The Criminal Code and the Code of Criminal Procedure: An Explanation of Basic Terms

Quick Overview: What Is the Difference Between the Criminal Code and the Criminal Procedure Code?

The difference between the Criminal Code and the Criminal Procedure Code lies primarily in the fact that the Criminal Code defines which acts are criminal and what penalties may be imposed for them. The Criminal Procedure Code sets forth the process by which the police, the public prosecutor’s office, and the court examine, investigate, and adjudicate criminal offenses.

From Lawyers’ Experience: People often look in the Criminal Code for information on how to file an appeal or whether they can refuse to testify. However, these issues are primarily addressed by the Criminal Procedure Code. The Criminal Code, on the other hand, is used to determine whether an act meets the elements of a crime and what punishment may be imposed for it.

If you are dealing with a specific criminal complaint, charge, or summons for questioning, simply knowing the legal terms is usually not enough. Our criminal defense attorney will assess your situation, explain the next steps, and help protect your rights from the very beginning of the criminal proceedings.

What the Criminal Code Covers

The Criminal Code is the fundamental legal statute in the field of criminal law. It contains detailed descriptions of individual criminal offenses, such as property crimes (theft, fraud), violent crimes (murder), environmental crimes, economic crimes, and so on. Each crime is defined by its specific elements and criteria that must be met for the crime to have been committed.

The Criminal Code also sets forth various types of penalties for committing a crime. These include, for example, imprisonment (of varying durations) and various alternative penalties, such as a fine, forfeiture of property, disqualification from certain activities, house arrest, or a suspended sentence. Sentences are imposed based on the severity of the crime, the circumstances, and the offender’s personal profile.

The Code further addresses various other aspects of criminal law, such as criminal liability, temporal and territorial jurisdiction, preparation and attempt to commit a crime, etc.

Criminal Code – Important Terms

Let’s explain the important terms you’ll encounter in the Criminal Code:

Criminal Liability

Criminal liability is an individual’s responsibility for committing a crime. This means that a person may be prosecuted, tried, and punished under criminal law for conduct that constitutes a crime. A person of sound mind who is at least 15 years old bears criminal liability in cases of culpability. Culpability is the subjective aspect of a crime and refers to the perpetrator’s internal relationship to the consequences of their actions. We distinguish between two forms of culpability: intent and negligence.

Criminal Offense

A criminal offense is an unlawful act that the criminal code defines as a crime and that exhibits other essential characteristics specified in the law. Criminal offenses are divided into misdemeanors and felonies. Misdemeanors include all crimes of negligence and those committed intentionally where the maximum term of imprisonment does not exceed five years. Felonies include all other criminal offenses; particularly serious felonies are those for which the maximum term of imprisonment is at least ten years

Preparation and Attempted Offenses

Preparation of a crime means that someone intentionally creates the conditions for committing a particularly serious felony—that is, an intentional felony for which the law prescribes a prison sentence with a maximum term of at least 10 years. In some cases, preparation is a crime in and of itself.

An attempt to commit a crime, on the other hand, refers to an act that is directly aimed at committing the crime and that the perpetrator carried out with the intent to commit that act. An attempt is treated the same as a completed crime.

Perpetrator

The perpetrator of a crime is a person whose actions satisfy the elements of the crime, that is, a person who committed the crime (or attempted or prepared to commit it). In some cases, the perpetrator is also a person who used another person to carry out the act.

Circumstances Excluding Unlawfulness

These are specific situations in which an act would otherwise be considered a crime but, due to the circumstances, is not. Circumstances precluding criminal liabilityinclude:

• Extreme necessity: This involves averting a danger threatening a protected interest.
• Self-defense: This refers to a situation in which a person repels an imminent or ongoing attack on a protected interest.
• Consent of the victim: Applies based on the consent of another person.
• Permissible risk: This applies to those who, in the course of their employment or similar activities, engage in conduct that endangers or violates an interest protected by criminal law. It applies in cases where a socially beneficial outcome cannot be achieved by other means.
• Justifiable Use of a Weapon: This refers to a situation in which a person uses a weapon within the limits set by another legal provision (for example, a police officer in the course of their duties).

Statute of limitations

This is the period during which criminal liability applies. It begins to run as soon as a crime is committed. Its duration is determined by the severity of the crime. Certain crimes are excluded from this period, and criminal liability thus applies indefinitely. These include, for example, the crimes of treason or crimes against humanity.

Criminal Sanctions

These are imposed for the commission of criminal offenses and include penalties and protective measures. They are imposed with due regard to the nature and severity of the offense committed and the circumstances of the offender.

• Penalty: A penalty may be imposed on a person who has committed a crime. It is a form of response by the legal system to unlawful conduct, aimed at restoring the rule of law and ensuring justice. The main types of penalties include imprisonment, a fine, or a prohibition on certain activities.
• Protective measure: Its primary purpose is not to punish the offender, but to protect a specific interest, person, or property. It may be imposed to prevent further danger, protect the victim, or protect society. Examples include protective treatment, secure detention, or protective education.

What the Code of Criminal Procedure Covers

The Act on Criminal Procedure, also known as the Criminal Procedure Code, governs the procedures followed by authorities involved in criminal proceedings. This Act establishes rules for the investigation of criminal offenses, the procedures for bringing charges, and the trial process, applicable to public prosecutors, courts, and other participants in criminal proceedings. It thus constitutes the fundamental legislative framework that ensures the fair and orderly conduct of criminal proceedings.

Code of Criminal Procedure – Key Terms

Let’s take a look at important terms and their definitions:

Criminal Proceedings

Criminal proceedings are the process in which law enforcement authorities seek to determine whether a crime has been committed, identify the perpetrator, and, if applicable, impose a punishment. They consist of three phases: preliminary proceedings, trial proceedings, and enforcement proceedings.

Defendant

A defendant is a person suspected of committing a crime. Thus, it is a person against whom criminal prosecution is being conducted. Criminal prosecution is part of criminal proceedings and is initiated by a resolution.

Example: The police summon a person to provide a statement on suspicion of fraud. The Criminal Code specifies the elements that the person’s conduct must satisfy for it to actually constitute fraud. The Code of Criminal Procedure governs how the police may proceed, what rights the person summoned has, and at what point they may become a defendant.

Defendant

A suspect becomes a defendant once a trial is scheduled as part of criminal proceedings.

Defense Attorney

A defense attorney is a lawyer who provides legal assistance and represents the accused (or accused persons) in criminal proceedings. Their primary role is to defend their client’s interests and rights throughout the criminal proceedings to ensure a fair trial and compliance with procedural rules.

A resolution to initiate criminal prosecution is a crucial document. It defines the offense for which a person is being prosecuted, as well as its preliminary legal classification. If you have received such a resolution, do not delay in consulting with a defense attorney —short deadlines may begin to run as soon as it is served.

Victim

An injured party is a person who has suffered bodily injury, property damage, or non-pecuniary harm as a result of a criminal offense, or at whose expense the perpetrator has enriched himself or herself through a criminal offense.

A lawyer is not limited to representing the defendant. A lawyer can assist the victim in asserting a claim for compensation for property damage or non-property harm, in representing the victim during questioning, and in reviewing decisions made by law enforcement and judicial authorities.

Precautionary Measures

Precautionary measures serve to secure evidence, protect parties to the proceedings, prevent the accused from fleeing, or ensure the proper conduct of criminal proceedings. These include, for example, a prohibition on contact with a specific person, a travel ban, supervision by a probation officer, or the obligation to remain at a designated location.

A special type is pretrial detention, a measure that restricts the accused’s freedom and serves to ensure their presence during criminal proceedings and to prevent them from continuing criminal activity, influencing witnesses, or otherwise obstructing the investigation.

Decision

A decision is an official ruling issued by a court or a public prosecutor during criminal proceedings. It takes the form of either a judgment or an order.

Appeals

Appeals are mechanisms that allow participants in criminal proceedings, or other persons, to challenge a decision or the conduct of the deciding authority . They are divided into ordinary remedies (appeal, appellate court, and complaint) and extraordinary remedies (petition for review, complaint for violation of law, and retrial).

The most common mistake in practice: Parties to criminal proceedings sometimes confuse a complaint with an appeal, or they file an appeal only after the deadline has passed. What matters is not the name you give the filing, but its content; however, one generally cannot rely on a late filing being accepted. Therefore, it is advisable to have the decision reviewed by an attorney immediately upon receipt.

Expungement of a Conviction

Expungement of a conviction means the removal of an entry from the criminal record after a specified period has elapsed and certain conditions have been met.

How the Criminal Code and the Criminal Procedure Code Work Together

In practice, both laws are applied simultaneously. For example, if someone is suspected of theft, the Criminal Code defines the elements of theft, the conditions for criminal liability, and the possible punishment. The Criminal Procedure Code sets forth how the police gather evidence, when they may initiate criminal prosecution, how court proceedings are conducted, and how one can appeal a decision.

The distinction between substantive criminal law and procedural criminal law therefore does not mean that one set of laws could function without the other in a specific case. Only their combined application makes it possible to determine whether a crime was committed and whether guilt was proven in accordance with the law.

Summary

The Criminal Code and the Code of Criminal Procedure are two fundamental but substantively distinct criminal law statutes. The Criminal Code constitutes the core of substantive criminal law: it defines what constitutes a crime, under what conditions criminal liability arises, and what penalties or protective measures a court may impose. The Code of Criminal Procedure falls under procedural criminal law and governs the procedures followed by the police, the public prosecutor, and the court, as well as the presentation of evidence and the rights of the accused, the victim, and other parties. In a specific case, both sets of laws are applied together—one determines what constitutes a crime, and the other specifies how guilt is to be lawfully established and adjudicated.