Kankinimas kaip asmens atsakomybę sunkinanti aplinkybė (LR BK 60 straipsnio 1 dalies 4 punktas): Lietuvos teismų praktikos vertinimas

Abstract

The purpose of this article is to analyse the issues related to Lithuanian positive obligation to ensure everyone’s protection within their jurisdiction from ill-treatment, as defined by the Article 3o of the European Convention on Human Rights (namely cases where violence is inflicted by private individuals in a private sector). Torture, in Lithuanian Criminal Code, is criminalised as qualifying attribute in the Murder (article 129o, Lithuanian Criminal Code), Severe health impairment (article 135o, Lithuanian Criminal Code), Non-severe health impairment (article 138o, Lithuanian Criminal Code), Causing physical pain or a negligible health impairment (article 140o, Lithuanian Criminal Code), and such as a personal aggravating circumstance - “the act has been committed by torturing the victim or subjecting him to taunting” (article 60o, Lithuanian Criminal Code) to individualize punishment to defendant. According to previous researches (Romualdas Draksas and Regina Valutyte), the existing criminal liability of torture it is not enough. They believe that the Lithuanian Criminal Code should allow a direct criminal liability of action of torture. In this article, the author wanted to verify if there’s really a need of a direct criminal liability in Lithuanian Criminal Code. The author argues that, in the Lithuanian legal system, there is article 60o of the Lithuanian Criminal Code on which basis courts can punish defendant of acts of torture and individualise his punishment, adjusting it to his actions. Therefore, the author wanted to investigate Lithuanian case-law related to article 60o part 1, point 4 of the Lithuanian Criminal Code and ascertain does acts of torture in Lithuanian legal system are considered as a torture and punished without reservation. In other words, it is important to understand if the provision of the article 60o of the Lithuanian Criminal code ensures effective safeguarding from the torture, inhumane or