Abstract
This paper discusses the principle of subsidiarity in criminal law and its definition in the Penal Code. It summarises the basic theoretical approaches to this principle, especially after the Supreme Court's unifying opinion on the interpretation of the provision of Section 12 of the Penal Code and explains the subsidiarity of criminal repression as a general principle based on the notion of social harm and the application of the ultima ratio postulate.
The consequence of this concept is that the principle of subsidiarity of criminal repression remains outside the definition of a criminal offense and is an interpretative and material corrective that aims to prevent the criminal repression in cases of minor offenses. Appropriate assessment of the social harmfulness of a specific crime must be made in the context of the fulfilment of its features by all relevant facts and evaluation of all the relevant circumstances of the case.
It follows from the ultimate ratio that criminal law has a place only where other means of protecting the rights of natural and legal persons are inadequate, ineffective or inappropriate. In this sense, the principle of subsidiarity must be applied in every decision where other rules on its use provide such possibility.
Subsidiarity of criminal repression, like many other principles, applies irrespective of whether or not it is codified.