Official Qualification of Criminal Offences and its Prerequisites
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Abstract
In this article the author focuses on two newly interpreted aspects of the theory of qualification of criminal offences. The first is official qualification of criminal offences and its limits, the second − the prerequisites of official qualification.
The author gives his support to the arguments that the current theory of qualification of criminal offences is one–sided and incomplete. Several decades ago, it split off as a certain autonomous part of the theory of criminal law. Lithuanian lawyers have to this day been developing it as a component of this theory. This substantially limits the potential of the qualification theory and practical effectiveness. The author believes that the qualification of criminal offences and its theory reaches beyond the sphere of criminal law and its science. In essence, the phenomenon of qualification is a certain activity performed in the sphere of criminal justice. *It is designated for the purpose of making an official determination of whether a committed deed is criminal or non–criminal. This activity is regulated by the provisions of various branches of law. In respect of law, the official qualification of criminal offences constitutes an independent interdisciplinary institute of law, therefore, it calls for a wider doctrine to serve it. It is most important that the relevant parts of criminal procedure law and criminal procedure science are creatively integrated into this institute and its doctrine. There is no such a necessity in respect of the so–called unofficial qualification, which is not imperatively regulated by the provisions of law.
Upon extending the concept of the official qualification of criminal offences and emphasising the moment of activity therein, the attitude to the prerequisites of such an activity is also transformed. Academic sources generally mention two such prerequisites: committed deeds to be qualified, and the norms of criminal law to be used for qualification. The author supplements these prerequisites with two new ones, which are most often ignored in the qualification theory. Primarily, it is the subject who has to act in implementing his duty or right to qualify criminal deeds. Such subjects include not only officers of pre–trial investigation, prosecutors, judges and courts, there are also other participants of criminal proceedings: advocates, suspects, accused, victims, civil plaintiffs and civil defendants. The qualification performed by the latter is significant, and at the same time official, not only in terms of criminal law but in respect of criminal procedure as well. In addition those subjects are entitled or able to qualify criminal deeds by virtue of such a duty or right granted to them. The competence to qualify arises from the norms of criminal law and criminal procedure. It can preliminary be termed as “qualification imperative”, which can be − depending on the circumstances − absolute, relative or discretionary.
The ideas raised in the article, besides compelling to make a revision of the sources of the theory of qualification of criminal offences and to develop this theory, at the same time form the foundation for improving the rules and recommendations of qualification.
The author gives his support to the arguments that the current theory of qualification of criminal offences is one–sided and incomplete. Several decades ago, it split off as a certain autonomous part of the theory of criminal law. Lithuanian lawyers have to this day been developing it as a component of this theory. This substantially limits the potential of the qualification theory and practical effectiveness. The author believes that the qualification of criminal offences and its theory reaches beyond the sphere of criminal law and its science. In essence, the phenomenon of qualification is a certain activity performed in the sphere of criminal justice. *It is designated for the purpose of making an official determination of whether a committed deed is criminal or non–criminal. This activity is regulated by the provisions of various branches of law. In respect of law, the official qualification of criminal offences constitutes an independent interdisciplinary institute of law, therefore, it calls for a wider doctrine to serve it. It is most important that the relevant parts of criminal procedure law and criminal procedure science are creatively integrated into this institute and its doctrine. There is no such a necessity in respect of the so–called unofficial qualification, which is not imperatively regulated by the provisions of law.
Upon extending the concept of the official qualification of criminal offences and emphasising the moment of activity therein, the attitude to the prerequisites of such an activity is also transformed. Academic sources generally mention two such prerequisites: committed deeds to be qualified, and the norms of criminal law to be used for qualification. The author supplements these prerequisites with two new ones, which are most often ignored in the qualification theory. Primarily, it is the subject who has to act in implementing his duty or right to qualify criminal deeds. Such subjects include not only officers of pre–trial investigation, prosecutors, judges and courts, there are also other participants of criminal proceedings: advocates, suspects, accused, victims, civil plaintiffs and civil defendants. The qualification performed by the latter is significant, and at the same time official, not only in terms of criminal law but in respect of criminal procedure as well. In addition those subjects are entitled or able to qualify criminal deeds by virtue of such a duty or right granted to them. The competence to qualify arises from the norms of criminal law and criminal procedure. It can preliminary be termed as “qualification imperative”, which can be − depending on the circumstances − absolute, relative or discretionary.
The ideas raised in the article, besides compelling to make a revision of the sources of the theory of qualification of criminal offences and to develop this theory, at the same time form the foundation for improving the rules and recommendations of qualification.
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Please see Copyright and Licence Agreement for further details.
