The identity of the judgment and charge in criminal procedure: Jurisprudence of domestic courts

Abstract

Achieving the identity of the judgment and the charge in criminal proceedings, represents the assumption of the realization of the accusatory principle, as well as the realization of fundamental rights of the accused, such as the right to defense, the right to a fair trial. In order to be able to say that in a specific case there is congruence between the judgment and the charge, it is necessary that identity has been achieved both in the subjective and in the objective sense. The above compliances are regulated by the Code of Criminal Procedure of the Republic of Serbia, Art. 420. The legislator points to the importance of achieving the subjective and objective identity of the judgment and charge by prescribing the violation of the said identity as an absolutely essential violation of the provisions of the criminal procedure. In this way, the legislator provided additional protection, first of all, to the individual interest, that is, the position of the defendant in criminal proceedings. As it is a very important questio facti criminal procedural issue, which is regulated by the general clause, it is extremely important to establish in which cases the identity of the judgment and charge is violated. For the purpose of establishing such cases, as well as their grouping according to relevant criteria, research was carried out, which included the analysis of a significant number of decisions of domestic courts-qualitative research approach. Also, in order to determine in which cases the subjects of legal remedies indicated in their appeals the existence of a violation of the identity of the judgment and charge, empirical research was carried out of a certain number of decisions of the High Court in Belgrade and the Court of Appeal in Belgrade-quantitative research approach.