Whether the legal regulation and practical application of article 163 of the CC of the Republic of Lithuania comply with the principle of proportionality?

Nagrinėjant LR BK 163 straipsnį kyla veikos kriminalizavimo pagrįstumo bei jo teorinio, bei praktinio taikymo atitikimo proporcingumo principui problemos. Nagrinėjama tema aktuali, kadangi už tėvų pareigų nevykdymą, netinkamą vykdymą arba vykdymą priešingai vaiko interesams numatyta ne tik baudžiamoji, bet ir administracinė bei civilinės atsakomybės, o daugiausia problemų, šio darbo autoriaus nuomone, kyla, kada reikia atriboti baudžiamąją nuo administracinės atsakomybės. Darbo tikslas nustatyti, ar LR BK 163 straipsnio teisinis reglamentavimas ir praktinis taikymas atitinka teisinės atsakomybės atitikties proporcingumo principui reikalavimus Atsižvelgiant į darbo problematiką bei tikslą naudojami empirinis akademinių tekstų analizės, teiginių prasmingumo tikrinimo logikos priemonėmis, objektų sugretinimo arba siejimo metodai, rašytinių dokumentų prasmės nustatymo metodas bei kiti. Pirmojoje darbo dalyje kalbama apie teisės principų svarbą kiekvienoje demokratinėje valstybėje tarp, kurių yra ir Lietuva, o tiksliau, akcentuojama 2 teisės principai - tai proporcingumo principas ir ultima ratio principas. Pateikiami šių principų apibrėžimai, bei išskiriamos šių principų sudedamosios dalys. Akcentuojama tai, kad šių principų suvokimas, tinkamas supratimas padeda atskirti tam tikros teisinės atsakomybės taikymą kalbant apie piktnaudžiavimą tėvų, globėjo ar rūpintojo arba kitų teisėtų vaiko atstovų teisėmis ar pareigomis . Kas itin svarbu turint galvoje tai, kad, kaip jau minėta, BK 163 straipsnis suformuluotas ganėtinai abstrakčiai. Antroji darbo dalis skiriama LR BK 163 straipsnyje numatytos nusikalstamos veikos analizei. Ši dalis, autoriaus nuomone, yra svarbi tuo, kad įstatymo leidėjo numatyta LR BK XXIII skyriaus 163 straipsnio sudėtis nėra aiškiai suprantama, kas gali daryti įtakos netinkamam atsakomybės taikymui ir aiškinimui. Tai yra nepaisant to, jog įstatymų leidėjas yra priėmęs teisės normas, leidžiančias taikyti civilinę bei administracinę atsakomybes dėl netinkamų aiškinamųjų sąvokų, BK 163 straipsnyje susiduriama su šios teisės normos taikymo ir aiškinimo problemomis praktikoje, todėl asmeniui gali būti pritaikomos netinkamos teisės normos, kuriomis jo veika gali būti perkriminalizuota arba jis gali išvengti tinkamos atsakomybės. Darbo pabaigoje pateikiamos išvados ir pasiūlymai.Examining Article 163 of the CC of the Republic of Lithuania, problems arise as to the validity of the criminalization of an act and its theoretical and practical application in accordance with the principle of proportionality. The topic is relevant, as not only criminal but also administrative and civil liability is provided for non-performance, improper performance or performance of parental responsibilities against the best interests of the child, and most problems arise, according to the author of this work, when it is necessary to separate criminal liability from administrative liability. The aim of the work is to determine whether Art. 163 of the CC of the Republic of Lithuania legal regulation and practical application comply with the requirements of legal liability in accordance with the principle of proportionality The first part of the work deals with the importance of the principle of proportionality and the principle of ultima ratio in distinguishing the application of certain legal responsibilities in relation to the abuse of the rights of parents, guardian or custodians or other legal representatives of the child. What is especially important considering that Article 163 of the CC is formulated in a rather abstract way. The second part of the work is devoted to the analysis of the criminal offense provided for in Article 163 of the CC of the Republic of Lithuania. In the opinion of the author, this part is important in that the composition of Article 163 of Chapter XXIII of the CC of the Republic of Lithuania envisaged by the legislator is not clearly understood, which may affect the incorrect application and interpretation of liability. The following research findings were obtained in this thesis: 1. By adopting the provisions of Chapter XXIII of the CC, the legislator established that violations of the rights of the child are a circumstance that can be relied upon in establishing a new type of criminal offenses, providing for liability for abuse of rights or duties of parents, guardians or custodians or other legal representatives of children, which is enshrined in Article 163 of the CC . 2. Examining the case law, criminal law as an ultima ratio and interpretation of this concept in legal theory, it can be concluded that in applying Article 163 of Chapter XXIII of the CC of the Republic of Lithuania in a situation when almost analogous features are described in both the Code of Administrative Offenses and the CC, it is necessary to take into account the purpose of criminal law as a last resort, and to assess not only the totality of objective and subjective features in the case of application of Article 163 of the CC. Criminal liability can only be applied if the measures taken by the parents to affect the child cannot, on the one hand, be justified by the parental right and obligation to bring up the children, and, on the other hand, go beyond what is necessary to establish the offense. Thus, a proper understanding of this concept in the application of the law is crucial in deciding which form of liability will arise. 3. When examining the rise of criminal liability under Article 163 of the CC, it is necessary to properly understand not only the principles of criminal law, such as the ultima ratio principle and proportionality, but also the concepts used in the article such as abuse, oppression (both mental and physical), other cruel the treatment of the child and other features that help to distinguish criminal from administrative liability. Thus, criteria are presented that allow to delimit criminal and administrative responsibilities and to understand the concepts used in Article 163 of the CC. 4. In demarcating criminal and administrative liability, one of the ways of committing a criminal offense is the physical crushing of a child - based on the analysis of case law in order for liability to arise, it is necessary to assess not only the actions taken, but also the causes and purpose of the conflict between the offender and another adult, the directionality of the offender's actions towards the child . Thus, it is pointed out that physical crushing also manifests itself not in single but in repetitive actions. Criminal liability arises when physical violence is used directly against a child, and in the case of administrative liability, when physical violence is used in front of a child. 5. Another way of committing an act provided for in Article 163 of the CC is mental oppression, which should be understood as a concept of mental coercion formed by criminal law. Criminal liability for mental abuse arises when it meets the signs of mental abuse. It is a dangerous, contrary to law, intentional effect on the psyche of another person . Forcing fear (intimidation) to be carried out against the will of the victim in an informational way, and aimed at restricting the freedom of his will to form or exercise his will. It must also be systematic, it must be assumed that the threatener can implement those actions with real actions and real consequences for the child's psyche. While, in the case of administrative liability, meanwhile, the acts of humiliation themselves take the form of words but refrain from justifying those threatening words by acts, there is no intentional element, i. to intimidate the child, the actions themselves are spontaneous. 6. In the case of leaving a child unattended, the time taken for the child to be left unattended and the extent to which the child is able to take care of himself or herself according to his or her level of development have a significant impact on whether criminal or administrative liability arises. In jurisprudence, it is common for a long time to consider such a child to be left unattended, when the child is left unattended for a period that causes physical or psychological discomfort, it should be noted that the child's needs and age are important in this case. Thus, criminal liability arises when neglect causes physical, psychological consequences to the child's health, manifested by various illnesses or their exacerbation, as a result of which the child suffers suffering, which can be both mental and physical. Thus, the time period is described as the consequences for the child. 7. Article 163 of the CC does not specify what is considered to be other cruel treatment of a child, but after the analysis of case law and legal scholars, various non-traditional punishments are considered as other cruel treatment of a child: bullying, insults, abusive, degrading, punishments, forced labor, neglect of the child, and the like . It is such an action contrary to the values of society, which manifests itself in other forms of cruel treatment than physical or mental oppression. It can be done both in action and inaction, but stands out for its cruelty in nature and consequences. 8. The constitutional principle of proportionality is one of the elements of the constitutional principle of a state under the rule of law, which presupposes that the requirement of reasonableness must be observed . When establishing legal restrictions and liability for violations of law, and legal regulation to assess more precisely the individual situation of each person and, on the basis of all relevant circumstances, to select and adapt the restrictive measures applicable to that person to suit his or her individual situation. The legislator of the Republic of Lithuania, envisaging civil, administrative and criminal responsibilities to protect the rights of the child, establishes such legal regulation that creates preconditions for sufficient individualization of restrictions on personal rights and freedoms. However, practical and theoretical problems are encountered due to the fact that Article 163 of the CC presumably requires: clarification, which would allow to properly delimit the forms of legal liability. Practical and theoretical problems arise due to the fact that when applying Article 163 of the CC in practice and analyzing it on a theoretical level, confronted and ambiguous concepts, such as abuse, oppression (both mental and physical), and other cruel behavior are encountered. The terminology of Article 163 of the CC leaves too much room for interpretation. The analysis of case law allows us to conclude that courts often avoid specifying in detail the method of committing an act, simply quoting the entire composition of the crime. As a result, courts are ambiguous in their interpretation and application of the law. As criminal law is the ultima ratio, it can be argued that: the precise naming and reasoning of the accused act in the sentence is necessary, as it justifies the existence of a criminal offense and helps to properly assess the seriousness of the act and impose a sentence. Thus, after evaluating the results of this final work and continuing the scientific analysis of the examined issues, it is concluded that the hypothesis raised at the beginning of the work has been confirmed, the principle of proportionality is partially implemented due to the need for more precise wording. Based on the conclusions of this final work, suggestions are made: 1. Agreeing with some legal scholars, it should be concluded that the notion of abuse should be removed from the rule of abuse by parents, guardians or custodians or other legal representatives of the child, leaving only forms of ill-treatment. 2. Not only a natural but also a legal person is liable for an act provided for in Article 163 of the CC, as well as persons representing and raising a child should be liable in accordance with Article 163 of the CC, regardless of whether the child is a legal representative. This is the offense provided for in Article 163 of the CC, should be held not only de jure but also de facto by the child's representatives, as Article 163 of the CC seeks to protect the rights of the child, which should not be affected by the formal features of Article 163 of the CC, but the real significance of the actions taken by the subject in relation to the rights and interests of the child, which are part of the rights of the child, should be considered. 3. In order to properly understand and apply Article 163 of the CC, it is proposed to formulate it as follows: Article 163 of the CC: Use of criminal coercion against a child 1. The parents, guardians or custodians or other legal representatives of the child and the persons who have actual custody of the child and on whom he or she depends through for using physical violence or coercion, leaving a child unable to take care of himself or herself for a long period of time without supervision which caused him mental or physical consequences and subjecting him or her to cruel or unconventional punishment, neglect or similar cruelty to his or her health or causing them pain shall be punished by a fine or deprivation of liberty, or imprisonment for up to five years. 2. A legal person shall also be liable for criminal offenses committed in accordance with this Article. Thus, the author of this work, agreeing with the opinion expressed by other legal scholars and following the case law, considers that by abandoning the concept of abuse and leaving only forms of cruel treatment and filling in the list of subjects and more precisely describing what is considered other cruel treatment of the child considers that this will help to avoid misinterpretation of complex and therefore ambiguous concepts, as well as to ensure the proper theoretical and practical application of the law, which is at the heart of the principle of proportionality. Teisės fakulteta