Šeimos nario samprata baudžiamosiose bylose dėl smurto artimoje aplinkoje: teismų praktikos pagrįstumas
Abstract
This paper discusses the concept of a family member in criminal cases
of violence in a close environment. The main objective of the analysis was to determine
the scope of this concept as applied in national case law, while determining
the qualifying element of a crime against human life and health (Chapters XVII
and XVIII of the Penal Code). The subject-matter of the research was limited to the
most problematic aspects as follows: 1) de facto partnership; 2) spouses; 3) former
close relationship; 4) and some other relationship. Sixty decisions of national courts
were used for the analysis to determine whether consistent case law for interpreting
the concept of a family member ad hoc is adequate for the effective application
of this concept, and whether adjustments pertaining to its legal regulation are also
necessary. The results of the research lead to the conclusion that interpretation of the
concept by making references to Art. 248.2 of the Penal Code (Chapter XXXIV), or
Art. 38 of the Criminal Procedure Code, or definitions provided in the Civil Code or
special Law on Protection Against Violence in a Close Environment is not consistent
with the principle nullum crimen sine lege stricta. Therefore, in order to ensure the
appropriate protection of victims of crime and adequate qualification of crimes, it is
necessary to include the definition of the family member in Chapters XVII and XVIII
of the Penal Code. In the case of actual partnership and spouses living separately, the
Lithuanian courts essentially adequately interpret the concept of the family, applying
it consistently to both de facto and de jure relations. However, according to the provisions
of international law, the jurisprudence of the ECtHR, the doctrine of domestic
violence, the attributes of family relationships should be valued using their broad
concept and should not be confused with the manifestations of lifestyle or specificity
of domestic violence. Based on the nature of marital legal relations, the provisions of
the Penal Code and international normative acts, the doctrine of domestic violence
and the case law of the Constitutional Court and ECtHR, marriage should be seen as
ipso jure substantiating the family relationship. In the cases concerning former close
relationships, the courts follow the precedents interpreting the concept of a family
member, although these criteria are not fully adequate in this case. Given the specifics
of domestic violence and the fact that, even if the actual relationship is broken,
certain legal family relationships still remain, and the concept of the family should
apply to former spouses or partners.
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