Legal classification of the attempted theft during the state of emergency in the context of the COVID-19 pandemic

The Supreme Court, sitting as the Grand Chamber of the Criminal Division, in its judgment of 16 March 2021 (Ref. No. 15 Tdo 110/2021) addressed the issue concerning legal classification of the attempted theft during the state of emergency. The Grand Chamber had to unify the contrasting views of fourth and sixth chamber of the Criminal Division concerning the conditions for using higher penalty for a theft according to Section 205 (2) and (4) (b) of the Criminal Code. This provision in its paragraph 4 (b) stipulates that the offender shall be punished with higher penalty if the theft is committed during an “event seriously threatening the life or health of people”.
The Supreme Court stressed that the state of emergency itself does not constitute an “event seriously threatening the life or health of people” and that the conditions for “aggravated” classification of the criminal offence (and thus for imposing higher penalty) according to the Criminal Code are met irrespective of the declaration of the state of emergency. The decisive aspect is the mere existence of the event seriously threatening the life or health of people (e.g. the pandemic) and not its declaration by the government as the state of emergency.

Furthermore, the reason for using higher penalty during such adverse events is according to the Grand Chamber not the event itself but the offender’s own action when, inter alia, he or she abuses the existing severe conditions in order to commit a criminal offence, or that this event enables or facilitates committing a criminal offence. There must be therefore not only temporal but also material connection between the act committed and the event seriously threatening the life or health of people.