspended sentence of 4 months

imprisonment with a fifteen-month trial period.  On 3 February 1998,

this punishement became subject of an amnesty;
 

2.  

 in the 2 July 1998 judgment of the District Court in Karvina, file no.

7 T 156/97, he was convicted, pursuant to § 234 para. 1 of the Criminal

Code, of the criminal offense of robbery and was given a suspended

sentence of two years imprisonment, with a three-year trial period. 

Afterward, he committed a further criminal offense (stated in the

following point three), and on 30 May 2000 a decision was made ordering

that he serve his sentence, from which on 30 October 2000 he was

released on parole lasting four years.  This conviction and sentence in

particular were taken into account when making the classification of

especially dangerous recidivism in the decisions contested in the

constitutional complaint;
 

3.  

 in the 5 April 2000 judgment of the District Court in Karvina, file

no. 7 T 33/2000, he was convicted, under several provisions of the

Criminal Act, under § 202 para. 1, of the criminal offense of

hooliganism, under § 257 para. 1 of damage to another’s property, under §

221 para. 1, of causing harm to a person’s health, under § 197a, of

violence against a group of inhabitants and against an individual, and

under § 171 para. 1 lit. d), of thwarting the enforcement of an official

decision, and was sentence to an unconditional 14-month term of

imprisonment; on 30 October 2000 he was released on parole lasting four

years.

Several facts that are relevant for the assessment of the

material elements of especially dangerous recidivism become evident from

a recapulation of the prior convictions and sentences served in

relation to the adjudicated criminal offense of robbery:
-    only in

a single previous case was the complainant convicted and sentenced for a

criminal act which can be classified, pursuant to § 41 para. 1 of the

Criminal Act, as an especially serious intentional criminal offense; the

case currently being adjudicated is thus his second conviction for an

especially serious criminal offense;
-    more than four and one-half years passed between the commission of these two criminal offenses;
-  

 the total period of time which the complainant spent serving sentences

of imprisonment was approximately five months; before serving out his

sentence, he was released on parole;
-    The prior criminal offenses for which the complainant was convicted were of a
divergent

nature, in two cases he was convicted of violent crimes; as can be

concluded from the types and length of sentences imposed, these criminal

offenses were not adjudged in specific cases as being especially

dangerous, and he was even given merely a suspended sentence of

imprisonment for the first criminal offense of robbery he committed.

C)

The personality of the convicted person, his overall personal profile,

his character and psychological attributes, age, etc. are crucial

considerations which should have been taken into account in evaluating

the substantive conditions of especially dangerous recidivism.
 

As

the fact-finding first instance court declares in its judgment, the

convicted person was not well known in his place of residence, and has

once, in 1999, been the subject of a misdemeanor proceeding.  At the

time the most recent criminal offence was committed, he was unemployed

and lived on social support payments.  He has been sentenced three times

by a court, two of those were suspended sentences of imprisonment.
 

At the time the incriminating criminal offense of robbery was committed, he was 24 years old.

 

The

ordinary courts did not ascertain any further personal characteristics,

from which the especial dangerousness of a perpetrator can be

determined.
 


VI.
 

As

the Constitutional Court has already many times pointed out, in

principle it is not empowered to intervene into the decision-making of

ordinary courts, as it is not the apex of their court system (compare

Art. 81, Art. 90 of the Constitution).  As long as courts proceed in

accordance with the Part Five of the Charter, the Constitutional Court

may not arrogate to itself the right of supervisory review of their

decisions (Art. 83 of the Constitution).  On the other hand, it is

empowered, and even obliged, to adjudge whether a proceeding was on the

whole just and whether a complainant’s constitutionally guaranteed

fundamental rights or basic freedoms have not been infringed in it.
 

According

to Art. 36 para. 1 of the Charter everyone may assert, through the

legally prescribed procedure, his rights before an independent and

impartial court or, in specified cases, before another body.  According

to Art. 39 of the Charter only a law may designate the conduct which

shall constitute a crime and the penalties or other detriments to rights

or property which may be imposed for committing them.
 

The

Constitutional Court considered all parts of the judgment and the

reasoning of the contested decisions in the light of the just delineated

constitutional framework and determined that the constitutional

complaint is well-founded.
 

The

Constitutional Court determined that the ordinary court decisions

categorizing the complainant, under § 41 para. 1 of the Criminal Code,

as an especially dangerous recidivist resulted in the infringement of

the complainant’s constitutional rights, as the conclusion that in his

case the substantive requirement for especially dangerous recidivism was

fulfilled, that is, that there has been a substantial increase in the

level of danger of the criminal offense for society, is in extreme

incongruity with the established factual circumstances.
 

In

highly regarded criminal law literature, it is emphasized that, when

judging this condition, it is necessary also to take into consideration

circumstances other than the length of time which has passed since the

last conviction, circumstances determinative of the level of danger of

recidivism for society, for example, the manner in which the criminal

conduct was committed, the harm caused both now and by the earlier

criminal conduct, the amount, type and extent of previous punishments,

the motives and reasons which led to the recidivism.  Weighty

considerations include an overall evaluation of the perpetrator’s

character and personality, his overall personal profile, features of his

character and psychological attributes, age, etc. (compare Novotný, O.,

et. al., Substantive Criminal Law I – The General Part, 4th ed.,

Prague, ASPI 2003, p. 360).  It is also significant to ascertain how

many times the perpetrator has been punished in the past for especially

serious crimes, for how many criminal offenses he was punished, and for

how many criminal offenses he is now being condemned, what is the total

amount of time he was incarcerated in the past, what is the time

interval between times in prison, etc.  It is also important to evaluate

the consequences of the crimes.  In evaluating the substantive

condition of especially serious recidivism, the concrete level of danger

of the criminal offenses, both the previous and the currently

prosecuted one, must be assessed.  One must also take into account the

significance and seriousness of all criminal offenses for which the

perpetrator has previously been punished, his conduct during

incarceration, his manner of life in the periods between criminal

offenses and punishments, the length of imprisonment previously imposed

as well as the duration of actual incarceration, and the commission of

other criminal offenses in the decisive period (compare Šámal, Púry, and

Rizman: The Criminal Code – Commentary, 5th ed., Prague, C.H. Beck,

2003, p. 347).
 

Analogical

conclusions on the problem of judging the substantive condition for

especially dangerous recidivism have also been adopted in the constant

jurisprudence (compare, for example, the case decision no. 32/2001

Coll., criminal decisions).
 

The

Constitutional Court entirely concurs with these views expressed in

scholarly literature and in the decisional law and observes that in the

instant case certain relevant criteria, determinative for the

substantive condition of especially dangerous recidivism, were not taken

into account.  The Constitutional Court also considers it necessary to

advert to numerous contexts, of a criminal policy and historical nature,

of the institute of especially dangerous recidivism.
 

There

is no doubt that it best corresponds to the principles of just

punishment and of the equality of citizens before the law in a law-based

state if the regular cases of „standard“ criminality are prosecuted in

the framework of the „normal“ criminal sentencing range, as laid down in

the special part of the criminal code.  The legislature expresses

therein the categories of degrees of danger to society of certain types

of criminal delicts and provides state bodies participating in the

criminal process a settled framework within the confines of which they

must mete out a concrete punishment, taking into consideration all

circumstances of the case.  For the legislature to lay down in this

manner the criminal sentencing range best satisfies the principle nullum

crimen, nulla poena sine lege, the principle of the equality of

citizens before the law, and the principle of the predictability of

court decision-making.
 

Deviations

from the general criminal sentencing range, either in legislation or in

applicational practice, must be founded upon entirely exceptional and

duly justified circumstances.  The institute of especially dangerous

recidivism under § 41 and following of the Criminal Code is just such an

extraordinary institute and for that reason alone it is necessary when

applying it to proceed very carefully, and the conditions therefor must

be interpreted restrictively.
 

The

criminal policy purpose of this legal institute is to prosecute more

severely „incorrigible“ delinquents who repeatedly perpetrate especially

serious criminal offenses.  The exceptional severity of the punishment,

which pursues preventive and repressive aims, is justifiable in this

case because the perpetrator, although he has already, by being punished

in the past, received appropriate warning, obstinately repeats

especially dangerous anti-social attacks the blameworthiness of which

must be notoriously manifest to him.  In such cases, the imposition of

an intensified punishment can be warranted by considerations of general

and individual prevention.
 

In

cases where the repeated commission of criminal acts does not

substantially increase the level of danger for society of a criminal

offense, a sufficiently rational reason cannot be found as to why

repeatedly criminal conduct should result in the infliction of an

especially intensified sentencing range; in such cases, in order to

fulfill the aims of the the Criminal Code, it suffices to mete out

punishment within the framework of the „normal“ (that is, not increased

by one-third) sentencing range.  The Constitutional Court recalls that

the sentencing range laid down for the criminal offense of theft in §

234 para. 1 of the Criminal Code prescribes imprisonment for from two to

tens years.  In the vast majority of cases, this wide range and high

maximum permissible sentence enables courts to make a sufficiently

sensitive differentiation in the imposition of specific sentences and

suitably to perceive the level of danger to society of the act.  The

Constitutional Court is of the view that, in the case before it, that

basic sentencing range allows for the imposition of a proportionate and

just punishment without it being necessary to resort to an extraordinary

increase of the maximum permissible term of imprisonment and impose a

punishment in the upper half of the increased criminal sentencing range

pursuant to § 42 of the Criminal Code.
 

Just

in passing it is fitting to call attention to the historical

circumstances of the Czech legal rules concerning especially serious

recidivism, which went through an instructive historical development. 

This institute was introduced into Czech criminal legislation in 1961 by

the Criminal Code, No. 140/1961 Coll., in a more extensive form then

exists today.  Apart from the prosecution of recidivism of especially

serious criminal offenses, the then valid wording of § 41 para. 1, lit.

b) of the Criminal Code allowed in addition for the prosecution of the

„continual perpetration of intentional crimes of the same nature“, hence

even of criminal social seriousness, which did actually sometimes

occurred in the criminal justice practice of that time.  In the new

social and political conditions that prevailed after 1989, this

situation was criticized as exaggerated criminal repression, so that an

amendment to the Criminal Code, effected by Act No. 175/1990 Coll.,

reformulated § 41 para. 1 of the Criminal Code such that it restricted

the impact of the institute of especial dangerous recidivism on

especially serious intentional criminal offenses.
 

It

should be remembered that the institute of especially dangerous

recidivism was characteristic of criminal legislation in former

East-Bloc countries, and, after the political changes, in the majority

of those countries it was eliminated during the course of the last

decade of last century.  In Western European countries having a

continental legal system, this institute traditionally has not been and

currently is not found.  Naturally it is true that recidivist criminal

conduct continues to be considered all over the world a very serious and

dangerous phenomena which justifies the resort to a special legislative

solution making stricter the criminal prosecution of recidivists, for

example by qualifying recidivism as an aggravating circumstance, a

condition for making more severe the regime of imprisonment and for

making more difficult the conditions for release, etc.; in general,

however, it is considered sufficient to mete out punishment within the

framework of the „normal“ sentencing range.
 


VII.
 

The

Constitutional Court observes that it has already in its previous

case-law concerned itself with the criteria for assessing the subtantive

conditions for especially dangerous recidivism.  In particular in its

11 July 2002 judgment, file no. III. ÚS 701/01, it expressed the view

that an ordinary court conclusion that a perpetrator committed a

criminal offense as an especially dangerous recidivist must be

persuasively proven and substantiated, also because such a finding has

considerable influence on the qualification of criminal conduct with an

acute impact on the type and extent of the punishment imposed.  Within

the framework of the substantive conditions for especially dangerous

recidivism, it is necessary to evaluate in a responsible manner the

concrete level of danger, both of a previous criminal offense, as found

by a court in the past, and the one currently being prosecuted,

according to the standards laid down in § 3 para. 4 of the Criminal

Code.
 

In its constant

decisional practice the Constitutional Court defined the conditions in

which the incorrect application of ordinary law norms by ordinary courts

would result in the infringement of constitutionally-guaranteed rights

or freedoms (on this point, compare, for example, the judgment of the

Constitutional Court in the matters file no. III. ÚS 173/02 and file no.

I. ÚS 733/2001).  One of them is the case of the arbitrary application

of an ordinary law norm on the part of an ordinary court in the

situation that the ordinary court’s legal conclusion is „in extreme

incongruity with the factual and legal determinations that were made“

(for example, III. ÚS 84/94, III. ÚS 166/95, I. ÚS 401/98, II. ÚS

252/99, I. ÚS 129/2000, I. ÚS 549/2000, III. ÚS 694/02).  It is the

Constitutional Court’s conviction that the substantive requirements for

an especially dangerous recidivist were not fulfilled in this case, and

consequently such extreme incongruity was found in this case as well.
 

Therefore,

the Constitutional Court had no alternative but, pursuant to § 82 para.

2 and 3 lit. a) of the Act on the Constitutional Court, to quash the

decisions contested in the constitutional complaint for violating Art.

36 and Art. 39 of the Charter.
 

In

further proceedings following the Constitutional Court’s quashing of

the decisions, the ordinary courts will be bound, in the sense of § 314h

of the Criminal Code, by the legal proposition that the complainant’s

criminal offense may not be qualified, under § 41 para. 1 of the

Criminal Code, as a criminal offense committed by an especially

dangerous recidivist.

Notice: A Constitutional Court decision can not be appealed.

Brno, 13 May 2004