“Covid” Theft – A Solved Problem?

The article deals with criminal liability for the crime of theft during the COVID-19 pandemic. The Grand Chamber of the Criminal Division of the Supreme Court unified the case law in its March 2021 decision. First of all, it rejected the automatic application of the state of emergency, declared to combat the pandemic, as fulfilling an element of the qualified offence of theft of “an event seriously endangering human life or health, public order or property” (Article 205(4)(b) of the Criminal Code), and instead set out the requirement of a factual link between the act and the pandemic. However, a deeper criminal law analysis of the meaning of the qualifying facts and consideration of the constitutional context casts some doubt on the correctness of the Grand Chamber’s opinion and subsequent case law. The aforementioned characteristic of the qualified offence can only be fulfilled in the event of an increased threat (expressed in the law) to the protected object (property) in relation to the specific form of the offence of theft. In the case of the COVID-19 pandemic, such a situation occurred during the application of certain emergency measures of the Government (based on a declared state of emergency), namely during a measure restricting movement between districts in relation to the offence of burglary (section 205(1)(b) of the Criminal Code) or during a measure ordering, in principle, a nationwide obligation to cover the respiratory tract in relation to the offence of pickpocketing (section 205(1)(d) of the Criminal Code). The conclusions of the article could also provide some stimulus for discussion on the interpretation of the bases of criminal liability and the drafting of the facts themselves.