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Question 5.

Insanity is dealt with in Section 12, Subsection 1 of the Code, entitled "Insanity" which reads as follows:

(1) A person who, due to mental disorder, was unable at the time of the crime to recognize its danger to society or to control his action shall not be criminally liable for the crime.

Insanity is not defined in the Code. However, the mental disorder must be such that the offender was unable to recognize the danger of his act to society or to control it. The quesion of insanity is a legal question which must be decided by the court on the basis of the facts found."

If the offender was insane at the time when the crime was perpetrated, he is not criminally liable. An insane person may not be prosecuted, found guilty or be convicted. The prosecution must be stayed and if insanity was established during the main trial, the sentence must call for an acquittal.

The procedural aspects of insanity are handled in the Code of Criminal Procedure in the following manner :

In the preparatory proceedings, which are carried out by the Office of the Public Prosecutor or by an investigating agency, the public prosecutor stays the criminal prosecution, if the accused was not criminally liable at the time of the crime because of insanity (Sec. 1.2, Subsec. 1, letter (e) of the CCP).

In the judicial proceedings, the presiding judge may order a preliminars review of the indictment, if he is of the opinion that the accused was insane (Sec. 186, Subsec. 1, letter (c) of the CCP), and after having reviewed the indictment, the court must stay the prosecution, if the accused was found inisane (Sec. 188, Subsec. 1, letter (d) of the CCP).

The court must acquit the defendant if he is not criminally liable due to insanity (Sec. 226, letter (d) of the CCP).

The psychiatric examination of the accused is regulated by Sections 116 and 117 of the Code of Criminal Procedure. They read as follows:

Sec. 116.-(1) If the mental health of the accused must be examined, twi expert witnesses from the field of psychiatry shall always be called to do.

(2) If the psychiatric examination cannot be carried out otherwise, the court and, in preparatory proceedings, the prosecutor, or, with the prosecutor : approval, the investigating organ, may order that a person accused of a criile be observed in a medical institution or, if the accused is in custody, in : special department of the penal institution. This decision may be contested by complaint which shall have dilatory effect.

(3) If the expert witnesses find that the accused shows signs of insani! or lessened sanity, they shall at the same time express their opinion whethhis freedom would be dangerous.

Sec. 117.-Psychiatric observation shall not last longer than two months; tb opinion shall be submitted within this term; at the warranted request of 1 expert witnesses, the court and, in preparatory proceedings, the prosecutor is with the prosecutor's consent, the investigating organ, may extend the ter but not longer than by one month. The extension of the term may be contest by complaint.

The Criminal Code provides for protective therapy as a protective meast," for a person who commits an otherwise criminal act and is not crimin liable because of insanity and his continued stay at large would be dangerous

This protective therapy may be ordered in addition to a penalty or if punishment is waived. It shall be provided as a rule in a medical instituta and shall continue as long as its purpose so requires. Release from proteti. therapy may be ordered only by the court. The execution will be stopp** the court if the circumstances for which it had been ordered change iw its commencement (Sec. 72 of the Code).

Protective therapy may also be ordered for an offender who commits crime in a state of impaired sanity (or a state approaching insanity) ani stay at large is dangerous. Impaired sanity is a state in which, due to mar' disorder at the time of the crime, the ability of the offender to recognize *} his act is dangerous to society or the ability to control his action was a stantially decreased. Such persons are criminally liable; however, the powe may waive punishment if it is of the opinion that the protective theraps we

11. at 69 * 11. at 104-105.

it is simultaneously ordering will ensure the offender's rehabilitation and the protection of society better than a penalty (Sec. 25 of the Code). The court will also take the state of reduced sanity into consideration when determining the type and extent of penalty. Section 32 of the Code reads as follows:

Sec. 32.-(1) If the offender committed the crime in a state approaching insanity and did not induce himself into such state, even through negligence, by having taken an alcoholic beverage or a drug, the court shall take this circumstance into consideration when determining the type and extent of penalty.

(2) If the court holds that in view of such an offender's state of health the purpose of the penalty can be achieved by a lesser penalty paralleled by protective therapy (Sec. 72), it shall reduce the term of imprisonment below the minimum term, not being bound by the restriction listed in Section 40. At the trial, if the court finds that there are grounds for ordering protective therapy with respect to the defendant, it may be ordered even in the absence of a motion by the prosecutor. If the court requires further evidence for its decision which cannot be immediately produced, the court will reserve the decision concerning protective therapy for a public session (Sec. 230 of the CCP). Question 6:

A person who induced in himself a state of insanity, even through negligence, by taking an alcoholic beverage or a narcotic drug, is not criminally liable (Sec. 12, Subsec. 2 of the Code). The reason given by the official Statement Accompanying the Bill on the Criminal Code for such liability when a crime was committed in a state of self-induced drunkenness is "a consistent fight against alcoholism.”

In some instances the circumstance that the crime was committed under the influence of alcohol will bring a higher sentence (for instance, when an offender committed a crime while performing his duty in his employment, occupation, position or office, Sec. 180, Subsec. 2, letter b; or Sec. 224, Subsec. 2 of the Code) or will be considered as a common aggravating circumstance.

There are other restrictions in the Code concerning intoxication. The provision of Section 25 on a waiver of punishment in case of a state approaching insanity in connection with protective therapy (see above) does not apply, “if the offender had induced in himself the state approaching insanity, through negligence, by taking an alcoholic beverage or a drug" (Sec. 25, second sentence).

The state approaching insanity caused by intoxication will not be taken into consideration in determining the type and extent of the penalty (see above).

If an offender addicted to the excessive consumption of an alcoholic beverage or narcotic drug commits a crime while drunk or in a similar state of intoxication (chronic alcoholism, morphinism, and similar cases), the court may order protective therapy (Sec. 72, Subsec. 2, letter b).10 Question 7:

Self-defense, duress (extreme necessity) and the justified use of weapons are spelled out in Sections 13, 14, and 15 of the Code; the principles are stated in general terms. As to necessary defense, the Code specifies that an otherwise punishable act by which a person averts a directly threatening or continuing attack on any interest protected under the Code shall not be considered a crime. However, it is not a necessary defense, if the defense was clearly out of proportion to the nature and danger of the attack. Extreme necessity is defined as an otherwise punishable act by which a person averts a danger directly threatrning an interest protected by the Code. However, it is not an extreme necessity, if under the given circumstances, the danger could have been otherwise averted or if the resulting consequence is clearly as serious or even more serious than the one which had threatened. And finally, the justified use of a weapon is not # crime, if the person used the weapon "within the scope of the authority provided by the respective legal regulations." Question 8:

The (Szechoslovak Criminal Code deals only with “criminal acts." Nisde"Honors, that is acts which do not reach the same degree of danger for society

even

14 at 67 and 69-73. - Id. at 223.

as do criminal acts, are now handled in a special Law on Misdemeanors of December is 1969, No. 150 Sb. Question 9:

The provisions on sentencing are in Chapter Four (Secs. 23–64). Sections JS 60 deal with a suspended sentence which is a suspension on probation of the Cecution of a penalty, and Sections 61-64 handle the release of a convicted person on parole, and suspension of the execution of an unexpired penalty prohibiting a convicted person from engaging in a specific activity. Probation is a form of suspension of a sentence.

A person so released is under the supervision of a public organization (Trade l'nion organizations; Youth organizations) which takes reponsibility for his good behavior.

The Code provides for determinate sentences of imprisonment stating, as a rule, the maximum, or the minimum and the maximum terms of imprisonment, for instance, "up to one year," or "six months to three years."

The Code provides for “imprisonment of especially dangerous repeaters," in Sections 41 and 42. After the definition of especially dangerous repeaters, the maximum term of imprisonment set by the Code is raised by one third for them. The court must impose a penalty in the upper half of this term. However, the maximum term of imprisonment may not exceed fifteen years even after the increase.

The minimum term of imprisonment is not set in the Code; however, the maximum term is fifteen years (Sec. 39, Subsec. 1).

The system of release on parole is established in Sections 61-64. The court may release a convicted person on parole after he has served one half of the prison term (two-thirds for the crimes enumerated in Sec. 62) to which he had been sentenced, if he has demonstrated by his model behavior and his honest attitude toward work that he has reformed and he may be expected to lead an orderly life of a working man in the future, or if the court accepts the guarantee offered by the public organization for completing his reform. When releasing a convict on parole, the court sets a probation period of from one to 7 years. The court may impose suitable restrictions on the parolee designed to make him lead an orderly life of a working man; it may also order him to compensate according to his ability for the damage he caused by his crime.

Publicity to a conviction (Sec. 3007 of the Draft) is not mentioned in the (ode.

Every judgment must include reasons in writing (Secs. 120 and 129 of the (CP). The judgments are subject to review on appeal by a higher court (Sec. 252 of the CCP).

The appellate court may increase as well as decrease a sentence. Both the government and the defendant may appeal a sentence (Sec. 246 of the CCP). However, a judgment to the detriment of the defendant may only he appealed by the prosecutor (Secs. 247. Subsec. 1 and Sec. 259, Subsec. 4 of the CCP).

Complaints against violations of the law and the respective proceedings are spelled out in Chapter 17 (Secs. 266–276 of the Code of Criminal Procedure).

The Code provides for a joint and supplementary sentence in Sections 3538. If the court sentences the offender for two or more crimes, it imposes i joint penalty upon him according to the legal provision relating to the crimi which is subject to the strictest punishment. The court imposes a supplementar penalty under the same principle, when it sentences the offender for a crime he had committed before the court of the first instance pronounced the sentent for another crime he had committed.

When imposing a supplementary penalty, the court at the same time poid. the penalty imposed on the offender by the previous verdict. Consequently, !' one but not all of the convictions in a joint sentence is reversed on appeal, the new sentence must repeal the previous sentence to the joint penalties and issik a new penalty.11

The supplementary penalty mar not be less than the previously impose penalty. If the court sentences an offender for a crime he had committed befor: the penalty imposed upon him by a prerious verdict was executed, and impose a penalty of the same type, such penalty, together with the unexecuted part

11 1d, nt 135.

the previously imposed penalty, may not exceed the maximum rate permissible under the Code for this type of penalty.

In regard to the imposition of fines, the court may impose a pecuniary penalty in an amount ranging from 500 to 50,000 crowns as a separate penalty only in cases where the Code, in its Special Part, permits the imposition of this penalty and if, in view of the nature of the crime and the possibility of reforming the offender, no other penalty is necessary for achieving the purpose of punishment. The court may impose a pecuniary penalty in addition to another penalty, if, by his premeditated criminal activity, the offender acquired or tried to acquire pecuniary gain (Sec. 53 of the Code). When fixing a pecuniary penalty, the court takes into consideration the offender's personal and property situation; it does not impose a pecuniary penalty if it is clear that the penalty would be irrecoverable.

The execution of a pecuniary penalty is handled in Sections 341-344 of the Code of Criminal Procedure. As soon as a judgment requiring the payment of a pecuniary penalty becomes final, the presiding judge orders the convicted person to pay the penalty within fifteen days, warning him that otherwise the payment will be enforced. For serious reasons, the presiding judge may postpone the payment or allow the payment to be made in installments. The court waives the execution of a pecuniary penalty if it is apparent that its attempt at enforcement would be of no avail. Question 10:

The Criminal Code does not regulate expressly the effect of a mistake in committing a crime. The principles underlying it can be interpreted from the prorisions concerning guilt (Secs. 4, 5, and 6). Mistake of law is not a defense under the Code." Mistake of facts, generally speaking, obviates the knowledge which is required for intent, and, therefore, there is no criminal liability. Question 11:

The separation of the jurisdictional basis from the definition of the offense is not dealt with in the Codes. Question 12:

Extraterritorial jurisdiction is regulated in Sections 17-20 of the Code. The provisions of this Code are applicable to all crimes committed within the territorial limits of the country (territoriality principle). They also apply to crimes committed abroad by a Czechoslovak citizen or stateless resident of Czechoslovakia (personality principle). The protective principle and the universality principle are spelled out in Section 19 by which the Code also applies to certain crimes committed abroad to the detriment of Czechoslovakia or society at large by an alien or a stateless person who is not a resident of Czechoslovakia ; the crimes are enumerated therein. This law also applies in determining the punishability of a crime committed abroad by an alien or a stateless person who is not a resident of Czechoslovakia, if the crime is punishable also under the law in force on the territory where it was committed, and if the offender is apprehended on the territory of Czechoslovakia and is not extradited for criminal prosecution to a foreign state (the subsidiary universality principle). Question 13:

The Code does not explicitly provide for criminal conspiracy. According to Sections 9 and 10, a crime may be committed either by one person, the offender, or bs the joint action of two or more persons. In such a case, each one of them will fue criminally liable as if he alone had committed the crime (accomplices). The Code defines a participant in a completed crime or in an attempt to commit a crime as a person who with intent organizes or directs the commission of the rrime (the organizer), instigates another person to commit the crime (the instizator), or who assists another person to commit the crime, in particular by proriding the means for doing so, removing obstacles, giving advice, strengthening the intent, or promising help after the crime has been committed (accessory). Question 14:

The "felony-murder” rule is not dealt with in the Code. In order to commit 2 (Time, intent is necessary.

18. at 46.

Question 15:

In federated Czechoslovakia, there are Czech courts for the Czech Socialist Republic and Slovak courts for the Slovak Socialist Republic. The only courts common to both states are the Supreme Court of the Czechoslovak Republic and certain military courts.13

As to the provisions on rioting and mass demonstrations, the Code has similar provisions on sedition (Sec. 92), which is a crime committed by a person who, acting with the intent to undermine the socialist social and governmental system, territorial integrity or defensive capacity of the Republic or to destroy its independence, participates in forcible acts or mass disturbances against the Republic, its organs or public organizations of the working people, or engages in other especially dangerous activities against the foundations of the Republic or its important international interests. Question 16:

The present Criminal Code has no provisions concerning para-military activities, because the unauthorized carrying of weapons is a crime under Section 185 (See Question 18 following). The right to carry or possess a weapon is subject to a license. Question 17:

As to "crimes without victims," the Code for instance in connection with homosexuality (Sec. 244) states that a person who accepts or makes payment for sexual relations with a person of the same sex, or causes a public nuisance by sexual relations with a person of the same sex shall be held criminally liable. According to Section 203, a person shall be guilty of parasitism when he consistently avoids honest work and makes his living through prostitution, gambling, or in some other improper manner, and shall be punished by imprisonment for a term of up to two years. This text was changed in 1963 so that, instead of prostitution and gambling, a more general term was accepted, and the sentence was increased to three years. Question 18:

The Code has a provision concerning firearms and explosives in Section 185 entitled “Unauthorized Arming :"

(1) Whoever, without being authorized,

(a) obtains for himself or another person or has in his possession a weapon of mass effect or parts essential for the use of such weapon, or

(b) accumulates, manufactures or procures for himself or another person weapons, ammunition or explosives, shall be punished by imprisonment for a term of up to three years.

(2) The offender shall be punished by imprisonment for a term of one to five years,

(a) if he commits the act described in paragraph 1 on a larger scale, or

(b) if he commits such act under a state of defense emergency. Question 19:

The Czechoslovak law provides for capital punishment as an extraordinary penalty which a court may impose under the conditions spelled out in the Criminal Code, Sections 29 and 30. Under certain circumstances, the death sentence may be imposed, for instance, for high treason, sedition, terrorism, sabotage, espionage, common menace, and murder. The Code does not provide for separate hearings to determine the sentence in a capital case. However, the Code of Criminal Procedure (Secs. 316-319) provides that, if the judgment imposing a death penalty has become final, the presiding judge shall submit the files to the Supreme Court for a review. And only if the judgment has been unaffected by the review and the court has been advised that there has been no petition for pardon or that such petition has been rejected, may the death penalty be executed. Question 20:

The Czechoslovak criminal procedural system provides for a joinder of prosecution. In Section 20, Subsection 1, the Code of Criminal Procedure spells out

13 Law on Court Organization and Elections of Judges of February 26, 1964, No. 36 Sb., as adiended. Republished in No. 13/1970 Sb., issue No. 5 of March 20, 1970.

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