Problems of Criminalization, Construction and Refinement of Abuse of Office in the Criminal Code of Lithuania
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Abstract
The article deals with the concept of abuse of office as defined in the Criminal Code of the Republic of Lithuania. The abuse of office is the most frequent criminal deed against public service and execution of public interests. The concept of abuse of office involves numerous attributes that have to be proved during the investigation of criminal cases of abuse of office. However, some problems prevail in the practice of law enforcement agencies dealing with the investigation of abuse of office. First and foremost, the attribute of major harm to the state, international public organization, natural or legal person remains unclear, thus creating ambiguous interpretations.
The attempts to clarify the attribute in question are taken by prosecution as well as the courts dealing with the abuse of office. However, this leads to superfluous attempts of stating the same attribute in different cases. The author presents theoretical arguments and examples of criminal cases which lead the suggestions on the interpretation of the attribute of major harm. In addition the author supports the opinion by which major harm as material damage should not be calculated according to the rules of the old Criminal Code. By presenting the position of the Supreme Court of Lithuania, the author denies the margin of 250 Minimum Wage Unit (MWU). The more appropriate definitive margin of 150 MWU is suggested and supported by the systematic analysis of various chapters of the Criminal Code. The author discusses problematic issues of insufficient balance between the Articles 225 and 228 of the Criminal Code and presents some theoretical suggestions.
Another major failing presents the structure of the Article 228 of the Criminal Code of the Republic of Lithuania which does not foresee the abuse of office as a criminal offence, thus a more lenient criminal responsibility is impossible. The existing structure of liability for the abuse of office presents a dual approach: the abuse of office in cases of nonmajor harm for public interests is prosecuted as a disciplinary offence. Cases of abuse of office that causes major harm are prosecuted according to the criminal legislation. The author points out that a such legal duality creates situations when disciplinary prosecution is insufficient (or even non-existent in cases of official’s resignation) and at the same time criminal prosecution is impossible. As a result, criminal responsibility lacks much needed balance. The interjacent position would be welcome as it would present a real approach to the offender without being too harsh. Thus, the author suggests various improvements by implementing the concept of abuse of office as a criminal offence. The author presents his own position on the rulings of the Supreme Court in cases of abuse of office which in some cases are too formal and based only on legal phrasings rather than on principles of justice.
The attempts to clarify the attribute in question are taken by prosecution as well as the courts dealing with the abuse of office. However, this leads to superfluous attempts of stating the same attribute in different cases. The author presents theoretical arguments and examples of criminal cases which lead the suggestions on the interpretation of the attribute of major harm. In addition the author supports the opinion by which major harm as material damage should not be calculated according to the rules of the old Criminal Code. By presenting the position of the Supreme Court of Lithuania, the author denies the margin of 250 Minimum Wage Unit (MWU). The more appropriate definitive margin of 150 MWU is suggested and supported by the systematic analysis of various chapters of the Criminal Code. The author discusses problematic issues of insufficient balance between the Articles 225 and 228 of the Criminal Code and presents some theoretical suggestions.
Another major failing presents the structure of the Article 228 of the Criminal Code of the Republic of Lithuania which does not foresee the abuse of office as a criminal offence, thus a more lenient criminal responsibility is impossible. The existing structure of liability for the abuse of office presents a dual approach: the abuse of office in cases of nonmajor harm for public interests is prosecuted as a disciplinary offence. Cases of abuse of office that causes major harm are prosecuted according to the criminal legislation. The author points out that a such legal duality creates situations when disciplinary prosecution is insufficient (or even non-existent in cases of official’s resignation) and at the same time criminal prosecution is impossible. As a result, criminal responsibility lacks much needed balance. The interjacent position would be welcome as it would present a real approach to the offender without being too harsh. Thus, the author suggests various improvements by implementing the concept of abuse of office as a criminal offence. The author presents his own position on the rulings of the Supreme Court in cases of abuse of office which in some cases are too formal and based only on legal phrasings rather than on principles of justice.
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Articles
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Please see Copyright and Licence Agreement for further details.
