Psichinės prievartos samprata baudžiamojoje teisėje

Abstract

The questions related to the mental violence are very actual both in theory of criminal law and in practice of justice. The author of the article tries to determine the place of the mental violence in the net of related notions of criminal law such as threat, frightening, terrorizing, blackmail and other, also deals with the main ways of prohibition of the mental violence by Criminal code. In this aspect, the author distinguishes the mental violence as a separate crime (delicta sui generis) and as means of compulsion. As delictum sui generis only the most dangerous kinds of threat are prohibited by criminal law, while the punishability of mental violence as means of compulsion depends on the aims seeking by the user of coercion. These aims are very important criteria solving the problem of danger and need to criminalize certain kinds of mental influence upon a victim.
Trying to expose the conception of mental violence, the author offers to regard it as the unity of outside and inside elements of criminal conduct. He also gives his own definition of mental violence as intentional dangerous mental influence upon a victim trying to frighten him at the negative consequences that will be caused by subsequent action or inaction of the violator. The main aspects of outside part of mental violence are the frightening influence upon a victim, danger and diversity of the ways it can be manifested. The inside part of mental violence must be expressed by intent to frighten a victim. This is the most important criteria to identify some kind of action as mental violence.
The special notice is taken in the article to the essential aspects of legal appraisal of mental violence. This process always manifests itself by necessity to answer if the threat was real and what kind of threat it was. The author throws light on various theories of „reality of threat” and comes to the conclusion that the dominating method of appraisal of the threat from the position of the victim’s comprehension cannot be regarded as optimum theoretical decision. This method contradicts with the principle of incrimination based on the inside (subjective) part of a criminal act. The author upholds the position that the questions, if the threat is real and what kind of threat it is, can be properly solved only from the content of intent of the violator. To substantiate the given proposals the author refers to both the theoretical literature and the materials of criminal cases including the sentences of courts in force.