ОБЈЕКТИВНИ ИДЕНТИТЕТ ПРЕСУДЕ И ОПТУЖБЕ
FACTUAL IDENTITY OF CHARGE AND JUDGMENT

Summary/Abstract: One of the basic principles of modern criminal procedure is that the judgment does not exceed the facts and circumstances described in the charges. In order to adequately prepare for the proceedings, the defendant must be properly informed about factual allegations he or she is accused of. The question that remains unresolved is to what extent is the court limited by the facts and circumstances presented by the prosecutor, and whether it is authorized to depart from them, depending on the result of the trial. For example, if the prosecutor states that the defendant had the intention to sell the drugs, would it be possible for the judge to find that the defendant is guilty not of supplying, but possession of prohibited drugs? This concern in fact represents the focus of this paper. As it presents, in common-law adversarial systems of jury-trial, the problem of identity does not exist, having in mind that the jury is not permitted to give the reasons for their verdict, but only to find the defendant guilty or not guilty in regards of prosecutor’s allegations. However, in the systems of trials without jury, the judge is obliged to give reasons for every charge and to explain the facts and circumstances that constitute the elements of the crime that the accused has committed. Thus, it would be possible to check if the defendant was found guilty based on the factual allegations of the charge, or under the facts determined during proceedings. According to the law, the judgment may relate only to the offense which is the subject of the charges while the court is not bound by the prosecutor’s legal qualification of the offense.

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