What punishment will be imposed?

Chapters of the article

• What is the purpose of punishment?
• Circumstances affecting the amount of the sentence
• What types of punishment may be imposed?
• Punishing multiple offences
• Probation or hard time?
• Remission of sentence

You can find out the basic level of punishment in the relevant section of the Criminal Code that describes the offence. For example, for the offence of rape, the first paragraph of section 185 of the Criminal Code states that the penalty is imprisonment for six months to five years. But why do most perpetrators of this offence walk away from court with probation, and in which cases can the perpetrator “get off” with, say, seven years in prison? Or how is it possible that the perpetrator of a particular offence receives a sentence of community service, even though this is not mentioned as a possibility in the relevant section at all? A closer knowledge of the criminal law and the principles of punishment will provide the answer.

What is the purpose of the punishment?

According to legal theory,punishment has a specific purpose, according to which we distinguish its several functions:

• Educational – it is intended to make the convicted person aware of what he has done and ideally not to repeat a similar act.
• Preventive – it shows that such behaviour is not tolerated in society and should deter other potential offenders.
• Protective – punishment also has an impact on society, especially to protect it from, for example, dangerous offenders who are put in prison.
• Restorative – punishment should also restore the original just state.

In an ideal world, all the functions of punishment would be applied in the imposition of a sentence, but this is not always possible. Often the original state cannot be restored when, for example, harm to life or limb has occurred. Educating the offender cannot always be guaranteed either. However, the courts should come as close as possible to fulfilling these functions. It is therefore necessary to consider very carefully all the circumstances of the case and to get to know the personality of the offender and to impose a punishment that is truly ‘tailored’ to the situation. On the surface, it may sometimes appear that two completely different sentences are being imposed for two identical offences, but this may not be the case at all.

Circumstances affecting the amount of the sentence

When imposing a sentence, mitigating circumstances (e.g. committing the act under duress or in repelling an attack) and, conversely, aggravating circumstances (e.g. committing the act out of racial or religious hatred or in a brutal or torturous manner) are also taken into account. Committing the offence in a crisis situation or natural disaster is also considered an aggravating circumstance, which would undoubtedly apply to sentences in a state of emergency, repeatedly declared in recent times.

The basic premise, of course, is that a judge may only impose a sentence that is prescribed by law. Creativity and inventing one’s own original punishments is therefore obviously not in order, however much more interesting journalistic reports from courtrooms might be.

As a rule, the individual offences described in the criminal law have the lightest possible variant of the offence described in the first paragraph, for which the lowest penalty is imposed. In the following paragraphs, the severity of the conduct and the amount of the penalty increases.

What types of sentences may be imposed?

Courts in the Czech Republic are currently allowed to impose the following types of sentences:

• Imprisonment – one of the objectively most severe punishments that can be imposed. It is imposed on perpetrators of such offences for which no other possible remedy is available. As already mentioned above, different possible lengths of imprisonment are envisaged for different offences, depending on their gravity, up to a maximum of twenty years. Exceptional punishment allows for the imprisonment of the offender for more than twenty (up to thirty years) or imprisonment for life. The court can only impose this penalty on the offender for a particularly serious crime where the law allows it.
• House arrest – can be used for less serious crimes. The convicted person must reside in his or her home, but the possibility of employment or childcare is taken into account.
• Community service – can be imposed for misdemeanours, even if the law does not explicitly mention this punishment for each offence. Community service may consist, for example, of cleaning or maintaining public spaces and may be imposed for up to 300 hours.
• Monetary penalty – typically in property crimes, offenders are usually punished with a monetary penalty, among other sanctions.
• Forfeiture of property or other assets – this refers, for example, to items obtained by the offender through the commission of the offence or as a reward for the offence, or items used or intended to be used in the commission of the offence.
• Prohibition from acting – this may relate, for example, to a prohibition from practising as a doctor in the event of medical misconduct, and driving prohibition is also common for traffic offenders.
• Forfeiture of property
• Prohibition of residence
• Prohibition from attending sporting, cultural and other social events
• Loss of honorary titles or honours
• Loss of military rank
• Expulsion

The Czech Republic has not allowed the death penalty since 1990 .

Punishment of multiple offences

Under Czech law, if an offender commits several offences at the same time, the individual sentences are not added together, but the penalty rate of the most serious offence is taken into account and an aggregate penalty is imposed. The other offences are then treated as aggravating circumstances. The opposite approach has been taken by legislators in America, for example, where individual sentences are cumulative. This may appear to be the right course of action for some particularly despicable offenders, but on the other hand, it sometimes leads to absurd situations such as 126 years’ imprisonment or even 80 life sentences.

Another situation, however, is when a so-called joint sentence is imposed, where there is a continuation of one offence. In such a case, judges have the difficult situation of having to assess whether there has been a repetition of the same offence or whether the intention of one offence was clearly established from the outset. For example, a burglar may, quite by chance, have the opportunity to steal from the same house a month apart and there will be two separate thefts; on the other hand, it is possible to imagine an intention to rob a company account, but this will be carried out gradually, by ‘siphoning off’ small sums. In the latter case, however, it would just be a continuation of one offence.

Probation or hard time?

Thecourts can impose a sentence unconditionally, which means that it is executed immediately after the legal validity of the sentence, for example when the convicted person starts serving a prison sentence in the relevant prison on a certain date.

Conversely, suspended prisonsentences may be imposed for less serious offences. Although the court will pass the sentence, it will suspend the execution of the sentence on condition that the convict “mows the latin”, i.e. behaves properly, during the specified period. Only imprisonment not exceeding three years can be suspended. In accordance with the purpose of the sentence as stated above, the courts will do so if it appears more likely that the offender’s previous orderly life has been an aberration and the execution of the sentence is unnecessary in view of the circumstances and the offender’s personality.

The level of sentences may also be influenced to some extent by the social climate which makes certain offences seen as less serious. This may also be the reason for the already mentioned fact that almost half of rape offenders go home from court with only a suspended sentence, even though the most serious possible course for this offence allows for up to 18 years’ imprisonment.

Remission of sentence

The Criminal Law also allows judges to waive the punishment of an offender under certain conditions. This can be done, for example, in the case of negligent offences where the offender regrets the act and shows a desire to make amends. In the case of a sentence already being served, half of the sentence may be waived on request if the offender fulfils the conditions laid down by law. In the case of imprisonment, account shall be taken of behaviour in prison, fulfilment of obligations and the guarantee of a proper life and reform in the future.