What is an offence and when is it committed?

Chapters of the article

• What constitutes an offence?
• Liability of a natural person for an offence
• Division of offences
• Adjudication of offences

What do we call an offence?

The official definition is that a misdemeanour is a socially harmful unlawful act that is expressly designated as a misdemeanour in the law and that has the characteristics set out in the law.

It is important to distinguish offences from misdemeanours, which may in some cases be very similar in nature but are considerably more socially dangerous. The difference between a misdemeanour and a criminal offence may be determined by a very specific threshold – for example, in the case of theft, the value of the stolen goods is less than CZK 10 000.

The basic regulation and specific offences can be found in the Act on Certain Offences. However, a number of other offences are defined by specific laws, such as the Act on Road Traffic, the Act on Air Protection or the Act on State Heritage Protection. The process by which an offence is dealt with is called an offence procedure and its course is described in the Act on Liability for Offences and Procedure thereon.

Theoffence can be committed by a natural or legal person. However, the liability for committing offences differs somewhat for both types of persons. In the case of offences committed by non-business persons, it is necessary to examine the culpability, which may be in the form of intent or negligence.

In the past, we have seen a division between misdemeanours and administrative offences, which could be committed by natural or legal persons. More recent legislation has simplified and clarified this area of law. Nowadays, we have seen the unification of all these categories under the single term ‘offence’.

From the introductory characteristics we can deduce the individual features of an offence which must occur simultaneously in order for certain conduct to be classified as an offence. These are:

1. unlawfulness – that is, contravention of the legal order and breach of a duty imposed by or under the law. However, the law simultaneously presupposes and provides for situations which exclude unlawfulness. Similarly to criminal offences, these are the so-called circumstances excluding illegality, which include necessary defence, extreme necessity, consent of the victim, legitimate use of a weapon and permissible risk.
2. social harmfulness – i.e. a threat to or violation of an interest protected by law. In most cases, the social harmfulness of an offence does not need to be considered as a separate feature, as it is included in the offence itself.
3. anexplicit indication in the law that it is an offence – for example, a definition in a decree, internal directive or other legal regulation is not sufficient.
4. it isnot a criminal offence – if an act would constitute a criminal offence, it must be punishable by criminal law.
5. the legal theory distinguishes general features, i.e. the object (the interest protected by law), the objective aspect (the act, its consequence and the causal link between the act and the consequence), the subject (i.e. the person of the perpetrator) and the subjective aspect (this includes the question of culpability).

If a given act does not contain a single one of the above mentioned features, then it is not an offence.

Liability of a natural person for an offence

In order for a natural person to be liable for a particular offence, the following essential elements must be met: culpability, sufficient age and insanity or lack of insanity at the time of the offence.

Culpability may take the form of intent and negligence. In essence, it is the relationship of the offender to his conduct and its consequence.

In the case of intent, the offender intended to violate or endanger a legally protected interest by his conduct (i.e. direct intent) or, although he did not intend to do so, he knew that this interest would be violated and was aware of this (i.e. indirect intent).

Example: intent is presumed by law, for example, for the offence of intentionally giving “false or incomplete testimony in administrative proceedings”. For example, imagine a situation where Mr. Václav was called upon to give a witness statement concerning a disturbance of the night peace allegedly committed by his friend Petr. Mr Václav would, however, deliberately downplay the situation and omit some episodes of the night-time adventure altogether, even though he would still have a vivid memory of them. In doing so, however, he might also have committed an offence. If, however, he had omitted to mention a fact by mistake, there would be no offence. However, proving intent in such a case may not be easy.

Negligence is a situation in which the offender either knew that he or she might violate or endanger a legally protected interest, but without reasonable grounds relied on the fact that this would not happen (i.e. conscious negligence), or did not know that his or her conduct might endanger the interest in question, although he or she could and should have known this (i.e. unconscious negligence).

For the vast majority of offences, it is generally sufficient for the offender to commit the act negligently, unless the law specifically refers to intent.

Example: Mr Radek is not a big fan of dressing up and usually dresses very modestly at home. This summer he decided to extend his habit to his garden area. He had not seen any neighbours all day and thought that they must have gone on holiday. So he went to his garden pool completely unclothed. However, the neighbours had prepared a secret children’s birthday party and the unexpected highlight of the party was unfortunately the children’s meeting with Mr Radek. Although Mr. Radek is otherwise a decent and orderly man in civilian life, this (unintentional) action could have been assessed as an offence of public nuisance, for which Mr. Radek would have been fined.

For the purposes of the Offences Act, the age of 15 is consideredsufficient for the purposes of the Offences Act. In other words, a person who was under 15 years of age at the time of the offence is not liable for the offence. Liability for the offence shall commence on the day following the day on which the offender reaches his fifteenth birthday.

Insanity is defined by the Offences Act as a state where a natural person, because of a mental disorder , could not, at the time of the commission of the offence , recognise the unlawfulness of his or her conduct or control his or her conduct. Typically, therefore, mental illness. An exception is, however, situations where the offender has brought himself into a state of insanity, even if negligently, by the use of an addictive substance (i.e. alcohol, narcotics, psychotropic substances or substances having a similar effect). In such a case, he/she shall be held liable for the offence.

Division of offences

Similarly to the Act on Certain Offences, the Act on Certain Offences also distinguishes individual offences according to the interest protected by the law that is violated or threatened by their commission.

Thus, we may encounter, for example:

• offences against public order (violation of the night peace, public outrage, disrespecting the position of an official, etc.)
• offences against civil coexistence (injury to honour, injury to health, etc.)
• offences against property (causing damage to other people’s property, unauthorised use of other people’s property, etc.).

However, there are many more categories. In contrast to the uniform regulation in the Criminal Code, a number of offences are defined by special laws.

Adjudication of offences

Misdemeanour proceedings are generally conducted by the municipal authority of the municipality with extended jurisdiction. In some cases, the municipal authority, the municipal or state police or other administrative authorities (e.g. the cadastral office, the Czech Environmental Inspectorate, etc.) are competent to deal with the matter.