Baudžiamoji atsakomybė už pasikėsinimą padaryti nusikalstamą veiką netiesiogine tyčia – kelias link nuoseklesnės ir pagrįstesnės baudžiamosios politikos?

Abstract

This article discusses the problem of the non-criminalisation of an attempt to commit a crime with dolus eventualis. The present judicial practice and the doctrine of the criminal law in Lithuania maintains that only direct intention may support conviction for an attempt. If the court did not establish a direct intention to commit a crime, the offence was to be qualified as completed subject to the consequences of the act which in fact occur. The author presents a comparative analysis of various criminal cases which shows that the present rules of the qualification of attempted offences lead towards unreasonably mild convictions. In the cases where very dangerous but unintentional acts accidentally do not cause any or cause just petty consequences, the offences are qualified just as offences against public order or petty offences against health. These cases make a contrast to the cases where evidently less dangerous unintentional acts cause grave consequences (i.e. human death) and are qualified as completed manslaughter. On the whole, it creates evident inconsistency in sentencing. The author indicates that this inconsistency could be overcome, if the courts ceased to qualify non-negligent crimes subject to the consequences which in fact occur and would convict defendants for the attempted offences instead.