Leading a Proper Life as a Decisive Factor in Sentencing

There are numerous challenges a judge may encounter when determining the appropriate sentence to impose. These range from identifying the purpose of the proposed punishment, considering the defendant's personal and financial circumstances, incorporating their criminal history, evaluating the enforceability of the sentence, and taking into account procedural conduct such as a confession of guilt. According to current legal regulation, there are approximately 70 relevant factors the court must consider [1], yet these are typically not defined in legislation, and no clear statutory guidelines exist for their application in sentencing. From the perspective of individualized sentencing, the legislator appropriately opted for indeterminate legal terms. Too rigid a framework could result in injustice, as no legal definition can anticipate all practical variations. This approach is also reflected in the jurisprudence of the Constitutional Court, which emphasizes the individuality of each offence and offender, rejecting the possibility of generalization. [2] 

However, when viewed from the standpoint of legal certainty, the use of indeterminate legal terms in sentencing discretion may also raise doubts about the fairness of a punishment. Consistency and predictability in judicial decision-making are principles just as vital as individualized justice. [3]   It can hardly be presumed that the legislator intended to create a situation where identical conduct might lead to radically different punishments solely based on which judge or prosecutor is assigned. [4]

One of the most significant factors influencing whether a custodial sentence will be imposed (or alternatively suspended) is the expectation that the offender will lead a proper life. [5]  This is also the factor which, for me as a prospective judge, presents the greatest interpretive challenge. I believe it is applied inconsistently and contradictorily, which is unacceptable where it affects the ultima ratio of criminal law—the imposition of imprisonment. [6] This paper therefore seeks to outline the structural inconsistency of how this factor is currently formulated and used to decide whether imprisonment is warranted. I will also analyse guidance provided by the Constitutional Court in applying this criterion and assess whether it offers sufficient support for sentencing decisions. In conclusion, I will propose a solution I believe to be most coherent under current legislation (without suggesting a de lege ferenda reform), including potential positive outcomes.

It should be noted that I am addressing only the use of “leading a proper life” as a factor in determining the imposition or modality of imprisonment. Its use in determining alternative sentences or as a mitigating factor under Section 41 letter p) of the Criminal Code is, in my view, appropriate, as it operates in those contexts as a modifying, rather than decisive, circumstance.

The Notion of Leading a Proper Life and Its Interpretation

“Leading a proper life” is an indeterminate legal concept whose interpretation is left to the courts. Only the Constitutional Court has provided a more detailed elaboration. In decision I. ÚS 1202/17, it defined two basic meanings: the first is a minimum threshold for a proper life, i.e. the requirement not to engage in criminal conduct; the second describes a “lifestyle that corresponds to the prevailing values in society or dominant conceptions of a proper life in contemporary society”. [7] The latter quality of life, however, may only be required as a trade-off for mitigating punishment, meaning it applies to those who have already breached the social contract by committing a criminal offence. In this respect, the Constitutional Court refers to the imposition of reasonable obligations under Section 48(4) of the Criminal Code—demands addressing legal behaviour such as abstaining from alcohol or gambling.

In my view, this latter conception can only be applied retrospectively over a defined period, typically in the context of conditional release. If we momentarily set aside the first definition and focus on the qualitative expectation of a lifestyle defined by societal values, it becomes clear that this is relevant only for individuals who have already committed an offence. The Constitutional Court, in paragraph 21 of the cited decision, emphasized that the requirement of legal certainty and predictability implies that the offender must understand what obligations they must meet to be considered as leading a proper life. If, as part of a sentence, the offender is required to comply with specific conditions—such as avoiding certain environments or attending vocational training—then it is possible to retrospectively assess their conduct and determine predictably whether it meets the proper life standard.

Problems arise when this factor is assessed during the initial sentencing phase. Under Section 55(2) of the Criminal Code, for offences punishable by up to five years' imprisonment, an unsuspended custodial sentence may be imposed only if no other form of punishment would lead the offender to lead a proper life. The Constitutional Court's outlined approach is conceivable in the case of a repeat offender who either continues to commit crimes (i.e. fails to meet the first definition) or previously failed to comply with qualitative conditions (second definition).

A typical example might be a repeat petty thief who had been ordered to abstain from gambling, as the court previously found a link between gambling-related financial distress and their offending. Although gambling is not criminalised, it may justify a custodial sentence for a subsequent theft offence if the individual has relapsed and once again faces financial hardship.

But how should the court proceed in the case of a first-time offender or a repeat offender without previously imposed obligations? How is the absence of a proper life standard determined and justified in such instances? Should it follow that, regardless of the crime's seriousness, first-time offenders should never receive unsuspended custodial sentences for offences carrying a maximum of five years' imprisonment? [8] 

Leading a Proper Life within the Sentencing Framework

The seriousness of the offence should be the fundamental criterion in sentencing, especially given that the 2009 Criminal Code is based on the principle of proportionality. Section 38 of the Code provides that criminal sanctions must be imposed with regard to the nature and seriousness of the offence and the circumstances of the offender. The Explanatory Report also emphasizes that the sentencing system is built on the principle that punishment should reflect the seriousness of the crime and the personality of the offender. [9] Section 39(2) further specifies that seriousness is to be assessed by the method of commission, consequences, circumstances, the offender’s identity, intent, motive, or purpose. This, in my view, corresponds to Von Hirsh’s “desert model” of proportional punishment based on harm caused and culpability. [10]

The earlier described situation (of a first-time offender) contradicts this framework. Here, the seriousness of the offence has no effect on the form of punishment, as the decisive factor becomes whether the offender is expected to lead a proper life.

Furthermore, if the offender’s previous lifestyle—listed in Section 39(1) as a factor to be considered in sentencing—is to determine whether imprisonment is imposed under Section 55(2), we encounter problems in applying the Constitutional Court’s definitions. The Court clearly held that the offender must be aware of the conditions of a proper life to meet legal certainty and predictability. This is logically impossible when assessing someone’s past life with no defined expectations. Should an individual who committed only a minor offence but has substantial debt—possibly due to gambling—be imprisoned? Or should imprisonment be imposed because their lifestyle, while not criminally punishable, is societally unacceptable and unlikely to change? Does the application of such a standard to non-criminal behaviour align with the principles of subsidiarity in criminal repression and the ultima ratio nature of imprisonment?

Conclusion

This paper has attempted to identify structural inconsistencies and contradictions in how the requirement to lead a proper life—under Section 55(2) of the Criminal Code—is currently formulated and applied. The core issue lies in evaluating non-criminal conduct as a decisive factor in sentencing, thereby determining the future of the accused. Even the guidance offered by the Constitutional Court—which itself acknowledged the vague nature of this concept and inconsistent judicial practice [11] —is not universally applicable. 

I do not find persuasive the argument that judges should rely on moral intuition or professional experience. This ignores the position of junior judges who lack sufficient case exposure to draw upon. There is also no accessible database of judgments that would allow comparison of how specific factors influenced sentencing in past cases. [12] Moreover, our moral instincts are rarely precise enough to guide decisions in borderline scenarios. [13] We cannot assume that sentencing will only ever involve straightforward cases with clear outcomes.

It is the role of general courts to interpret indeterminate legal terms, and the Supreme Court is responsible for unifying judicial practice. [14] Jurisprudence should thus be the primary tool for resolving the aforementioned issues. If the current system is meant to limit judicial discretion through such terms, it is essential—if legal certainty is to be respected—that courts interpret them consistently and that judges can rely on precedent. This could ultimately strengthen the principle of individualized sentencing, as clearer definitions of a proper life would require more thorough reasoning when departing from established case law.

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Suggested citation: Šmolková, Helena, Leading a Proper Life as a Decisive Factor in Sentencing, CHR - Student Blog, 25/5/2025, https://www.chrprfcuni.com/en/post/leading-a-proper-life-as-a-decisive-factor-in-sentencing

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[1] DRÁPAL, Jakub. How to Structurally Impose and Propose Sentences While Maintaining Full Judicial Discretion: Seven Phases of Sentencing. Online. Public Prosecution Journal. 2023, Vol. 2023, No. 6, pp. 16–28. ISSN 1214-3758. Available at: https://www.aspi.cz/products/lawText/7/323644/1/2. [accessed 2025-04-27].

[2] Judgment of the Constitutional Court of the Czech Republic, dated 14 April 2020, file no. IV. ÚS 950/19, para. 81.

[3] See also: Judgment of the Constitutional Court of the Czech Republic, dated 28 November 2018, file no. II. ÚS 482/18, para. 27, where the Court noted that ambiguity in key legal concepts undermines the principle of legal certainty and predictability.

[4] DRÁPAL, Jakub and ŠOLTÉS, Michal. Differences in Sentencing and Sentencing Proposals: Results of Two Experiments. In: Criminal Law with a Human Face: In Memory of Marie Vanduchová. Wolters Kluwer, 2021, pp. 51–69. ISBN 978-80-7598-879-9.

[5] See Sections 55(2), 81(1) and 88(1) of the Criminal Code of the Czech Republic.

[6] See Section 38(2) of the Criminal Code of the Czech Republic.

[7] Judgment of the Constitutional Court of the Czech Republic, dated 15 August 2017, file no. I. ÚS 1202/17, para. 20.

[8] Except in extreme cases where the defendant explicitly states during the hearing that they intend to reoffend immediately upon release.

[9] Explanatory Report to Act No. 40/2009 Coll., the Criminal Code, General Part.

[10] VON HIRSCH, Andreas. Deserved Criminal Sentences. Hart Publishing, 2017. ISBN 9781509902699.

[11] I. ÚS 1202/17, para. 22.

[12] DRÁPAL, Jakub. Formulating and Specifying the Principles of Sentencing: Foreign Approaches and Solutions Suitable for the Czech Legal System. Online. Public Prosecution Journal. 2020, Vol. 2020, No. 6, pp. 43–55. ISSN 1214-3758. Available at: https://www.aspi.cz/products/lawText/7/286181/1/2. [accessed 2025-04-27].

[13] VON HIRSCH, Andreas. Deserved Criminal Sentences. Hart Publishing, 2017, p. 7. ISBN 9781509902699.

[14] I. ÚS 1202/17, para. 22.