The identity of judgment and indictment

• Main Author: Ilić Ivan
• Format: Article
• Language: English
• Published: Faculty of Law, Niš 2015-01-01
• Series: Zbornik Radova Pravnog Fakulteta u Nišu
• Subjects: correlation between the indictment and the judgment; exceeded scope of indictment; right to defence; factual and legal issues
• Online Access: http://scindeks-clanci.ceon.rs/data/pdf/0350-8501/2015/0350-85011569267I.pdf

The subject matter of criminal proceedings (the criminal subject matter) is determined by the indictment raised by the authorized prosecutor. This is a direct consequence of the application of the accusation principle, whose essence is embodied in the old Latin maxim: nemo iudex son actore. The subjective and objective identity of judgment and indictment must be correlated. The subjective identity means that the judgment may refer only to the person who has been identified in the indictment. The objective identity indicates that the factual grounds provided in the indictment must be identical with the factual grounds specified in the criminal court judgment. It implies the substantive element (i.e. identical factual grounds) of the judgment and indictment, whereas the formal element does not have to be present because the court is not bound by the prosecutor's legal qualification. The legislator sets out clear limitations by stipulating that the verdict shall refer only to the person and to the specific criminal offence which is specified in the submitted indictment or court-amended indictment modified in the course of trial proceedings (Article 420, paragraph 1 of the CPC). In compliance with the mutatis mutandis principle, the prosecutor has the authority to modify the indictment in the course of trial if the defendant is established to have committed a different criminal offence than the one which he has been charged with. The question of subjective and objective identity is one of the most complex criminal procedure issues both in legal theory and in judicial practice. According to an earlier theoretical conception, identity exists if the judgment is related to the same past event. The supporters of a narrower (stricto sensu) conception assert that identity exists if the subject matter of a judgment is a different criminal offense in relation to the one the defendant has been charged with; hence, identity does not exist if there is another offense. The recent procedural theory has yielded the factual grounds theory which entails the most rigid interpretation of the judgment and the indictment correlation. In the statement of facts, the prosecutor lays down the factual grounds for the indictment which must remain the same in the judgment. This link between the judgment and the indictment provides for the effective exercise of the defendant's right to defense in criminal proceedings. As a matter of fact, the right to defense is the key to solving the dilemma about exceeding the scope of indictment. The scope of indictment may be exceeded if the court alters the facts contained in the indictment and enters a different set of fact in the judgment, thus endangering the defendant's right to defence. In resolving the dilemma whether the scope of indictment has been exceeded, the governing premise is that the court is bound by the factual grounds specified in the indictment, but it is not bound by anything that falls within the scope of legal qualification. Taking into account these two pivotal points, the author concludes that the examination of the exceeded scope of indictment would largely facilitate the decision on this procedural issue, which is a stumbling block in jurisprudence.