Fikcijos baudžiamajame procese: tarp ontologinės „tikrovės“, teisėkūros ir teisės taikymo

Abstract

This article analyzes the nature and scope of legal fiction in criminal procedure. It reveals that the gap between legal and ontological discourse and the ambivalence of the purpose of criminal procedure create preconditions for theoretical legal fictions. On the one hand, criminal procedure serves the purpose of investigating criminal offenses rapidly and efficiently, and, on the other hand, the aforementioned should be done without prejudice to the rights of the suspects and defendants. Such “competing” goals of the criminal procedure are hardly possible to achieve both at the same time.
Practical (factual) fictions can occur when a special rule and its application distort the meaning of the general rule and, in turn, the meaning of the purpose and goals of criminal procedure. The distortion may also be associated with the selective justice and the funnel effect (in a criminological sense), as well as with the inevitable discretion of law-enforcement officers: if the discretion serves its own pragmatic aims, then the rule of law might become just a tool to justify the pursuit of potentially dishonest purposes. Thus, a certain seemingly progressive legal regulation (e.g., the institutes of the criminal injunction) might create situations when the suspect’s naiveté or excessive confidence can be used to extract confession or other relevant information. Therefore, general principles of law can be “narrowed” to more specific and less visible selective “filters”.
Another kind of factual fictions occurs when a general rule is not fully appropriate for the enforcement of legal liability, and then such general rule needs to be interpreted broadly, according to its spirit, not only its text. Such factual fictions are also associated with legal discretion and can be called not only as fictions, but also as teleological application of law or (from the viewpoint of layperson’s discourse) the white lie.
Other kinds of fictions are legal ones: they occur on account of the gap between social reality and positive law, e.g., the implication of coercive measures is directly associated with the seriousness of crimes, for which the measures can be applied. However, sometimes the way of committing a crime calls for specific coercive measures (methods to investigate crimes) that cannot be applied due to certain legal constructions. For example, telephone fraud (no matter how big is the sum involved) calls for telephone interceptions. The aforementioned procedural measures should depend not only on the seriousness of an offense (which is a theoretical construct, not necessarily having much to do with the nature of the offense), but also on the way of making a criminal act: there are petty crimes that are difficult to investigate and there are serious crimes that are easy to investigate.
To sum up, different kinds of fictions exist in criminal procedure: theoretical ones, related to the purpose and the aims of criminal procedure; practical ones, related to the legal discretion and the application of law; and legal ones, related to legal norms that are hardly compatible with the dynamic social reality.