Pl. ÚS 5/25
The Constitutional Court has rejected a petition seeking to annul certain provisions of the so-called Lex Ukraine VII, which introduced the new criminal offence of unauthorised activity on behalf of a foreign power. The legislative process leading to the adoption of the challenged provisions did not exceed the bounds of constitutionality. The facts of the newly introduced offence can be interpreted in a constitutionally compliant manner. The requirement for clarity and certainty in the definition of criminal offences (nullum crimen sine lege certa) has been met in this instance. The rules of criminal liability, even if contained in broadly formulated norms, may be further refined through subsequent case law. The Constitutional Court also emphasised the importance of the principle of defensive democracy.
The petitioner, a group of 24 Senators, challenged the provisions of the so-called Lex Ukraine VII that established the new criminal offence of unauthorised activity on behalf of a foreign power. The common denominator of the challenged statutory provisions is the amendment to the Criminal Code and the Code of Criminal Procedure in connection with the introduction of this new offence, which is incorporated in three variations under Section 318a of the Criminal Code. The group argued that the legislative process was not constitutionally compliant and that the regulation failed to meet the requirements of certainty and predictability expected of a criminal law norm.
The Plenum of the Constitutional Court (Justice Rapporteur Lucie Dolanská Bányaiová) rejected the petition.
While the legislature adopted the new criminal offence, the legislative process was questioned and challenged before the Constitutional Court. According to the Court, although the legislative process was not flawless, it did not step outside the boundaries of constitutionality when viewed in light of existing case law. Consequently, the Constitutional Court proceeded to a substantive review of the constitutionality of the challenged Section 318a of the Criminal Code.
It is up to the legislature to decide which conduct the State wishes to prevent through criminal law and which acts it will criminalise. The formulation of criminal policy is the prerogative of the legislative body, not the Constitutional Court.
The elements of the criminal offence of unauthorised activity on behalf of a foreign power reflect the legislature’s conviction that such conduct cannot be effectively combated (or prevented) through means other than criminal law. According to the explanatory memorandum and the submission report for the amendment, the previous legal framework could only penalise certain aspects of cooperation with a foreign power that are undesirable to the State. Under the regulations in force during the drafting of the challenged provision, “cooperation” was, for instance, punishable only if it coincided with the abuse of power by a public official or the unauthorised handling of personal data. Cooperation with a foreign power does not necessarily entail only intelligence activities aimed at acquiring and transmitting information; it can also take the form of preparatory acts (e.g., building an agent network for a foreign power, mapping decision-making processes in public administration). These can subsequently lead to activities aimed at influencing the decision-making of public authorities, swaying the public through the dissemination of alarming news, or even violent criminal activity. The criminal acts contained in the previous version of the Criminal Code, which might have applied to such resultant conduct, did not provide comprehensive protection for State interests. Therefore, in criminalising this behaviour, the legislature respected the principle of the subsidiarity of criminal repression. Thus, in the view of the Constitutional Court, the new regulation is not unacceptably repressive. As with any criminal offence, only significant acts – those reaching a certain threshold of social harm requisite for a criminal offence – will be prosecuted.
The Constitutional Court highlighted the importance of the principle of defensive democracy. If opponents of democracy and its foundational values are prepared to attack it, the democratic regime must likewise be prepared to defend itself against such assaults. The new criminal offence of unauthorised activity on behalf of a foreign power can serve this very purpose.
The Constitutional Court did not agree with the objection regarding the vagueness of the legislation, which the petitioner claimed reached the level of impermissible unconstitutionality. The Court acknowledged that the rules of criminal liability – even those contained in broadly drafted provisions – may be refined through subsequent judicial practice. Individual facts of criminal offences must be distinguishable from one another so that each specific act can be matched to the facts of a crime that best correspond to it. Simply put, this represents the fundamental constitutional requirement stemming from the nullum crimen sine lege certa principle (the requirement for clarity and precision in defining criminal offences), which has been fulfilled in this case.
Although the basic facts of the new offence [particularly in the variants set out in Section 318a(1)(a) and (c) of the Criminal Code] are formulated rather broadly, it is possible to interpret them in a constitutionally compliant manner. Regarding the perpetrator’s intent, it must be directed towards conduct that is realistically capable of endangering or damaging the protected interest, and it must do so directly, rather than in a merely remote (abstract) way. The Constitutional Court has provided fundamental guidelines for a constitutionally conforming interpretation, drawing upon the structure of the Criminal Code and preparatory works, among other things. The primary limits ensuring the certainty of the challenged regulation and the criminal liability of the offender are the specific intent, the involvement of a foreign power, and the unauthorised nature of the activity (meaning it cannot be a legal activity, such as cooperation with foreign intelligence services within the meaning of the Intelligence Services Act).
If the elements of a criminal offence can be interpreted in a way that makes it clear which conduct can be criminalised, the constitutional requirement for the certainty of a (substantive) criminal norm is met. The Constitutional Court relies on the principle of the constitutionally compliant interpretation and application of legal regulations. In a situation where a statutory provision allows for two different interpretations – one in accordance with the constitutional order and the other not – there is no ground for its annulment. When applying this new criminal offence, it will be the task of public authorities to interpret it in a constitutionally compliant manner. It is now up to the bodies in charge of criminal proceedings to adopt such a constitutionally conforming interpretation; in doing so, they may utilise the guidance provided by the Constitutional Court.