Teismo įgaliojimai keisti inkriminuojamos veikos kvalifikavimą: Konstitucijos reinterpretavimo prielaidų paieška

ENThe article starts to explore prerequisites for reinterpretation of the Constitution of the Republic of Lithuania on question of powers of court to re-qualify sua sponte act described in an indictment, departing from the Ruling of the Constitutional Court adopted on 1999 February 5. The change of text of the Constitution of the Republic of Lithuania (made in 2003) which expressis verbis stipulates the powers of prosecutors (Paragraph 1 of Article 118) might be significant, but does not create sufficient prerequisites to change the interpretation on the constitutionality of the powers of the court to re-qualify sua sponte incriminated act under more severe criminal law and rule that such powers are compatible with the Constitution. Prosecutor‘s powers and their relationship with the judicial powers must be interpreted in light of the prosecutor‘s legal status, place in the system of state’s institutions. Systematic comparative study shows that the prohibition for the court to re-qualify sua sponte act described in an indictment under more severe criminal law typical Anglo-American legal tradition, can be considered in this tradition as well as the inherent part of the prosecutor‘s discretion. Such discretion is widely applicable in the United States, whose system is also characterized by the fact that senior prosecutors are politically responsible to electorate or political authority, and the lower the prosecutors similarly depend on the former. Democratic political control ensures not only that the criminal law will be implemented in a flexible way, paying regard to the democratically expressed will, but also that Prosecutor‘s Office (prosecutors) perform their duties properly and not abuse their powers. This is a significant factor in justifying the strict separation of powers principle in the U.S. legal system.Examples of legal systems of continental European countries confirm that the greater the independence of prosecutors from political power, the less justified is their discretion and at the same time fewer prerequisites to justify the prohibition of the court to control boundaries of trial, to limit its initiative to change the classification of the incriminated act, as well to more stringent one. Significant difference to be considered is whether the Prosecutor General can be dismissed by political authority or electorate before the end of the term of office on ground of no confidence, since on the legal level, it shows the very strong political control of the prosecutor and his little independence. Therefore, investigation of prerequisites to reinterpret the provisions of the Constitution on the powers of the court to re-qualify sua sponte the incriminated act under more severe criminal law attention is to be drawn to the status of the prosecutor‘s office (prosecutors) established in the Constitution. The aforementioned conclusions of the article are drawn from comparative systematic analysis of Lithuanian and foreign constitutional and criminal procedure legislation, juriprudence of the Constitutional Court and legal doctrine. [From the publication]