Kankinimas kaip asmens atsakomybę sunkinanti aplinkybė (lR BK 60 straipsnio 1 dalies 4 punktas): Lietuvos teismų praktikos vertinimas
Torture as Personal Aggravating Circumstance (Article 60 Part 1 Point 4 of the Lithuanian Criminal Code): Lithuanian Case-law Analysis

Summary/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 Drakšas 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 degrading treatment, as defined by the Article 3 of European Convention on Human Rights. With reference to case-law search system “infolex“, data shows that, since the new Lithuanian Criminal Code (entry in to force to May 1, 2003) to December 31, 2016 there was a very small number of cases raising the need of a more severe punishment, based on article 60º, part 1 point 4 of the Lithuanian Criminal. Out of this small number, the courts applied this article only in 6 cases. There is no doubt that quite a lot offences in Lithuania are cruel and are held like a torture. Lithuanian case-law analysis showed that the article 60º of the Lithuanian criminal code does not function in the Lithuanian legal system and Lithuanian courts causeless does not apply this law. For this reason, Lithuania does not ensure effective safeguarding from the torture, inhumane or degrading treatment, as defined by the Article 3 of European Convention on Human Rights. The author suggests that the Lithuanian legislator should take into account other examples where tortures are criminalised as a strict liability (Criminal Code of France) and qualifying attribute in extortion (article 181 of Lithuanian Criminal Code), robbery (article 180 of Lithuanian Criminal Code), rape (article 149 and article 150 of Lithuanian Criminal Code) (Criminal Code of France, Spain, Finland, Norway).

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