Principle of subsidiarity of criminal repression

Interpersonal relations are often complicated by irreconcilable differences of opinion or attitudes to life, which often escalate to such an extent that the feuding parties seek help from the civil courts or even the law enforcement authorities. This raises the question of whether the matter in dispute can be brought within the norms of civil or criminal law. For example, a false review published on the Internet may give rise to a private law dispute for the protection of reputation (Article 82 of the Civil Code), as well as to criminal prosecution of the author of such a review for defamation (Article 184 of the Criminal Code), or to proceedings for an offence against civil coexistence (Article 7 of the Act on Certain Offences).

As far as the application of criminal law rules is concerned, in these situations it is not sufficient to merely formally classify the facts under the elements of the offence set out in the Criminal Code. The prosecuting authority is also obliged to take into account the fact that criminal law should be used as a last resort (ultima ratio) to protect rights and interests in society. This means that criminal liability should only be applied when other legal instruments or measures are not sufficient or appropriate to achieve the necessary protection or redress. This principle is enshrined in section 12(2) of the Criminal Code, cited:

„The criminal liability of the perpetrator and the criminal consequences associated with it may be invoked only in socially harmful cases in which the invocation of liability under another legal provision is not sufficient.“

Translated into the example of defamation above, this means that prosecution for defamation is only permissible in cases of the most serious interference with personality rights that cannot be sufficiently remedied by private law. In general, this principle of subsidiarity of criminal repression means that criminal law always plays only a subsidiary role, i.e. the protection of social interests is primarily entrusted to other branches of law. Criminal law is to be applied only when the possibilities of other branches of law are insufficient to protect the interests.

Bělina & Partners law firm s.r.o.

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