2021/03/16 – 15 Tdo 110/2021 (summary)

Judgment of the Supreme Court of 16 March 2021, Ref. No. 15 Tdo 110/2021
(legal classification of the attempted theft, state of emergency)

The present case concerns a person who attempted to commit a theft and threatened a member of the personnel at the gas station during the state of emergency. At around 1 a.m., the accused entered the gas station, took a package of candy worth of 79,90 Czech crowns (approximately 3 EUR) and put it in his bag. The personnel of the gas station confronted him and informed him that they will call the police. The accused at first attempted to apologise and begged the personnel not to call the police. He also took out the candy out of his bag. The personnel, however, locked the door to prevent his escape before the arrival of the police. The accused started to swear towards one member of the personnel and screamed at her. She was therefore urged to call the police as soon as possible. In the meantime, the accused started to threaten her by saying that if he had the gun with him, he would kill her. In the subsequent court proceedings, the district court in Plzeň - město found the accused guilty of committing a crime - attempted theft, and an offence - dangerous threatening. Since he was already found guilty of another offence before and since he committed this act during the state of emergency, he was sentenced to two years and six months of imprisonment.

The Supreme Court, sitting as the Grand Panel of the Criminal Division, had to clarify legal classification of committing a criminal offence during the state of emergency. In particular, the Supreme Court had to provide a legal assessment of the attempted theft as a crime with the reference to Section 21 (1) and Section 205 (2) and (4) (b) of the Criminal Code since there were contrasting views on this issue from fourth and sixth Panel of the Criminal Division. The legal assessment concerned clarifying the conditions for using higher penalty for a theft as a crime (and not as an offence) during “the other event seriously threatening the life or health of people”. According to the Grand Panel, such an event includes the occurrence of the coronavirus on the territory of the Czech Republic in the pandemic extent and it was for that reason that the Czech government declared the state of emergency. It is equally true that the accused formally committed the attempted theft as a criminal offence during “the other event seriously threatening the life or health of the public”. However, the Grand Panel found erroneous legal assessment of the fourth Panel consisting of two aspects. Firstly, the fourth Panel gave a different meaning to the declared state of emergency and secondly, its assessment was based only on the temporal connection of the committed act with the event posing serious threat to the life or health of people. It did not consider whether the act had any other connection which would render qualified assessment of the act necessary.

The Grand Panel noted that the state of emergency is not “other event seriously threatening the life or health of people” since it is not an event but a result of the decision of the government which does not pose a threat to the life or health of people. On the contrary, declaring the state of emergency is either directed to eliminate such a threat or is an adequate reaction to protect the life and health of people. The conditions for ‘aggravated’ classification of the offence according to Section 205 (2) and (4) (b) of the Criminal Code are met regardless of declaration of the state of emergency, including the event such as the current pandemic situation concerning the COVID-19. The decisive aspect is the existence of such an event and not its declaration by the state of emergency. The Grand Panel refused the argumentation according to which the fault of the offender was deduced exclusively from the fact that the offender knew that the state of emergency had been declared. Therefore, it considered that regional court incorrectly used ‘aggravated’ classification of the offence based on the declaration of state of emergency. The state of emergency can only have supporting character when court considers using ‘aggravated’ classification of the offence. For example, it can serve as the indication of an event seriously threatening the life and health of people and as the possibility of deducing the fault of the offender who could and should have known about that such an event had existed.

The Supreme Court was then of the opinion that it is not sufficient that certain criminal offense is committed during the event threatening life or health of people. There must be also certain material connection between the theft committed and the event seriously threatening the life or health of people. Such material connection could be that the offender directly uses or abuses such an event to commit a criminal offence, or that this event enables or facilitates committing a criminal offence. The reason for using higher penalty for theft during certain adverse events is thus not the event in itself but offender’s own action as he or she abuses the existing conditions to commit a criminal offence.

The Grand Panel therefore concluded that in order to fulfil the statutory condition of committing the criminal offence during the other events seriously threatening the life or health of people, it does not suffice that there is only temporal and local connection with such an event. There must be equally material connection so that it expresses itself in particular manner at the moment when offender commits a criminal offence. In the present case, the lower courts did not establish any material connection of the attempted theft with the event seriously threatening the life or health in the form of coronavirus causing the disease of COVID-19 in the pandemic extent, nor did they state in what way this event expressed itself during the crime of attempted theft. The lower courts thus provided incorrect legal assessment of the criminal offence of attempted theft when they reached the conclusion that criteria of ‘aggravated’ classification of the offence according to Section 205 (4) (b) of the Criminal Code were met only due to temporal (and local) connection of this act with the event seriously threatening the life and health of people. The Grand Panel issued its own decision on the merits of the case finding that the accused is guilty of the offence of attempted theft according to Section 21 (1) and Section 205 (2) of the Criminal Code in conjunction with the offence of dangerous threatening according to Section 353 (1) of the Criminal Code. The Grand Panel also reached different conclusion concerning the penalty and sentenced the accused to twelve months of imprisonment.