Nature of the offence and its features

Quick overview

In order for an act to constitute a criminal offence, all the elements of the offence must be met. Specifically, there must be a protected interest (object), the offender’s conduct and its consequence (objective aspect), the person criminally responsible (subject) and the offender’s culpability (subjective aspect). If any of the elements are missing, the person may not be criminally liable.

• Every criminal offence has precisely defined statutory elements.
• It is not enough to have damage or a problematic consequence.
• The intention or negligence of the perpetrator is also decisive.

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What is the act and the facts of the crime

An act is a legal term that generally refers to an action or event that has important legal consequences. These can be acts or events that can lead to legal consequences (such as the creation of obligations or rights to compensation). In criminal law, an act is then understood as a specific act or event that may qualify as a criminal offence.

The offence of a criminal offence is a legal concept that refers to a set of features (both objective and subjective) that define a specific criminal offence under the Criminal Code. These are the conditions that must be met in order for a person’s conduct to qualify as a criminal offence and to be punished for it.

The facts of the offence are mainly based on the Criminal Code. Individual criminal offences are described in the Criminal Code by means of specific features that must be fulfilled in order for the perpetrator to be held criminally liable.

The function of the elements of the offence is to ensure that criminal liability is precisely defined and that the principle of legal certainty and predictability of the law is respected. These features therefore ensure that the different types of offences are clearly defined. The basic features of the offence include:

Object

An object is a public interest or value protected by criminal law, such as life, health, property, public order, etc. The selection of the object serves to determine what is to be protected and in what way.

Example: life, health and safety of road users. In this case, the aim is to protect the health and life of other people on the roads, as well as their property (e.g. cars).

Objective side

The objective aspect of the offence has three components:

Conduct

Represents specific conduct that is contrary to a legal norm(e.g. physical assault, theft). It can be either active behaviour, where the offender does something (e.g. shooting, robbery) or omission, where the offender fails to do something that he or she should have done (e.g. failure to render assistance, negligence).

Example: a driver knowingly gets behind the wheel while under the influence of alcohol in violation of a law that prohibits alcohol behind the wheel. Here, the conduct is manifested as an active act where the driver performs the activity of driving.

At the same time, the circumstances of the conduct are also looked at. In fact, not in all situations is an act that could be considered criminal actually a criminal offence. These are in particular so-called exclusionary circumstances. These are situations where a person acts, for example, in extreme necessity (e.g. by acting criminally, he or she prevents a situation that would have had much worse consequences if he or she had not acted) or in necessary defence (e.g. when a person prevents an attack on another person by physical violence).

In practice, we often see people confusing criminal offences with merely ‘bad’ or unethical behaviour. However, the police must prove all the legal elements of the offence. For example, it is common to find situations where damage has been caused but intent or a causal link between the act and the consequence cannot be proven.

Consequence

This is a harmful outcome that results from the perpetrator’s action (or inaction) (e.g. injury, loss of property). There are two basic types:

1. Disruptive consequence: occurs when the perpetrator’s actions cause concrete and actual damage or injury to the protected object. This type of consequence is characterised by the fact that there has been a real change in the legally protected interest. An example would be theft. When the perpetrator steals a movable object, which causes property damage to the owner.
2. Threatening consequence: occurs when the perpetrator’s conduct itself creates a real danger or threat to the protected object without necessarily causing actual damage or harm. Thus, the conduct itself constitutes the commission of the offence. An example is endangerment under the influence of an addictive substance, where a driver drives a vehicle under the influence of alcohol, thereby endangering other road users, even if no accident occurs.

Example: a drunk driver loses control of the vehicle, crashes into another car and causes serious injury to another driver. This causes real and concrete injury to the victim ( = impairment consequence). However, drink-driving itself already constitutes a danger to other road users because it creates a real risk of an accident, even though it may not necessarily occur ( = endangerment consequence).

Causation

Causation (causal nexus) is the relationship between the offender’s conduct and the consequence. It must be shown that it was the perpetrator’s conduct that led to the harmful consequence.

Example: it must be proved that drink-driving led to the accident and the subsequent injury to the driver of the other vehicle. In this case, it is clear that the driver’s drunkenness directly affected his ability to drive and was the cause of the accident.

Proving causation is a frequent cause of litigation in criminal proceedings. If you are unsure whether the police or prosecutor have properly evaluated your case, it may be advisable to consult with an attorney.

Entity

The subject is the person who committed the crime. In order to be criminally liable, the subject must meet the statutory requirements. Specifically, he or she must be at least 15 years old and of sound mind. Legal persons may also be criminally liable, for which the condition of imputability must be met and the act must be performed for the benefit of the legal person .

Example: the driver was over 15 years of age and of sound mind at the time of the offence. He therefore fulfils the conditions for criminal liability.

Subjective side

The subjective aspect of the offence relates to the internal psychological relationship of the offender to his or her conduct and the consequences of that conduct. The subjective aspect is key to determining criminal liability because it determines whether the perpetrator acted with intent, recklessness or other internal attitude towards the offence. In the subjective aspect, culpability must be present, which is precisely the internal psychological relationship of the perpetrator to his conduct and its consequences. The subjective aspect may be fulfilled:

1. In the case of intent, the perpetrator acts with the knowledge and will to cause a harmful consequence. The intent may be direct (the perpetrator intended to cause the consequence) or indirect (the perpetrator knew that the consequence would occur and was aware of it).
2. Negligence of the perpetrator: the perpetrator acts negligently when he neglects a duty of care which he should and could have observed, resulting in a harmful consequence. Negligence can be conscious (the actor knew of the possibility of the consequence but relied on it not occurring without reasonable grounds) or unconscious (the actor did not know of the possibility of the consequence but should and could have known).

Example: it is likely to be conscious negligence where the driver knew that his actions could cause an accident but recklessly relied on the fact that nothing would happen.

In criminal cases, fault tends to be one of the most contentious issues. Courts often address whether the offender acted intentionally or merely negligently. The difference can fundamentally affect the legal qualification and the amount of punishment.

Other necessary signs

Occasionally, some offences may have other necessary features, such as a specific place (in public) or time of the act (e.g. during an emergency).

Types of offences

There are three types of offences, which vary according to the severity of the penalty:

Basic offences

The basic offence is the basic form of the offence, which includes the typical features of the offence without aggravating or mitigating circumstances.

Example: the crime of murder = Whoever intentionally kills another shall be punished by imprisonment for ten to eighteen years.

Qualified offence

A qualifying offence includes the essential elements of the offence but contains aggravating circumstances which increase the social danger of the offence. The penalties for qualifying offences are more severe due to the greater seriousness of the offence.

Example: the offence of aggravated murder = Whoever intentionally kills another under the circumstances prescribed by law (e.g. in a particularly brutal or torturous manner or with a motive of racial, ethnic or other hatred) shall be punished by imprisonment for fifteen to twenty years or by an exceptional sentence.

A higher legal qualification may significantly increase the threatened sentence. In some cases, it can be argued that the qualifying elements have not been met.

Privileged facts

Privileged offences include the essential elements of the offence but contain mitigating circumstances which reduce the social danger of the offence. The penalties for privileged offences are more lenient due to the lower seriousness of the offence.

Example: only one offence is currently covered – the murder of a newborn child by its mother. The penalties here are not set as for the ordinary offence of murder, but are more lenient (amounting to imprisonment for three to eight years). This is because the woman may be in a specific physical and mental state after giving birth.

Summary

In order for an act to be considered a criminal offence, all the elements of the offence under the Criminal Code must be met. These include the protected interest (object), the act itself and its consequence (objective aspect), the person criminally responsible (subject) and the culpability of the perpetrator (subjective aspect). If any of these features are missing, the person may not be criminally liable. In practice, the most common disputes tend to be about fault, causation or circumstances precluding unlawfulness, such as necessary defence. There is also a distinction between basic, qualified and privileged facts, which affect the level of punishment.