НЕКЕ НЕДОУМИЦЕ У ВЕЗИ СА ПОТРЕБОМ КОНКРЕТИЗАЦИЈЕ СУБЈЕКТИВНЕ СТРАНЕ КРИВИЧНОГ ДЈЕЛА У ДИСПОЗИТИВУ ОПТУЖНИЦЕ
SOME DOUBTS REGARDING THE NEED TO SPECIFY THE SUBJECTIVE SIDE OF A CRIMINAL OFFENCE IN THE OPERATIVE PART OF THE INDICTMENT

Summary/Abstract: In order to impose an adequate criminal sanction on the perpetrator of a criminal offence, it is necessary to establish, beyond reasonable doubt, i.e. with complete certainty, that a criminal offence has been committed, not only in the objective sense (by undertaking the criminal action described in the operative part of the indictment) but also in a subjective sense (the type and the degree of guilt described in the operative part of the indictment) with the assumption that the factual description of a criminal offence in the operative part of the indictment (both in the objective and subjective sense) contains all the essential elements of the nature of the relevant criminal offence as well as other elements which influence the existence of the relevant criminal offence(e.g. the objective condition of incrimination) or the application of criminal substantive and procedural legislation in a concrete matter. Only in such a factually and legally established situation can we approach the realization of the principle of legality and the principle of guilt in a specific criminal case. Otherwise, the (factual) description of the offense in the operative part of the indictment does not contain all the legally prescribed elements of a criminal offense, whether it is a lack of general or special elements of the nature of the relevant criminal offense, so the offense thus described in the operative part of the indictment is not a criminal offense, and leads to an acquittal. However, what has led to doubts in judicial practice, and therefore to different actions of prosecutors’ offices and courts in specific situations, is the question whether the factual description of a criminal offense in the operative part of the indictment should contain a clear description of the perpetrator’s psychological attitude towards it (the subjective side of a criminal offense) or not? The answer to this question is not simple, as it is not possible to derive a general rule which, atfirst, would not have several possible exceptions.

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