Atleidimo nuo baudžiamosios atsakomybės kaltininkui ir nukentėjusiajam susitaikius procesinės problemos

Abstract

Under the Constitution, the procedure of exemption from criminal liability after reconciliation of the culprit and the victim must be regulated in the code of criminal procedure. The doctrine of criminal law does not doubt that the question of exemption from criminal liability may only be decided after the person who has committed a criminal act is found guilty; if this has not been done, the presumption of innocence is functioning, thus, the person who has committed a criminal act must be regarded innocent. Under the Constitution, it only a court can find a person guilty. Therefore, under the Criminal Code and the Code of Criminal Procedure, only the courts are entitled to exempt from criminal liability, inter alia upon reconciliation of the culprit and the victim. However, the purpose of the legislator to form the procedure of exemption from criminal liability after reconciliation of the culprit and the victim, which would be in line with the purpose of a state under the rule of law, is ignored in court practice. The analysis of court practice shows that in reality the issue of application of Article 38 of the Criminal Code is decided by the prosecutor, but not by the court: in such cases the court only a formally confirms the material of pre-trial investigation and assents to the decision of the prosecutor, thus, the court, as a rule, plays a secondary role. Notably, such a situation is not in line with the constitutional concept of a Court as an institution which administers justice and unreasonably limits the obligation of the court.
Thus, substantive legal grounds of application of Article 38 of the Criminal Code do not have a sufficiently detailed procedural form (order) of their implementation. It means that proper legal procedural regulation implementing the requirements of the Criminal Code are lacking in the Code of Criminal Procedure. The institute of exemption from criminal liability after reconciliation of the culprit and the victim is not harmonised in criminal law and the law of criminal procedure - the Code of Criminal Procedure provides for only a fragmentary procedure of application of this institute. Such obscurity and ambiguity shows a gap between criminal law and criminal procedure law, i.e. a gap between the content and form of the same legal institute. It is evident that the purpose of the Article 38 of the Criminal Code is met only partly in practice.