The minimum threshold of property damage in the Criminal Code is not unconstitutional. The possible increase of the limit is a legislative matter

Authors: JUDr. Lukáš Duffek, Mgr. Petr Zábranský and Mgr. Linda Coufalová

The District Court of Liberec as plaintiff called into question the constitutionality of Section 138 Par. 1 of the Criminal Code that determines the property damage threshold after which criminal liability arises. The Court concluded that the regulation contradicts Art. 40 Par. 6 of the Charter, which stipulates that the criminality of a fact must be determined and the punishment must be decided according to the law that is in force at the time when the crime was committed. More recent laws should be applied when it is beneficial to the offender.

The plaintiff particularly appealed to the fact that the threshold of damage is primarily criticized for unreasonably amounting to CZK 5,000 and for not having been changed since 2002. Thus the threshold has been set without regard to inflation, the rise of living standards and price levels in the Czech Republic. In order to illustrate how the economic situation has changed, the Court referred to average salaries in comparison to the regulation. In 1992, the minimum threshold for property damage was equivalent to 43% of average salary, while in 2018 it amounted to “only” 15,7%. This means that a crime, for instance the theft of the same amount of CZK 5,000 in cash, will not affect the victim in 2018 in the same way as it did in previous years. The plaintiff perceived the unconstitutionality primarily in the conflict between the legislation and the prohibition of retroactivity, for in its view, this Criminal Code regulation has stealthily become more severe. The plaintiff compared this to a situation in which a regulation is passed that reduces the threshold of criminal liability, but the principle of using a more favorable legal provision does not remain the same.

The Constitutional Court agreed with the plaintiff that the legal regulation had stagnated and confirmed that the development of the abovementioned economic factors had contributed to the significant spread of criminal sanctions. However, the Constitutional Court at the same time highlighted its previous cases and noted that it did not have the right to judge how wide the thresholds of criminalization of certain types of proceedings should be, and that it could not assume the role of the legislature in this case. This conclusion was later also applied to the issue of setting the limit of damages.

The Constitutional Court also expressed disagreement with the comparison that the abovementioned changes of an economic nature have the same effect as a regulation being passed that reduces the threshold of criminal liability, while not preserving the rule of using a more favorable legal provision: “With respect to the prohibition of retroactivity expressed in Art. 40 Par. 6 of the Charter (and in Section 2 Par. 1 of the Penal Code), it is the state at the time when the crime has been committed that is decisive. After all, that is also applicable to the assessment of the damage caused by the crime, for according to the Section 137 of the Penal Code, the assessment of the damage must be based on the price for which the thing that is the object of the charge is usually sold at the time and place of the crime. The change in value of a certain object that happens after the commission of the crime does not have any influence on the evaluation of the criminal liability of the offender, and that is applicable even to cases when this would be profitable for the offender (e.g. as a result of significant reduction in the price of a certain thing after the crime has been committed). A change of this sort (that happened between the moment when a particular regulation came into force and the moment when the crime was committed) then may appear even less significant as regards the possible violation of the prohibition of retroactivity as per Art. 40 Par. 6 of the Charter.” (Point 36 of the decision.)

In the conclusion of the decision, the Constitutional Court then expressed the opinion that criminal liability becoming more severe due to conservation of the legislation together with economic development is not in contradiction with the provisions of the Charter. Nevertheless, the Court firstly added that the problems pointed out by the plaintiff can legitimately be perceived as a significant problem of the contemporary criminal politics of the government, and secondly it highlighted the legislative initiative of a group of deputies, which among other aims also focuses on the elevation of the threshold of property damages.

The Constitutional Court thus did not use the opportunity to modify current legislation and to abolish the regulations that determine the threshold of property damages. What is then left is to wait for the outcome of the legislative process and hearing of parliamentary report N. 466/0, which proposes to enact price thresholds for the incurrence of criminal liability for insignificant damage at CZK 10,000 and at the same time to double all other price thresholds. On 20.01.2020 though Jan Hrnčíř put forward another amendment to the parliamentary report that, on the contrary, proposes that the threshold for insignificant damage should remain at CZK 5,000 and that all other damage thresholds should be doubled. The final proposal of the regulation that would assess the threshold of property damage remains unclear at the present moment.

The whole text of the decision of the Constitutional Court from 26.05.2020 Ref. No PI CC 46/18 is available here.

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