Problems of the application of criminal responsibility for the illegal persecution of a person in the context of the legal protection of the victims

Abstract

Although stalking was only criminalized in Lithuania on the 14^th of October 2021 (Article 148-1 in the Criminal Code of the Republic of Lithuania (hereinafter, CC) “The Unlawful Persecution of a Person”), there is a growing debate about the validity and demonstrability of the negative consequences and victim’s expressed will established in this provision, the proportionality of the sanctions, and the systemic incompatibility with other provisions. There are also concerns regarding the incomplete transposition of the Victims’ Rights Directive into national legislation. The purpose of this article’s thesis is to determine whether the application of criminal liability for the unlawful persecution of a person provides adequate legal protection for victims, assessing the compatibility of the national legal framework with the ultima ratio principle and the Victims’ Rights Directive.

The results revealed that stalking is a complex phenomenon, characterized by the performance of both routine and prohibited acts, the totality of which constitutes a pattern of violent behavior, that disrupts victim’s mental health, professional activity, social life, and daily routine. The general standards of protection set out in The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Istanbul Convention, which promote the reduction of gender stereotypes and prohibit discrimination against women, have been fundamental to the development of the legal framework for stalking. Establishing the negative consequences of the unlawful persecution of a person imposes an excessive burden of proof, while the victim’s clearly expressed will may lead to escalation. The criminalization of this offence as a misdemeanor does not correspond to the gravity and intensity of it. The imposition of stricter sanctions in the event of stalking of a close relative or family member is not ensured. The ultima ratio principle has not been infringed by the criminalization of the unlawful persecution of a person. The gravity of this offence is demonstrated by the interference of the constitutionally protected freedom of the individual’s will, disturbance of mental health, performance of intentional acts against victim’s expressed will, unlawfully and systematically. There are no alternative measures in the Lithuanian legal system that can ensure effective restoration of the violated legal good – the application of the systematic intimidation of a person by means of psychological coercion under Article 145(2) of the CC is insufficient, as it criminalizes only acts of specific intent, and the application of Article 2.23 of the Civil Code of the Republic of Lithuania is also excluded, as the imposition of sanctions of a pecuniary nature would not ensure the restoration of justice. The current legal framework is not fully compliant with the Victims’ Rights Directive, since the method of assessing the special protection needs of victims is insufficiently detailed, and does not involve victim in the process of evaluation. There is no separate procedure for the granting of special protection measures for particularly vulnerable persons, including victims of the unlawful persecution of a person.