Decided 13 May 2004 – IV. US 396/03
                             
              „Principles of Just Punishment“

HEADNOTES
In   judging  whether  the  „substantive“  requirement  for
especially dangerous recidivism under § 41 para. 1  of  the
Criminal  Code  is fulfilled, that is, that the  recidivism
results in a substantial increase in the level of danger of
the  criminal offense for society, it is necessary also  to
take into consideration circumstances other than the length
of  time  which  has  passed  since  the  last  conviction,
circumstances,  for  example,  the  manner  in  which   the
criminal  conduct was committed, the harm caused  both  now
and  by the earlier criminal conduct, the amount, type  and
extent  of  previous punishments, the motives  and  reasons
which   led  to  the  recidivism.   Weighty  considerations
include   an   overall  evaluation  of  the   perpetrator’s
character  and  personality, his overall personal  profile,
features  of  his  character and psychological  attributes,
age,  etc.   It is also significant to ascertain  how  many
times  the  perpetrator has been punished in the  past  for
especially  serious crimes, for how many criminal  offenses
he  was punished, and for how many criminal offenses he  is
now  being condemned, what is the total amount of  time  he
was  incarcerated  in the past, what is the  time  interval
between   times   in  prison,  etc.   In   evaluating   the
substantive condition of especially serious recidivism, the
concrete level of danger of the criminal offenses, both the
previous and the currently prosecuted one, as well  as  the
consequences  of  the crimes, must be assessed.   One  must
also take into account the significance and seriousness  of
all   criminal  offenses  for  which  the  perpetrator  has
previously been punished, his conduct during incarceration,
his manner of life in the periods between criminal offenses
and  punishments,  the  length of  imprisonment  previously
imposed  as  well as the duration of actual  incarceration,
and  the  commission  of  other criminal  offenses  in  the
decisive period.
There  is  no  doubt  that  it  best  corresponds  to   the
principles  of  just  punishment and  of  the  equality  of
citizens before the law in a law-based state if the regular
cases  of  „standard“  criminality are  prosecuted  in  the
framework  of  the „normal“ criminal sentencing  range,  as
laid  down  in the special part of the criminal code.   The
legislature expresses therein the categories of degrees  of
danger to society of certain types of criminal delicts  and
provides state bodies participating in the criminal process
a  settled framework within the confines of which they must
mete  out  a concrete punishment, taking into consideration
all  circumstances of the case.  For the legislature to lay
down  in  this  manner the criminal sentencing  range  best
satisfies  the  principle nullum crimen, nulla  poena  sine
lege, the principle of the equality of citizens before  the
law,  and  the  principle  of the predictability  of  court
decision-making.
Deviations  from  the  general criminal  sentencing  range,
either in legislation or in applicational practice, must be
founded   upon  entirely  exceptional  and  duly  justified
circumstances.    The   statutory   conditions   for    the
application  of  the  institute  of  especially   dangerous
recidivism  under  §  41  of  the  Criminal  Code  must  be
interpreted restrictively.
The  criminal policy purpose of this legal institute is  to
prosecute  more  severely  „incorrigible“  delinquents  who
repeatedly perpetrate especially serious criminal offenses.
The  exceptional severity of the punishment is  justifiable
in  this  case  because the perpetrator,  although  he  has
already,   by   being  punished  in  the   past,   received
appropriate   warning,   obstinately   repeats   especially
dangerous anti-social attacks the blameworthiness of  which
must  be  notoriously manifest to him.  In such cases,  the
imposition of an intensified punishment can be warranted by
considerations of general and individual prevention.
In cases where the repeated comission of criminal acts does
not  substantially increase the level of danger for society
of a criminal offense, a rational reason cannot be found as
to  why  repeatedly criminal conduct should result  in  the
infliction  of an especially intensified sentencing  range;
in  such  cases, in order to fulfill the aims  of  the  the
Criminal  Code,  it suffices to mete out punishment  within
the  framework of the „normal“ (that is, not  increased  by
one-third) sentencing range.

JUDGMENT
On  13 May 2004 the Constitutional Court decided without an
oral  hearing in a panel composed of its chairperson, JUDr.
Jiri Mucha, and Justices JUDr. Pavel Hollander a JUDr.  Jan
Musil  in  the  matter of the constitutional  complaint  of
Milan  Adam,  born  14  November 1977,  residing  at  Polni
18/1817,  Cesky Tesin, at the moment serving a sentence  of
imprisonment at the Valdice Penitentiary, Namesti Miru  55,
507  11 Valdice, represented by JUDr. Stanislav Blazek,  an
attorney  with his office at Moskevska 24a, 736 01 Havirov,
directed against the 6 May 2003 ruling of the Supreme Court
of  the  Czech  Republic, file no. 5 Tdo 363/2003,  the  25
September  2002 judgment of the Regional Court in  Ostrava,
file no. 5 To 422/2002, and the 12 August 2002 judgment  of
the  District Court in Karvina , file no. 7 T 39/2002, with
the Supreme Court of the Czech Republic, the Regional Court
in Ostrava, and the District Court in Karvina as parties to
the proceeding and the Supreme State Attorney, the Regional
State  Attorney in Ostrava, and the District State Attorney
in Karvina as secondary parties to the proceeding, decided,
as follows:
      The  6  May 2003 ruling of the Supreme Court  of  the
Czech Republic, file no. 5 Tdo 363/2003 is quashed.  The 25
September  2002 judgment of the Regional Court in  Ostrava,
file  no.  5  To  422/2002 is quashed in  relation  to  the
defendant  Milan  Adam.  That part of the  12  August  2002
judgment of the District Court in Karvina , file  no.  7  T
39/2002,  which  relates  to  the  finding  of  guilt   and
imposition of punishment in relation to the defendant Milan
Adam is quashed.

REASONING

I.
In  his  constitutional complaint which, as far as concerns
the  requirements prescribed by Act No. 182/1993 Coll.,  on
the   Constitutional   Court,   as   subsequently   amended
(hereinafter „Act on the Constitutional Court“), was timely
and duly submitted, the complainant (in the criminal matter
„the convicted“) requests that the 6 May 2003 ruling of the
Supreme  Court  of  the  Czech Republic,  file  no.  5  Tdo
363/2003  and  the  two  judgments  preceding  it,  the  25
September  2002 judgment of the Regional Court in  Ostrava,
file  no. 5 To 422/2002 and the 12 August 2002 judgment  of
the  District Court in Karvina , file no. 7 T  39/2002,  be
quashed.
      The  complainant believes that the contested ordinary
court  decisions infringed his constitutionally  guaranteed
right  to judicial protection, specifically those found  in
Arts.  36  and 39 of the Charter of Fundamental Rights  and
Basic Freedoms (hereinafter „Charter“).  In particular,  he
cannot  accept  that in the judgment of conviction  he  was
adjudged, pursuant to § 41 para. 1 of the Criminal Code, as
an  especially dangerous recidivist, since the  substantive
requirements for especially dangerous recidivism (that  is,
a  substantial  increase  in the level  of  danger  of  the
criminal offense for society) were not met in his case.  In
this regard, the complainant referred to the Constitutional
Court‘s judgment of 11 July 2002, file no. III. US 701/01.

II.
The  Constitutional  Court ascertained the  following  from
criminal  file  no.  7 T 39/2002 of the District  Court  in
Karvina:
In  its 12 August 2002 judgment, file no. 7 T 39/2002,  the
District Court in Karvina convicted the complainant,  under
§ 234 para. 1 of the Criminal Code, of the criminal offense
of  robbery  and,  as  an especially dangerous  recidivist,
under  § 41 para. 1 of the Criminal Code, sentenced him  to
imprisonment of eight years, and to serve his time, he  was
assigned  to higher security level prison.  Stated briefly,
the  criminal act consisted in the fact that on 15  January
2002  at  approximately  1:30  a.m.  in  Cesky  Tesin   the
complainant,  together with his accomplice,  Jiri  Jadamus,
attacked the injured party, Ivan Gazdik and stole from  his
wallet with the sum of 1650 Kc and identity cards.  The act
occurred  as  follows – the complainant hit the complaining
witness  in  the  face  with  his  fist,  upon  which   the
complaining witness fell to the ground, at which point  the
accomplice  Jadamus  leaned over the  complaining  witness,
began searching through his clothing, and pulled his wallet
from the pocket of his jacket; when, during the search, the
complaining  witness began to resist him,  the  complainant
kicked him in the ribs with his shoe (instep), after  which
both  accomplices  left  the  scene  of  the  crime.    The
complainant  committed this criminal act despite  the  fact
that, by the 2 July 1998 judgment of the District Court  in
Karvina, file no. 7 T 156/97, he had already been convicted
of  another criminal act of robbery under § 234 para. 1  of
the  Criminal  Code  and sentenced to imprisonment  of  two
years, which had been suspended for a trial period of three
years,  afterwards, however, on 30 May 2000, he was ordered
to   serve   the  sentence,  from  which  he  had  obtained
conditional release on 30 October 2000.
      By  its  25 September 2002 judgment, file  no.  5  To
422/2002, Regional Court in Ostrava rejected on the  merits
the complainant’s appeal against the first instance court’s
judgment of conviction.  By its 6 May 2003 ruling, file no.
5  Tdo  363/2003, the Supreme Court rejected as  manifestly
unfounded,  pursuant  to  §265i para.  1  lit.  e)  of  the
Criminal  Procedure  Code, the complainant’s  extraordinary
appeal against the appellate court’s judgment.

III.
The  Constitutional  Court requested a statement  of  views
from the Supreme Court, the Regional Court in Ostrava,  the
District Court in Karvina, the Supreme State Attorney,  the
Regional State Attorney for Ostrava, and the District State
Attorney for Karvina.
      In its 21 October 2003 statement of view, file no., 5
Tdo  363/2003, the Supreme Court stated that  in  adjudging
the extraordinary appeal it did not find that the contested
decision  suffered from any defects.  It declared that  the
complainant has a marked inclination towards the commission
of  criminal acts, that he committed the incriminating acts
during  the trial period after his suspended sentence,  and
that  he committed a further criminal act during his parole
period  following his conditional release.   The  appellate
court  is  of  the  view  that the  classification  of  the
complainant, under § 41 para. 1 of the Criminal Act, as  an
especially  dangerous recidivist was correct,  in  view  as
well  of the character of the complainant’s conduct in  the
previous case and in the case under consideration.
      In its 30 April 2004 statement of views, the Regional
Court  in  Ostrava  asserted that,  in  his  constitutional
complaint,   the  complainant  has  merely   repeated   the
arguments  to which the ordinary courts have satisfactorily
responded  in  their  decisions.   It  considers  that  the
material  elements of especially dangerous recidivism  were
fulfilled by the repeated committing of especially  serious
criminal  offenses  within  a brief  period  following  the
previous  conditional release from serving his sentence  of
imprisonment, as well as by the intensity of  the  criminal
conduct.  On these grounds the regional court proposes  the
constitutional  complaint  be rejected  on  the  merits  as
unfounded.
      The District Court in Karvina did not avail itself of
its  right, as a secondary party, to give its views on  the
constitutional complaint.
      Both  the  Supreme State Attorney, in its 4 September
2003  statement of views, file no. 1 NZo 28/2003,  and  the
Regional  State Attorney for Ostrava in its 27  April  2004
statement  of  views,  file no. 2 KZt 1853/2002-25,  waived
their status as secondary parties to the proceeding on  the
constitutional  complaint.  In its 26 April 2004  statement
of  views,  file  no.  1  Zt 91/2002,  the  District  State
Attorney  for Karvina expressed the opinion that the  brief
period  of  time  which has passed since the  complainant’s
previous  conviction considerably increases  the  level  of
danger  for  society  of the criminal act;  therefore,  the
ordinary court decisions must be deemed to be lawful.
      The  complainant and all other parties and  secondary
parties  consented  to  the Constitutional  Court  deciding
without holding a hearing.  In view of what has been stated
and,  further, in light of the fact that the Constitutional
Court  is  of  the view that further clarification  of  the
matter  cannot be expected from a hearing, an oral  hearing
was dispensed with in this case (§ 44 para. 2 of the Act on
the Constitutional Court).

IV.
The  conditions  for  the  imposition  of  a  sentence   of
imprisonment  upon an expecially dangerous  recidivist  are
laid down in § 41 of the Criminal Code as follows:

„(1)  A  perpetrator who has already been convicted  of  an
especially serious intentional crime and once again commits
that  same  or  some  other especially serious  intentional
crime,  shall  be  considered as  an  especially  dangerous
recidivist,  if  that circumstance, due to  its  gravity  -
particular in view of the length of time which has  elapsed
since  his  most recent conviction, substantially increases
the level of danger of this crime to society.
  (2) Especially serious crimes are those criminal offenses
listed in § 62, as well as all intentional crimes for which
this  Act  prescribes a punishment of imprisonment  with  a
maximum sentencing range of at least eight years.“

A  basic  issue in the present case is whether the repeated
commission of the criminal offense of robbery in  the  year
2002 (that is, after he was already convicted and sentenced
for  the same criminal offense, committed in 1997),  should
be  adjudged a circumstance which, due to its gravity –  in
particular in view of the length of time which has  elapsed
his  most  recent conviction, substantially  increases  the
level  of danger to society of this crime; in other  words,
whether  the substantive conditions for especially  serious
recidivism were met.

V.
In  making  an  overall assessment  in  this  case  of  the
substantive conditions for especially dangerous recidivism,
the  Constitutional Court ascertained the  following  facts
from the criminal file:

A)  It  was  necessary, first and foremost, to adjudge  the
nature  of  the  criminal offenses of theft, previously  or
presently  committed, in relation to which  recidivism  was
considered:
   aa)  From the 2 July 1998 judgment of the District Court
in  Karvina, file no. 7 T 156/97, the Constitutional  Court
ascertained that in the past the complainant had  committed
the  ongoing criminal offense of robbery in the form of two
attacks:
   1.  On  22  May  1997, following an argument  and  while
intoxicated, he forced his mother, Marie Adamova,  to  give
him  500,- Kc by threatening that if she did not  give  him
the  money  he  would throw her from her seventh  apartment
window  and further that he shoved her and held her by  her
clothes.
   2.  On  31  May  1997, following an argument  and  while
intoxicated, he forced his mother, Marie Adamova,  to  give
him  first 200,- Kc, and then 250,- Kc, by waving his  arms
in  front  of  her face and, with a kitchen  knife  in  his
hands, threatening to kill her.
      For  these  acts the complainant was, in  the  above-
mentioned  judgment, found guilty, under § 234 para.  1  of
the  Criminal Code, of the criminal offense of robbery  and
sentenced to imprisonment for two years, which sentence was
suspended  for a trial period of three years;  in  addition
thereto, he was ordered to receive outpatient treatment for
alcohol dependancy.
      Even  though  it is self-evident that these  acts  he
committed   are  very  blameworthy  and  testify   to   the
complainant’s bad human and social characteristics, it must
be  taken into account that, in character, they differ from
the usual criminalogical profile of a typical robbery.  The
complainant’s antisocial conduct in these cases was heavily
influenced  by his dismal personal situation – unemployment
and  material want, dependence on alcohol, as well  as  the
ill  effects  from quarrels and from familial disagreements
with  his mother.  The overall constellation of these  acts
is  reminiscent rather of the model of deeply disturbed and
conflictual  family relations and of family violence.   The
complaining witness’ actual conduct following the  act,  as
well as in the course of the criminal proceeding, attest to
the  interpersonal conflicts underlying these  events.   In
the  complainant’s  pre-trial hearing,  his  mother,  Maria
Adamova,  testified as a witness.  At the  trial,  however,
she  refused to testify and stated that she would  like  to
withdraw  the criminal complaint against her  son  and  and
that her purpose in making the complaint was merely so that
someone would have a talk with her son and that he would be
frightened.  In its judgment of conviction, the court  also
took  into  account  the complaining witness‘  conciliatory
attitude, as shown in the reasons it gave for imposing upon
the complainant, to teach him a lesson, a mere sentence  of
imprisonment at the very lower end of the range of possible
punishments and conditionally suspended the sentence.
      The act of robbery, described above, committed in two
ongoing  attacks,  can be characterized by  the  relatively
minor  degree  of physical violence:  they resulted  in  no
bodily  harm and in essence were predominantly  threats  to
use  violence.   The value of the items  stolen  was  small
(950,- Kc).
      ab)  As was ascertained from the file of the District
Court  in Karvina, file no. 7 T 39/2002, in the newly case,
committed  on 15 January 2002 in Cesky Tesin,  the  factual
basis  of the criminal offense of robbery consisted in  the
fact  that  the complainant hit the complaining witness  in
the  face with his fist, upon which the complaining witness
fell  to  the  ground, at which point the  accomplice  Jiri
Jadamus   leaned   over  the  complaining  witness,   began
searching through his clothing, and pulled from the  pocket
of  his jacket his wallet with the amount of 1.650,- Kc and
his  identity  documents;  when,  during  the  search,  the
injured  party began to resist, the complainant kicked  him
in  the  ribs  with  his shoe (instep),  after  which  both
accomplices left the scene of the crime.
      Even though the degree of bodily force was greater on
this  occasion than on the previous occasion, it was in  no
sense  particularly  high.   The  complaining  party,  Ivan
Gazdik,  did not suffer any bodily injury; in his testimony
in  the  main trial on 3 May 2002 he described the physical
attack as consisting in a blow by the fist to the lower jaw
and  a  kick with his shoe (instep) into the ribs; „it  was
not, however, in any way a powerful blow“ (No. 1. 98 of the
criminal file).  That the complaining party himself did not
personally assess the act as terribly serious, is  attested
to  by the fact that he reported the act, which occurred at
1:30  a.m,  only at 1:40 p.m..  Moreover, as  the  witness,
Rudolf Trombik, stated, the complaining witness confided in
him  that he reported the offense primarily due to the fact
that all of his identity documents were stolen.
      The amount of money stolen in the course of this  act
(1.650,- Kc) was not high.

B)  In  was  in  this case also appropriate  to  take  into
account  the  number, type, and level of prior  convictions
and  sentences imposed, the overall amount of  time  served
pursuant to those sentence, and the length of the intervals
between  them.   As  was ascertained from  a  copy  of  the
complainant’s  criminal record, prior to  his  most  recent
conviction,  when  he  was  classified  as  an   especially
dangerous  recidivist, he has been  convicted  a  total  of
three times:
1.   in the 18 April 1997 judgment of the District Court in
  Karvina, file no. 7 T 54/97, he was convicted of criminal
  offences  relating to property (§ 247 para. 1 and  §  257
  para. 1 of the Criminal Act) and given a suspended sentence
  of 4 months imprisonment with a fifteen-month trial period.
  On 3 February 1998, this punishement became subject of an
  amnesty;
2.  in the 2 July 1998 judgment of the District Court in
Karvina, file no. 7 T 156/97, he was convicted, pursuant to
§ 234 para. 1 of the Criminal Code, of the criminal offense
of robbery and was given a suspended sentence of two years
imprisonment, with a three-year trial period.  Afterward,
he committed a further criminal offense (stated in the
following point three), and on 30 May 2000 a decision was
made ordering that he serve his sentence, from which on 30
October 2000 he was released on parole lasting four years.
This conviction and sentence in particular were taken into
account when making the classification of especially
dangerous recidivism in the decisions contested in the
constitutional complaint;
3.   in the 5 April 2000 judgment of the District Court  in
  Karvina,  file  no. 7 T 33/2000, he was convicted,  under
  several provisions of the Criminal Act, under § 202 para.
  1,  of  the criminal offense of hooliganism, under §  257
  para. 1 of damage to another’s property, under § 221 para.
  1, of causing harm to a person’s health, under § 197a, of
  violence  against a group of inhabitants and  against  an
  individual, and under § 171 para. 1 lit. d), of thwarting
  the enforcement of an official decision, and was sentence
  to  an unconditional 14-month term of imprisonment; on 30
  October 2000 he was released on parole lasting four years.

Several facts that are relevant for the assessment  of  the
material elements of especially dangerous recidivism become
evident  from  a recapulation of the prior convictions  and
sentences  served  in relation to the adjudicated  criminal
offense of robbery:
-    only  in  a  single previous case was the  complainant
  convicted and sentenced for a criminal act which  can  be
  classified, pursuant to § 41 para. 1 of the Criminal Act,
  as an especially serious intentional criminal offense; the
  case  currently  being adjudicated  is  thus  his  second
  conviction for an especially serious criminal offense;
-   more than four and one-half years passed between the
commission of these two criminal offenses;
-    the  total period of time which the complainant  spent
  serving sentences of imprisonment was approximately  five
  months; before serving out his sentence, he was released on
  parole;
-    The  prior criminal offenses for which the complainant
  was convicted were of a
  divergent  nature,  in  two cases  he  was  convicted  of
  violent  crimes; as can be concluded from the  types  and
  length  of  sentences  imposed, these  criminal  offenses
  were  not  adjudged in specific cases as being especially
  dangerous,  and  he  was even given  merely  a  suspended
  sentence  of imprisonment for the first criminal  offense
  of robbery he committed.

C)  The  personality of the convicted person,  his  overall
personal   profile,   his   character   and   psychological
attributes,  age,  etc.  are crucial  considerations  which
should  have  been  taken into account  in  evaluating  the
substantive conditions of especially dangerous recidivism.
      As the fact-finding first instance court declares  in
its  judgment, the convicted person was not well  known  in
his  place  of residence, and has once, in 1999,  been  the
subject of a misdemeanor proceeding.  At the time the  most
recent  criminal offence was committed, he  was  unemployed
and   lived  on  social  support  payments.   He  has  been
sentenced  three  times  by  a court,  two  of  those  were
suspended sentences of imprisonment.
      At  the  time the incriminating criminal  offense  of
robbery was committed, he was 24 years old.
      The  ordinary  courts did not ascertain  any  further
personal   characteristics,   from   which   the   especial
dangerousness of a perpetrator can be determined.

VI.
As  the Constitutional Court has already many times pointed
out, in principle it is not empowered to intervene into the
decision-making of ordinary courts, as it is not  the  apex
of  their  court system (compare Art. 81, Art.  90  of  the
Constitution).   As  long as courts proceed  in  accordance
with the Part Five of the Charter, the Constitutional Court
may  not arrogate to itself the right of supervisory review
of  their decisions (Art. 83 of the Constitution).  On  the
other  hand, it is empowered, and even obliged, to  adjudge
whether  a  proceeding was on the whole just and whether  a
complainant’s   constitutionally   guaranteed   fundamental
rights or basic freedoms have not been infringed in it.
      According to Art. 36 para. 1 of the Charter  everyone
may  assert, through the legally prescribed procedure,  his
rights  before an independent and impartial  court  or,  in
specified cases, before another body.  According to Art. 39
of  the Charter only a law may designate the conduct  which
shall  constitute  a  crime  and  the  penalties  or  other
detriments  to rights or property which may be imposed  for
committing them.
      The Constitutional Court considered all parts of  the
judgment  and  the reasoning of the contested decisions  in
the  light  of the just delineated constitutional framework
and  determined that the constitutional complaint is  well-
founded.
      The Constitutional Court determined that the ordinary
court  decisions categorizing the complainant, under  §  41
para.  1  of the Criminal Code, as an especially  dangerous
recidivist   resulted   in   the   infringement   of    the
complainant’s constitutional rights, as the conclusion that
in  his  case  the substantive requirement  for  especially
dangerous recidivism was fulfilled, that is, that there has
been  a substantial increase in the level of danger of  the
criminal  offense  for society, is in  extreme  incongruity
with the established factual circumstances.
      In  highly  regarded criminal law literature,  it  is
emphasized  that,  when  judging  this  condition,  it   is
necessary  also  to  take into consideration  circumstances
other  than the length of time which has passed  since  the
last  conviction, circumstances determinative of the  level
of  danger  of  recidivism for society,  for  example,  the
manner  in  which the criminal conduct was  committed,  the
harm  caused both now and by the earlier criminal  conduct,
the  amount,  type and extent of previous punishments,  the
motives  and reasons which led to the recidivism.   Weighty
considerations  include  an  overall  evaluation   of   the
perpetrator’s  character  and  personality,   his   overall
personal   profile,   features   of   his   character   and
psychological attributes, age, etc. (compare  Novotny,  O.,
et. al., Substantive Criminal Law I – The General Part, 4th
ed., Prague, ASPI 2003, p. 360).  It is also significant to
ascertain how many times the perpetrator has been  punished
in  the  past for especially serious crimes, for  how  many
criminal  offenses  he  was  punished,  and  for  how  many
criminal  offenses he is now being condemned, what  is  the
total amount of time he was incarcerated in the past,  what
is  the time interval between times in prison, etc.  It  is
also  important to evaluate the consequences of the crimes.
In  evaluating  the  substantive  condition  of  especially
serious  recidivism, the concrete level of  danger  of  the
criminal  offenses,  both the previous  and  the  currently
prosecuted one, must be assessed.  One must also take  into
account  the  significance and seriousness of all  criminal
offenses  for  which  the perpetrator has  previously  been
punished,  his conduct during incarceration, his manner  of
life   in   the  periods  between  criminal  offenses   and
punishments, the length of imprisonment previously  imposed
as  well  as the duration of actual incarceration, and  the
commission  of  other  criminal offenses  in  the  decisive
period (compare Samal, Pury, and Rizman: The Criminal  Code
– Commentary, 5th ed., Prague, C.H. Beck, 2003, p. 347).
      Analogical conclusions on the problem of judging  the
substantive  condition for especially dangerous  recidivism
have  also  been  adopted  in  the  constant  jurisprudence
(compare, for example, the case decision no. 32/2001 Coll.,
criminal decisions).
      The  Constitutional Court entirely concurs with these
views   expressed  in  scholarly  literature  and  in   the
decisional  law  and  observes that  in  the  instant  case
certain   relevant   criteria,   determinative   for    the
substantive  condition of especially dangerous  recidivism,
were not taken into account.  The Constitutional Court also
considers it necessary to advert to numerous contexts, of a
criminal policy and historical nature, of the institute  of
especially dangerous recidivism.
      There  is  no doubt that it best corresponds  to  the
principles  of  just  punishment and  of  the  equality  of
citizens before the law in a law-based state if the regular
cases  of  „standard“  criminality are  prosecuted  in  the
framework  of  the „normal“ criminal sentencing  range,  as
laid  down  in the special part of the criminal code.   The
legislature expresses therein the categories of degrees  of
danger to society of certain types of criminal delicts  and
provides state bodies participating in the criminal process
a  settled framework within the confines of which they must
mete  out  a concrete punishment, taking into consideration
all  circumstances of the case.  For the legislature to lay
down  in  this  manner the criminal sentencing  range  best
satisfies  the  principle nullum crimen, nulla  poena  sine
lege, the principle of the equality of citizens before  the
law,  and  the  principle  of the predictability  of  court
decision-making.
     Deviations from the general criminal sentencing range,
either in legislation or in applicational practice, must be
founded   upon  entirely  exceptional  and  duly  justified
circumstances.   The  institute  of  especially   dangerous
recidivism under § 41 and following of the Criminal Code is
just  such  an extraordinary institute and for that  reason
alone  it  is  necessary when applying it to  proceed  very
carefully,  and the conditions therefor must be interpreted
restrictively.
       The  criminal policy purpose of this legal institute
is  to  prosecute more severely „incorrigible“  delinquents
who   repeatedly  perpetrate  especially  serious  criminal
offenses.   The  exceptional severity  of  the  punishment,
which   pursues   preventive  and   repressive   aims,   is
justifiable in this case because the perpetrator,  although
he  has  already, by being punished in the  past,  received
appropriate   warning,   obstinately   repeats   especially
dangerous anti-social attacks the blameworthiness of  which
must  be  notoriously manifest to him.  In such cases,  the
imposition of an intensified punishment can be warranted by
considerations of general and individual prevention.
      In  cases  where the repeated commission of  criminal
acts  does  not substantially increase the level of  danger
for  society of a criminal offense, a sufficiently rational
reason  cannot  be  found  as to  why  repeatedly  criminal
conduct  should result in the infliction of  an  especially
intensified  sentencing range; in such cases, in  order  to
fulfill  the aims of the the Criminal Code, it suffices  to
mete  out  punishment within the framework of the  „normal“
(that  is,  not  increased by one-third) sentencing  range.
The  Constitutional Court recalls that the sentencing range
laid  down for the criminal offense of theft in § 234 para.
1 of the Criminal Code prescribes imprisonment for from two
to  tens  years.  In the vast majority of cases, this  wide
range  and high maximum permissible sentence enables courts
to  make  a sufficiently sensitive differentiation  in  the
imposition  of specific sentences and suitably to  perceive
the   level  of  danger  to  society  of  the   act.    The
Constitutional  Court  is of the view  that,  in  the  case
before  it,  that  basic sentencing range  allows  for  the
imposition  of a proportionate and just punishment  without
it  being  necessary to resort to an extraordinary increase
of  the maximum permissible term of imprisonment and impose
a  punishment  in the upper half of the increased  criminal
sentencing range pursuant to § 42 of the Criminal Code.
     Just in passing it is fitting to call attention to the
historical   circumstances  of  the   Czech   legal   rules
concerning   especially  serious  recidivism,  which   went
through   an  instructive  historical  development.    This
institute was introduced into Czech criminal legislation in
1961  by the Criminal Code, No. 140/1961 Coll., in  a  more
extensive   form  then  exists  today.   Apart   from   the
prosecution  of  recidivism of especially serious  criminal
offenses, the then valid wording of § 41 para. 1,  lit.  b)
of   the   Criminal  Code  allowed  in  addition  for   the
prosecution  of the „continual perpetration of  intentional
crimes  of the same nature“, hence even of criminal  social
seriousness, which did actually sometimes occurred  in  the
criminal justice practice of that time.  In the new  social
and  political conditions that prevailed after  1989,  this
situation   was   criticized   as   exaggerated    criminal
repression,  so  that an amendment to  the  Criminal  Code,
effected by Act No. 175/1990 Coll., reformulated § 41 para.
1  of  the Criminal Code such that it restricted the impact
of  the  institute  of  especial  dangerous  recidivism  on
especially serious intentional criminal offenses.
       It  should  be  remembered  that  the  institute  of
especially  dangerous  recidivism  was  characteristic   of
criminal  legislation in former East-Bloc  countries,  and,
after  the  political  changes, in the  majority  of  those
countries it was eliminated during the course of  the  last
decade  of  last  century.  In Western  European  countries
having   a   continental  legal  system,   this   institute
traditionally  has  not been and currently  is  not  found.
Naturally  it  is  true  that recidivist  criminal  conduct
continues  to  be  considered all over  the  world  a  very
serious and dangerous phenomena which justifies the  resort
to  a  special  legislative solution  making  stricter  the
criminal   prosecution  of  recidivists,  for  example   by
qualifying  recidivism  as an aggravating  circumstance,  a
condition for making more severe the regime of imprisonment
and  for  making more difficult the conditions for release,
etc.;  in general, however, it is considered sufficient  to
mete  out  punishment within the framework of the  „normal“
sentencing range.

VII.
The  Constitutional Court observes that it has  already  in
its  previous  case-law concerned itself with the  criteria
for  assessing  the  subtantive conditions  for  especially
dangerous  recidivism.  In particular in its 11  July  2002
judgment,  file no. III. US 701/01, it expressed  the  view
that  an  ordinary  court  conclusion  that  a  perpetrator
committed  a  criminal  offense as an especially  dangerous
recidivist  must be persuasively proven and  substantiated,
also  because such a finding has considerable influence  on
the  qualification of criminal conduct with an acute impact
on  the  type and extent of the punishment imposed.  Within
the  framework of the substantive conditions for especially
dangerous  recidivism, it is necessary  to  evaluate  in  a
responsible manner the concrete level of danger, both of  a
previous criminal offense, as found by a court in the past,
and  the one currently being prosecuted, according  to  the
standards laid down in § 3 para. 4 of the Criminal Code.
     In its constant decisional practice the Constitutional
Court   defined  the  conditions  in  which  the  incorrect
application of ordinary law norms by ordinary courts  would
result  in  the infringement of constitutionally-guaranteed
rights  or  freedoms (on this point, compare, for  example,
the  judgment  of the Constitutional Court in  the  matters
file no. III. US 173/02 and file no. I. US 733/2001).   One
of  them  is  the case of the arbitrary application  of  an
ordinary law norm on the part of an ordinary court  in  the
situation that the ordinary court’s legal conclusion is „in
extreme   incongruity   with   the   factual   and    legal
determinations that were made“ (for example, III. US 84/94,
III.   US   166/95,   I.   US  401/98,   II.   US   252/99,
I. US 129/2000, I. US 549/2000, III. US 694/02).  It is the
Constitutional  Court’s  conviction  that  the  substantive
requirements  for an especially dangerous  recidivist  were
not  fulfilled in this case, and consequently such  extreme
incongruity was found in this case as well.
     Therefore, the Constitutional Court had no alternative
but,  pursuant to § 82 para. 2 and 3 lit. a) of the Act  on
the  Constitutional Court, to quash the decisions contested
in  the constitutional complaint for violating Art. 36  and
Art. 39 of the Charter.
      In  further  proceedings following the Constitutional
Court’s quashing of the decisions, the ordinary courts will
be  bound, in the sense of § 314h of the Criminal Code,  by
the  legal  proposition  that  the  complainant’s  criminal
offense  may not be qualified, under § 41 para.  1  of  the
Criminal  Code,  as  a  criminal offense  committed  by  an
especially dangerous recidivist.

Notice:  A  Constitutional  Court  decision  can   not   be
appealed.
    
Brno, 13 May 2004