CYIL Vol. 4, 2013

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.)