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PAVEL CABAN
CYIL 4 ȍ2013Ȏ
Paragraph 1 of section 8, titled as “subsidiary principle of universality”, provides
that “[t]he Czech law shall be applied to determine the liability to punishment
for an act committed abroad by a foreign national or a stateless person with no
permanent residence permit on the territory of the Czech Republic, if: (a) the act is
also punishable under the law in force on the territory where it was committed; and
(b) the offender is apprehended on the territory of the Czech Republic and was
not extradited or surrendered for criminal prosecution to a foreign state or other
subject authorised to conduct criminal prosecution.” (As of 1 January 2014, this
section will be supplemented with subparagraph (c), according to which the third
condition for the application of this provision will be the request of a foreign state
or other competent subject (international court), which requested the extradition
of the alleged offender, to prosecute the offender in the Czech Republic.) This
provision, which encapsulates in general terms the obligation of
aut dedere aut
iudicare
, could also, in principle, under conditions mentioned in the cited provision
(double criminality, request by another state etc.) be used for prosecution of crimes
under “customary universal jurisdiction” – if section 7 could not, for any reason,
be used for this purpose.
In addition, the above sections 7 and 8 are supplemented by section 9, which
provides that (para. 1) criminality of an act shall be assessed according to the law
of the Czech Republic also if an international treaty incorporated into Czech law
stipulates so; and (para. 2) that the provisions of sections 4 to 8 shall not apply
if it is not admissible according to an international treaty. Here it suffices to state
that the Czech Republic is a party to a number of above mentioned multilateral
conventions and bilateral treaties containing the principle of
aut dedere aut iudicare
and
“contractual universal jurisdcition”
.
Theoretically, some of the above provisions should make it possible to exercise,
under conditions mentioned above, customary universal jurisdiction, applying
imprisonment for twelve to twenty years or to an exceptional sentence of imprisonment.
(2) The same sentence shall be imposed to anyone who publicly incites commission of the act referred
to in sub-section (1).
(3) Preparation is criminal.”
Crimes against humanity are defined in section 401: “(1) Whoever commits within an extensive and
systematic attack aimed against civilians: (a) extermination of people, (b) enslavement, (c) deportation
or forced transfer of a group of civilians, (d) rape, sexual slavery, forced prostitution, forced pregnancy,
forced sterilisation or other forms of sexual violence, (e) persecution of a group of civilians on political,
racial, national, ethnic, cultural or religious grounds, on sex or another similar grounds, (f) apartheid or
another similar segregation or discrimination, (g) illegal restraint, kidnapping to an unknown location
or any other restriction of personal freedom with following involuntary disappearance of persons, (h)
torture, (i) murder, or (j) another inhumane act of similar nature, shall be sentenced to imprisonment
for twelve to twenty years or to an exceptional sentence of imprisonment.
(2) Preparation is criminal.”
War crimes are defined in several provisions enuncianted above. (Also, for example, the crime of torture
could be prosecuted under section 7(1) of the Criminal Code, irrespective of a foreign request for the
offender’s extradition.)