| Abstract [eng] |
THE CHANGE OF THE CHARGE IN THE TRIAL Summary The relations of criminal procedure with the law are regulated in such way as legal premises were made to quickly disclose and thoroughly investigate the criminal acts, rightly punish the offenders who committed the criminal acts, also to ensure that no one guiltless of a crime was convicted. It is necessary to seek that the protection of the rights of persons who suffered from the criminal acts was ensured, also, that the rights of persons who committed criminal deeds were not unreasonably restricted. One of the measures for the attainment of this goal is the restriction on the hearing of a criminal case in the court and determination of the indictment changing procedure. The establishment of limits on the hearing of a criminal case in the court is grounded by the idea that the only one and main function of the court in the criminal process is justice administration. According to the Lithuanian law doctrine, the court may not exceed the limits of indictment established in the bill of indictment, may not formulate the indictment by itself, may not independently decide as to granting the defendant status to the person. Irrespective the existence of different opinions regarding competence of the court to initiate the change of indictment into the harder one, I would think that such procedure complies with the principle of function segregation, ensures the protection of defendant’s rights, and at the same time such procedure does not infringe upon the aggrieved party’ rights, since he, like the prosecutor, is granted the right to request that the indictment was changed into the harder one or the one essentially different to the actual circumstances. The defectiveness of legal regulation is seen in the fact that the criminal procedure code does not envisage a mechanism for the solution of conflict between the prosecutor and the aggrieved party, when the latter does not agree with the prosecutor’s decision to change the indictment into the milder one. I would think that a procedure should be established according to which an essential condition for the prosecutor’s request to change the indictment into the milder one was the consent of aggrieved party with such change. The essence of existence of the indictment change institute in the court primarily consists in the fact that the defendant’s right to know what he is charged with and the right to efficient defence should be ensured. Both, the European Human Rights Court practice and the Lithuanian legal regulation recognise the fact that certain circumstances may be ascertained during legal proceedings, which would cause a necessity to change the indictment. It is not banned to change the indictment into the harder one, however, some imperative conditions have to be met, namely: the defendant has to be informed in detail of the content and grounds of the new indictment, he has to be provided with an opportunity to get prepared for defence with respect to the changed indictment, the indictment must not be changed freely, but based on the actual and legal grounds of the initial indictment, there should be an initiative of respective proceedings participants (not of the court) to change the indictment. The only exception when no such requirements may be abided by is when the indictment is changed into the milder one and not different to the previous one in its actual circumstances. However, an increasing weight of the human right protection priority also determines another level of protection of the defendant’s rights. The European Human Rights Court practice is tended towards the direction that any change of indictment, without informing thereof the defendant (except for clearly technical mistakes), would mean a violation of the defendant’s rights. Therefore, regulation of the indictment change procedure might be changed respectively seeking to make sure that no infringements of the Convention were made. |
