Exemption from Criminal Liability in the Context of the Constitution and Constitutional Jurisprudence
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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, wThe fundamental and cardinal changes in the Lithuanian legal system, law-making and its tendencies, the jurisprudence of the Constitutional Court, as well as theoretical works of legal scientists and practitioners testify that at present in the domestic policy of the state the issues of entrenchment of human rights and freedoms in laws, the constitutionality of their implementation and protection, efficiency, the legal regulation of the interaction among the individual, society and the state when ensuring the priority of the human being and the citizen and similar questions have become of utmost importance. All this implies that in modern criminal law and criminal procedure law one must pay more attention to the ensuring of the rights and freedoms as well as dignity of the victim and to the defence and protection of these values.
It is worth noticing that while seeking to attain the above-mentioned objectives, in criminal law and in criminal procedure one must establish the legal regulation which would ensure both the priority of legitimate interests of the victim and which, alongside, would not ignore the interests of the culprit nor those of the whole society and the state. Thus, the aforesaid legal regulation should co-ordinate the private interests (of the victim and the culprit) and the public interests (of the state and society).
The institute of exemption of criminal liability is defined as a concrete form of realising, in criminal law, of the striving for an open, just and harmonious civil society and state under the rule of law, which is entrenched in the Constitution. Alongside, it is pointed out that this institute reflects the efforts of the legislator to seek, by means of penal policies, for co-ordination and agreement of different interests. Therefore, not only legal preconditions were created in it in order to realise the provisions of the principle of necessity of criminal liability, but also the principles of a state under the rule of law, humanism, justice, equal rights, differentiation of liability and individualisation of punishment (proportionality between the danger of committed criminal deed and the size of the from of liability provided for the committed deed), economy of judicial sanctions and other constitutional principles.
The expression of the principles of a state under the rule of law, humanism, justice, equal rights, differentiation of liability and individualisation of punishment (proportionality between the danger of committed criminal deed and the size of the from of liability provided for the committed deed), economy of judicial sanctions and other constitutional principles in the institute of exemption of criminal liability is line with the fundamental requirement that all constitutional principles are of equal value and constitute a single system, that it is not permitted to interpret some constitutional principles and give their expression in a law in a way so that ensuring of certain constitutional principles creates preconditions to restrict or violate other constitutional values. Therefore, under the Constitution, a democratic state under the rule of law must be equally interested not only in detection of criminal deeds and the persons who committed them and to impose just, reasonable and proportionate punishment on the culprits or resort to other criminal judicial sanctions, but also in taking care of comprehensive protection of the victim and restoration of his violated rights and legitimate interests.hich 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.
It is worth noticing that while seeking to attain the above-mentioned objectives, in criminal law and in criminal procedure one must establish the legal regulation which would ensure both the priority of legitimate interests of the victim and which, alongside, would not ignore the interests of the culprit nor those of the whole society and the state. Thus, the aforesaid legal regulation should co-ordinate the private interests (of the victim and the culprit) and the public interests (of the state and society).
The institute of exemption of criminal liability is defined as a concrete form of realising, in criminal law, of the striving for an open, just and harmonious civil society and state under the rule of law, which is entrenched in the Constitution. Alongside, it is pointed out that this institute reflects the efforts of the legislator to seek, by means of penal policies, for co-ordination and agreement of different interests. Therefore, not only legal preconditions were created in it in order to realise the provisions of the principle of necessity of criminal liability, but also the principles of a state under the rule of law, humanism, justice, equal rights, differentiation of liability and individualisation of punishment (proportionality between the danger of committed criminal deed and the size of the from of liability provided for the committed deed), economy of judicial sanctions and other constitutional principles.
The expression of the principles of a state under the rule of law, humanism, justice, equal rights, differentiation of liability and individualisation of punishment (proportionality between the danger of committed criminal deed and the size of the from of liability provided for the committed deed), economy of judicial sanctions and other constitutional principles in the institute of exemption of criminal liability is line with the fundamental requirement that all constitutional principles are of equal value and constitute a single system, that it is not permitted to interpret some constitutional principles and give their expression in a law in a way so that ensuring of certain constitutional principles creates preconditions to restrict or violate other constitutional values. Therefore, under the Constitution, a democratic state under the rule of law must be equally interested not only in detection of criminal deeds and the persons who committed them and to impose just, reasonable and proportionate punishment on the culprits or resort to other criminal judicial sanctions, but also in taking care of comprehensive protection of the victim and restoration of his violated rights and legitimate interests.hich 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.
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