The Identification of the Criminal Act Place and its Significance for the State‟s Criminal Jurisdiction
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Abstract
The aim of the article is to analyze the rules of the identification of the criminal act place in the newly adopted Criminal Code of the Republic of Lithuania in 2000. The attention is focused on the difficulties of the identification of the criminal act place, when the act has an international aspect. It is an often case when a criminal act is started in one country and accomplished in another. In the process of investigating the conspiracy acts it often comes out that the conspirators act in different countries. The article also investigates the problem of the identification of the criminal act place when the act is committed in the virtual environment using telecommunication networks.
First of all, the article draws attention to the fact, that paragraph 3 of article 4 of the Criminal Code of the Republic of Lithuania preconditions the problem of the competitive jurisdiction. This conclusion is drawn on the grounds that the analyzed norm obligates to start the criminal prosecution even if only a part of the criminal act has been committed in the territory of the Republic of Lithuania. The author points it out that this is not fair and beside the purpose. Not denying the fact that the most reasoned and logic theory of the identification of the criminal act place is the theory embracing the theories of act and consequences, the author nevertheless suggests to apply the norm establishing the theory differentially.
If the criminal liability is possible only for the commitment of the dangerous act, any kind of effort to detach oneself from the act theory should be recognized as ineffective. Besides, even in cases, when the composite part of the criminal act is material, the fact itself that the consequences have occurred in the territory of a definite state, is not enough to rest on the theory other than of the act while identifying the place of the criminal act. The place of the consequences may be recognized as the place of the criminal act only in case, when the consequences had the most effect there (where it actual takes effect). Therefore a conclusion is made that while solving the problem of the place of the criminal act, the practice of the idealization of the consequence doctrine and thoughtless application should be evaluated negatively. The essential questions cannot be decided only on formal arguments.
In cases when the act was started abroad and ended in Lithuania, the author draws attention to the fact, that the break of the act should be related to the acts of the perpetrator, law enforcement officers or civil persons, due to whom the continuation of the criminal act is stopped. It is not reasonable to identify the end of the criminal act to the detention of the perpetrator.
A lot of attention is given to the identification of the criminal act place, when the act is conspirational. The author criticizes the provision established in the Article 4 of the Criminal Code of the Republic of Lithuania, the application of which, may lead to a conclusion that for the perpetrators acting in different countries, the territories of the countries where the crime had been committed are considered to be the places of the criminal act. According to the author, there cannot be several criminal act places of the crime committed by the conspirators. The place of the commitment of the criminal act should be considered the one, where the perpetrator has realized the features of the objective side of the planned act and the factual places of the other conspirators cannot be influential to the process of investigating the case. In such a case the rule that the culprits acting in a given country co-acted is followed.
Solving a problem of criminal act place identification, when the crime is committed in the virtual environment, the author assumes that this environment is an independent space possessing specific features – a place where it is possible to commit a crime. Taking into consideration this assumption, a conclusion is made, that in such cases in defining the place of the criminal act it is possible to follow a principle that the place of the commitment of the criminal act is the place, where the perpetrator has actually acted.
Finally, the author is trying to prove, that the regulatory norms stipulating the identification of the criminal act place should be not in the article, establishing the principle of criminal jurisdiction, but rather in a separate article. The identification of the criminal act place is important not only when it is necessary to implement the territorial jurisdiction, but also when the implementation of the country’s criminal jurisdiction is grounded on the principles.
First of all, the article draws attention to the fact, that paragraph 3 of article 4 of the Criminal Code of the Republic of Lithuania preconditions the problem of the competitive jurisdiction. This conclusion is drawn on the grounds that the analyzed norm obligates to start the criminal prosecution even if only a part of the criminal act has been committed in the territory of the Republic of Lithuania. The author points it out that this is not fair and beside the purpose. Not denying the fact that the most reasoned and logic theory of the identification of the criminal act place is the theory embracing the theories of act and consequences, the author nevertheless suggests to apply the norm establishing the theory differentially.
If the criminal liability is possible only for the commitment of the dangerous act, any kind of effort to detach oneself from the act theory should be recognized as ineffective. Besides, even in cases, when the composite part of the criminal act is material, the fact itself that the consequences have occurred in the territory of a definite state, is not enough to rest on the theory other than of the act while identifying the place of the criminal act. The place of the consequences may be recognized as the place of the criminal act only in case, when the consequences had the most effect there (where it actual takes effect). Therefore a conclusion is made that while solving the problem of the place of the criminal act, the practice of the idealization of the consequence doctrine and thoughtless application should be evaluated negatively. The essential questions cannot be decided only on formal arguments.
In cases when the act was started abroad and ended in Lithuania, the author draws attention to the fact, that the break of the act should be related to the acts of the perpetrator, law enforcement officers or civil persons, due to whom the continuation of the criminal act is stopped. It is not reasonable to identify the end of the criminal act to the detention of the perpetrator.
A lot of attention is given to the identification of the criminal act place, when the act is conspirational. The author criticizes the provision established in the Article 4 of the Criminal Code of the Republic of Lithuania, the application of which, may lead to a conclusion that for the perpetrators acting in different countries, the territories of the countries where the crime had been committed are considered to be the places of the criminal act. According to the author, there cannot be several criminal act places of the crime committed by the conspirators. The place of the commitment of the criminal act should be considered the one, where the perpetrator has realized the features of the objective side of the planned act and the factual places of the other conspirators cannot be influential to the process of investigating the case. In such a case the rule that the culprits acting in a given country co-acted is followed.
Solving a problem of criminal act place identification, when the crime is committed in the virtual environment, the author assumes that this environment is an independent space possessing specific features – a place where it is possible to commit a crime. Taking into consideration this assumption, a conclusion is made, that in such cases in defining the place of the criminal act it is possible to follow a principle that the place of the commitment of the criminal act is the place, where the perpetrator has actually acted.
Finally, the author is trying to prove, that the regulatory norms stipulating the identification of the criminal act place should be not in the article, establishing the principle of criminal jurisdiction, but rather in a separate article. The identification of the criminal act place is important not only when it is necessary to implement the territorial jurisdiction, but also when the implementation of the country’s criminal jurisdiction is grounded on the principles.
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