Court sparks debate on gun use in defense

Returning one night to his central Prague home, radio host Dan Kostka found a pair of thieves burgling his apartment. He moved quickly to confront the intruders with a kitchen knife, causing them to flee.

"In the first flush of shock, you simply act and defend your property," Kostka, 35, said. "There is no time to think it through. The emotions are huge. If I had had a gun, I'd have used it to defend myself."

But under an advisory opinion issued by the Supreme Court (NS) in mid-March, Kostka would face charges of attempted murder for using a gun in an incident just like this. 

The NS decided that robbery and property theft are not extraordinary enough emotional circumstances to warrant the use of deadly force. Whereas previously, those defending their property may have faced charges of manslaughter if they overstepped their bounds, they should now be tried for murder, according to the court.

The shift has sparked heated debate about what constitutes self-defense, and Kostka said the court opinion points to judges that are "far from reality."

"If this happened to one of the judges, I'm sure they would have done the same as I did," Kostka said. "In this country, the rights of the thieves are considered more important than the rights of law-abiding citizens."

Kostka is not the only one voicing displeasure. Jan Tetřev, a gun historian and an authorized gun expert at the District Court in Hradec Králové, said that "defending your property and family is absolutely legitimate since the state does not guarantee you sufficient safety and convicts those who defend themselves."

He referred to a 2009 case in Ivančice, near Brno. A 52-year-old hunter and scrap-yard owner, Karel Bašta, had been robbed on 10 separate occasions. Right after an 11th robbery took place, Bašta spotted a van driving away from his property, and he shot at the vehicle with his legally owned rifle. One shot penetrated a van door and injured the leg of one thief, and another hit the back window, but the bullet ricocheted and hit a girl in the face, causing her to lose an eye.

Bašta was sentenced to six years in prison for attempted murder, while the thieves got one and a half years and a fine. Bašta appealed his case to the High Court in Olomouc and the Supreme Court in Brno, both of which rejected his appeals.

The NS in Brno insists its advisory opinion does not contradict the right to defend life, health and property, even with a gun if necessary.

Bašta's appeal was dismissed on the basis that "you cannot kill a thief fleeing the scene when the theft has been discontinued, because [at that point] it is not defense of property but revenge," said the court in its ruling.

NS spokesman Petr Knötig told The Prague Post that this latest advisory opinion comes now to clarify the crimes of murder and manslaughter under the amended Criminal Code that went into effect in January 2010. The opinion will be recorded in the collection of judgments and opinions and is not binding but instructs judges on how to proceed in the future.

Lawyer Tomáš Sokol, known for his case against the far-right Workers Party that led to the eventual banning of the party, emphasizes that the NS opinion uses the qualifying statements "may be prosecuted" and "less serious theft" when referring to the potential of murder charges being brought against those using force to halt intruders.

'Do not defend yourself'

"The court simply concluded that the offender has no reason for such strong anger and that property cannot be defended with guns," Sokol said.

He added that the "seriousness of the theft will always be a taken into account."

However, Tetřev argues that the court's conclusion conveys a clear message to the public.

"Do not defend yourself. Even if they rob you several times, you will be prosecuted," he said.

"There is a saying among gun owners that it is better to be judged by 12 than carried by six."

Andrea Šabatová, chairwoman of the Czech Helsinki Committee, a human rights watchdog group, agrees that people should have the right to defend themselves, but she nonetheless said the ruling in Bašta's case was the correct one. 

"The reaction was inappropriate, since the value of life is higher than that of property," she said.

But Bašta continues to draw support and remains at the center of a philosophical debate about people's rights to defend their property.

Vojtěch Adam, the mayor of Ivančice, told The Prague Post that the town cannot accept the Supreme Court's opinion.

"We have known Bašta for years, and he has always been a law-abiding citizen who had no conflicts whatsoever," Adam said.

Bašta will file a complaint to the Constitutional Court. He also seeks a pardon from President Václav Klaus.

"Justice cannot be only a word in the dictionary, and laws are here to protect honest people, not bad guys," Adam said.

There are 700,551 registered guns in the Czech Republic. A healthy person with no criminal record must pass a 500-question psychological test and demonstrate capabilities in handling a gun to be eligible for a permit.

Klára Jiřičná can be reached at
kjiricna@praguepost.com