Nusikalstamų veikų idealios bei realios sutapties atribojimo ir bausmių skyrimo problemos

Abstract

The analysis of case law proves that rather frequently the problems arise with the application of Article 63 of the Criminal Code for the Republic of Lithuania, which regulates the imposition of sentence for a number of criminal acts commited by a same offender. It was evidently predetermined because it might be said that the Criminal Code, which had come into force since 1 May 2003, stated new rules for imposition of sentence in case of a number of criminal acts commited by a same offender. When the Criminal Code came into force, these new rules were not clarified by researchers nor by Supreme Court of Lithuania, therefore there appeared an opportunity for inequable case law. This gap is being little by little filled in, though there are a number of problems still to be solved both theoretically and practically. One of these problematic issues is a problem of delimitation of criminal acts‘ forms and notions (a real and ideal coincidence). Case law witnesses that the established notion of ideal coincidence often obstructs a true evaluation of acts manifested in objective reality. For this reason, the most important feature of ideal coincidence is being investigated in this article. However, criticism is not the final goal. After the analysis of court practice, it is suggested to change the present feature of “single act“ into a new, much more capacious feature of “single action “. Then, considering the ideal coincidence, we will be aware that this is the situation when a person commits two or more criminal acts within one single action, as defined in different Articles of the Criminal Code, whilst the real coincidence implies such a situation when a person commits two or more criminal acts, which are defined in different Articles of the Criminal Code, within a number of actions.
When the new Criminal Code came into force, It introduced the differentiation limits for cases when combined sentence should be applied for the consolidated sentences, and when to apply cumulative sentence. However, the norms defining these issues are not clear enough, and for this reason these norms have to be explained by the Criminal Law and Supreme Court of Lithuania.
While analysing one of the ways how sentences can be combined, namely – a partial cumulative sentences – the author notes that there are some cases, when in the process of the imposition of the final sentence upon the person, a certain part of the sentence imposed for separate criminal acts disappears for some unknown reasons. Therefore, the author approves of such case law which states that, while partially cumulative the sentences, it is absolutely necessary to add the part of a milder sentence (of all the sentences imposed) to the part of the heavier sentence imposed for the one of the criminal acts committed; and while combined sentence given for a number of criminal acts committed, one or two final sentences have to be imposed. The final combined sentence must be heavier than the harshiest sentences imposed for separate criminal acts.
While analysing provisions of Article 63, section 5, clause 2 of the Criminal Code, the author approves of the case law which states that the generalization of sentences is possible in the case when a number of acts, although viewed as being of different kinds (one act is a crime, while the other is a criminal misdemeanor) or of different categories (one act is a minor crime, while the other is cosidered to be a more serious crime), are not very different with regard to their danger.
Hereby the author notes that in the process of amending Article 63 of the Criminal Code, the following issues should be taken into consideration: one the one hand, the new norms of the criminal law should not constrict courts by formal rules of combined sentences, and on the other hand, these new norms have to provide some opportunities for possible interpretations, which conribute to the smooth formation of case law.