MAŽAREIKŠMIŠKUMO KONCEPCIJOS KILMĖ IR BAUDŽIAMOJI TEISINĖ REIKŠMĖ LIETUVOS TEISMŲ PRAKTIKOJE

Abstract

This article, in accordance with the doctrine of criminal law and court practice, seeks to evaluate the current legal regulation of the institute of insignificance in the Criminal Code of Lithuania and its application in court practice. The aim of the article is to determine the origin of insignificance and its basic idea, which in current legal science and practice is recognized as de minimis and/or the nullum crimen sine periculo sociali principle. It will also determine whether the current case law applies the notion of insignificance according to the legal purpose of this institute. Historical and international analysis of the de minimis principle has shown that insignificance can be one of the criteria (in addition to the ultima ratio and other principles) in assessing the necessity of criminalizing/decriminalizing behaviour. It may legally determine the offense as harmless (non-criminal), or deny the objective (actus rea) or subjective features of the criminal offense (mens rea). Additionally, - in accordance with the criteria of the necessity of criminal liability, effectiveness, and economic expediency - insignificance can be the basis for the absence of prosecution in a breach of public interest. The Criminal Code of Lithuania has established a mixed model, which has no analogue in the criminal laws of foreign countries. According to the concept of insignificance enshrined in the criminal law of Lithuania, this is not the basis for justification or non-prosecution, but the basis for release from criminal liability. The court must assess the individual elements of the crime through the prism of danger, not based on the qualification of the act, but on the legal consequences, i. e. on the application of release from criminal liability. The study has shown that the application of the institute of insignificance in case law is currently influenced by a stricter criminal policy: criminalization of less serious acts and/or severe sanctions for their commission, as well as the poor quality of the law and an inability to specify the boundaries of criminal behaviour. This determines court decisions where a person is released from criminal liability for the insignificance of the act, taking into account not only the constituent elements of the crime but also the socio-economic changes, living conditions, circumstances of the crime, etc. The indicative legal regulation allows the courts to apply the institute of insignificance flexibly and thus compensate for the “poor quality” of the law. Such an application of the institute of insignificance after the adoption of the Criminal Law in 2000, however, was not predicted, and is not a natural evolution of the original concept of insignificance.