Nature of the offence and its features

What is the facts of the offence

The constituent elements of a criminal offence is a legal concept that refers to a set of features (both objective and subjective) that define a specific criminal off ence under the Criminal Code. It refers to 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 function of the constituent elements of a criminal 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, theft) or omission, where the offender fails to do something 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 drunk driving. The conduct here is 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 the conduct 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).

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 a real change in the legally protected interest. An example is 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.

Entity

The subject is the person who committed the offence. To be criminally liable, the subject must meet the conditions laid down by law. Specifically, he or she must be over 15 years of age 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 may 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.

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 punishment:

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.

Privileged offence

The aggravated offence includes the essential elements of the offence but contains 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 psychological state after giving birth.

Summary

The commission of a criminal offence is a key legal concept that defines theset of features necessary for a person’s conduct to qualify as a criminal offence and for a criminal measure to be imposed for it. It provides a clear definition of criminal liability and promotes legal certainty and predictability. The basic elements of the offence include the object, the objective aspect (conduct, effect and causation), the subject and the subjective aspect. There are three types of facts: basic, qualified and privileged, which differ according to the severity of the penalty and the presence of aggravating or mitigating circumstances.