Modification of criminal charges: European line between a Kafkaesque process and a fair trial

Abstract

The article examines the impact of modifications of criminal charges on the accused’s right to a fair trial. It highlights differences across European legal systems regarding the extent to which such modifications may be introduced during the trial, demonstrating how various regulatory models influence the accused and the dynamics between the court and prosecution. The main part of the article investigates the limitations on modifying the charges as defined by EU law and the jurisprudence of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR). While both frameworks emphasise safeguarding of the defence following a modification of the charges, the findings reveal that the ECtHR employs a case-by-case approach, assessing whether the modification affected the accused person’s right to prepare a defence. In contrast, the ECJ interpreting Directive 2012/13 imposed a general obligation for authorities to notify the accused about the modification of the charges, particularly when the legal classification of the offence is modified. Finally, the article suggests that the question of judicial impartiality, especially in cases where the court alters the factual basis of the charges, may arise in the future case law of both European courts.

Introduction

Consider the following hypothetical scenario: In a criminal case, a prosecutor files an indictment accusing the accused of visiting his neighbour and stabbing him, thereby committing the criminal offence of manslaughter (defined in the law as an intentional killing of another person). However, during the trial, a medical expert testifies that the victim has suffered multiple stab wounds and that his suffering was worse than that of an average victim. Since the prosecutor did not include these circumstances in the indictment, there is a discrepancy between the indictment and the evidence presented during the main hearing. Moreover, these facts could lead to a more serious legal classification of the criminal offence of murder (a qualified form of manslaughter). If a person is killed in a cruel manner, the criminal law of this country defines a culpable homicide as murder, which carries a harsher punishment than the baseline offence of manslaughter.

In such a case, should the prosecutor or even the court itself be allowed to modify the description of the facts and their legal classification? The state authorities, particularly the prosecution, may be interested in adapting the charges to align with the findings about the course of relevant events constituting the criminal act in question, as they appear from the evidence presented during the main hearing, and obtaining an accurate conviction for the offence. On the other hand, modification of the charges may affect the accused’s ability to prepare a defence. Without information on the charges and their potential changes, the accused cannot effectively confront the prosecution’s version of events. This situation is depicted vividly by Franz Kafka in his work The Trial, where the protagonist is left in the dark about the charges and their possible changes during the entire trial and has, therefore, no choice but ‘to pass his whole life in review and describe it right down to the very last detail’ ¹ to prepare a statement of defence, which, needless to say, is impossible to finish. Moreover, as we will show in this article, modification of the charges can also disrupt the separation of the procedural functions of the prosecutor and the court and, consequently, lead to a violation of the impartiality of the court.

The implications of the modifications of the criminal charges for the accused’s rights to prepare a defence and to have an impartial court decide on their charges have led to an increasing number of decisions from the European Court of Human Rights (ECtHR) and, more recently, the European Court of Justice (ECJ). In addition, the risk arising from modifications of the charges for the right to information on the charges was explicitly addressed in the EU legislation in 2012. However, while the issue has gained importance before European courts, the body of literature analysing the decisions of ECtHR and ECJ and comparing different national rules on modifications of the charges remains scarce.

This article aims to contribute to the literature by addressing, first, the possible models of regulation upon which different national systems are based (Sections ‘Rules governing modification of the charged facts and their legal classification in different procedural systems’ and ‘The potential effects of (rules governing) modification of the charges on the defence and the relationship between the court and prosecution’) and, second, the approach towards modifications of the charges adopted by the ECtHR and ECJ (Section ‘Modifying the charges and the European safeguards of a fair trial’). The classification of existing national models, along with their strengths and weaknesses, is intended to contextualise the ECtHR’s and ECJ’s approach to the modification of criminal charges within the broader comparative debate in the existing literature. The core of this article is the analysis of the ECtHR’s and ECJ’s approach to the modification of the charges. A clear understanding of the standards developed through the case law of both European courts is crucial for ensuring fair trials in national proceedings and enhancing mutual trust among EU member states.

Rules governing modification of the charged facts and their legal classification in different procedural systems

In this article, we will use the term ‘modification of the charges’ to encompass both (i) modifications of the acts the accused allegedly committed and (ii) changes of the legal classification of these acts that occur after the beginning of the trial, regardless of the author of the modification and its scope. National systems sometimes use different specific terminologies to describe different types of modifications of the charges, depending on, for example, the authority that modifies the charge. As a result, the term we adopt may not correspond with the terminology of each national system. ²

According to the literature, the common denominator of almost all modern criminal justice systems is that the prosecutor’s charge fixes the factual background of the case submitted to the court’s adjudication. At the very least, the prosecutor is required to determine the facts that constitute the charged criminal offence ³ and form the essence of the acts the accused is alleged to have committed. ⁴ However, individual countries have adopted different rules that regulate whether the prosecutor’s initial description of the facts may be modified to correspond to the evidence presented at trial. ⁵ The studies have analysed and compared the manoeuvring room for deviating from the prosecutor’s initial description or statement of facts during the trial and in the judgement in Italy, Belgium, France, Germany, the Netherlands, ⁶ France and Sweden. ⁷ The authors observed that the studied countries differ in terms of which authority has the competence to modify the description of the facts (the prosecutor or the court) and to what extent (eg by crossing out words, rephrasing the description or adding words). ⁸

While the prosecutor’s initial charge generally fixes at least the essential factual elements submitted for adjudication, this cannot be claimed for the legal component of the charge. One of the key differences between legal systems lies in the answer to the question of whether the prosecutor’s charge also fixes the legal classification of the charged facts. In some jurisdictions, the court is bound to the set of facts the prosecutor included in the charges but not to the prosecutor’s legal evaluation of these facts. In these jurisdictions, the court has the authority to reclassify the charged facts, if it considers that a different legal classification better fits the charged facts, regardless of whether it is to the defendant’s disadvantage. ⁹ The described broad power of the court reflects the Latin legal maxim iura novit curia, which determines that the court is presumed to have the knowledge of the relevant law and is required to apply it ex officio. ¹⁰ This is an approach that is common in modern inquisitorial systems, ¹¹ where, historically, the judicial power to define the legal parameters of the dispute, reaching outside the legal parameters invoked by the parties, increased and evolved into a duty of the court to identify all legal authorities relevant to reach a decision. ¹² Jurisdictions that grant the court the authority to change the prosecutor’s legal classification include Austria, ¹³ Bulgaria, ¹⁴ Germany, ¹⁵ Italy, ¹⁶ Sweden ¹⁷ and Slovenia. ¹⁸

In other jurisdictions, the court is bound by the prosecutor’s legal classification of the facts. This approach is prevalent in common law jurisdictions shaped by jury trials. When the court is deciding on whether the accused is guilty of the offence charged, it may, in principle, only find the accused guilty of the offence charged, that is, of the acts the accused is alleged to have committed as well as their legal classification. Only in exceptional cases is the court allowed to modify the prosecutor’s charge, in particular by convicting the accused of a lesser included offence. ¹⁹ English law, for instance, provides for such an exception. ²⁰ However, in general, common law jurisdictions tend to be reluctant to give the courts the power to find the accused guilty of an offence that nominally differs from the offence alleged in the charge, either with a legal classification with substantially different elements than the original offence or a more serious legal classification than that defined in the prosecutor’s charge. ²¹

Our review of literature shows not only that the approaches of national systems are highly nuanced but also that the comparison of the systems is difficult due to different practices of drafting the charges in the charging document (ie the indictment), with some systems requiring a very detailed description of the charged facts and others allowing less specifical phrasing. ²² The more detailed the description of the charged facts, the more likely it is that the evidence will show the event under consideration in a different light. The comparative analysis is further complicated by the fact that national rules for modifications of the charges are often developed in the prosecutorial and judicial practice, sometimes without an explicit basis in the legislation or even in contradiction with it. ²³ Lastly, comparing national positions towards modification of the charges can be challenging due to alternative measures in some jurisdictions that lead to similar effects as possibilities for modifying the charges during the trial. For instance, alternative charges that are allowed in some jurisdictions can have similar effects to modification of the charges. By charging not only the main charge but also an alternative charge, the prosecutor mitigates the risk of acquittal if the court finds the first description of the facts and its legal classification inadequate. ²⁴ In such a case, the court may choose an alternative charge, achieving a similar outcome to a modification of the charge during the trial. Some authors indirectly recognised the similarities between these two legal pathways. For example, in the context of criminal proceedings before the International Criminal Court, the authors observed that the power granted to the court to reclassify the facts was adopted to avoid the risk that the prosecutor would compensate for the possibility of the acquittal if the court does not accept the proposed legal classification with an excess of alternative charges. ²⁵ Such reasoning clearly indicates the similar outcomes of both legal mechanisms. ²⁶

The potential effects of (rules governing) modification of the charges on the defence and the relationship between the court and prosecution

While the literature delving into the consequences of the rules that regulate the possibilities for modification of the charges during the trial remains limited, it generally indicates that the more the charge may change during the trial, the less certain the accused can be in preparation for the defence. ²⁷ Additionally, the broader the room for correcting the mistakes in the charge, the lesser the responsibility of the prosecutor for correctly drafting the charge in the charging document. ²⁸ The advantages and disadvantages of various alternative regulations have been discussed mainly, but not exclusively, within the context of the International Criminal Court proceedings. ²⁹ Without examining the differences and similarities between the specific procedures discussed by the authors – since the aim of this article is not to provide an in-depth comparative analysis, but rather to classify them in order to contextualise the ECtHR’s and ECJ’s perspective within the broader comparative debate – we will focus on the legal issues related to the modification of the charges during the trial that they address. Specifically, we will examine their arguments as to whether and to what extent the state should be allowed to modify the criminal charges during the trial without compromising the rights of the defence or the impartiality of the court. The authors highlight the advantages and disadvantages of different approaches, making arguments relating to a particular criminal procedure relevant for evaluating any legal system or possible model of regulation.

As previously noted, in modern systems, the prosecutor’s charge fixes the factual basis of the court’s decision (though, as we pointed out, the jurisdictions differ in whether they allow some room for deviation from the description of the facts). The key difference among these systems lies in whether the legal classification from the charge binds the court. ³⁰ Consequently, much of the literature focuses on the implications of rules governing the court’s power to reclassify the criminal acts the accused is alleged to have committed. ³¹ As we will see, the issue of modification of the legal classification is also at the forefront of the ECtHR’s and ECJ’s jurisprudence on modifications of the charges.

The first criticism of the rule allowing the court to reclassify the offence centres on the position of the defence. It argues that legal classification connects the charged facts (gives them meaning) and can affect how the accused chooses to defend against the charges. ³² By giving the court the authority to reclassify the facts from the charge, the system puts a burden on the accused, who has to defend not only against the offence with the legal classification the prosecutor determined in the charges but also against all similar legal classifications that could correspond to the charged facts. ³³ Consequently, the accused must address all facts mentioned in the charges, regardless of their relevance in light of the legal classification the prosecutor chose. If the court modifies their legal classification in the judgement, these facts could become legally relevant, and the accused who did not address them beforehand may miss the opportunity to discuss them at all. ³⁴ Moreover, in some cases, the possibility of the charges being modified may force the accused to develop two or more mutually exclusive or counterfactual lines of defence to counter the charge. ³⁵

On the other hand, other authors, while sharing the concern that reclassifying the offence could complicate the organisation of the defence, suggest that this potential risk may be mitigated with rules requiring the court to inform the accused of the possibility of applying a legal classification of the acts which differs from that initially proposed by the prosecutor when the accused still has an opportunity to respond. ³⁶ Such obligation is provided for, for example, in German and Austrian criminal procedure legislation ³⁷ and, as we will describe below, also in EU law and ECtHR case law.

The second common criticism of the rule allowing the court to reclassify the offence is based on the relationship between the prosecutor and the court. It emphasises the effect of this rule on the prosecutorial practices of formulating the charges. The authors argue that such a rule does not encourage prosecutors to be thorough in forming the charges because they are aware that the court will correct possible errors they made when proposing legal classification in the charges. ³⁸ Moreover, the mentioned power of the court may even encourage prosecutors to define the facts as broadly and generally as possible to avoid the risk of the court choosing a different legal classification, which would not correspond to the description of the facts and would lead to acquittal. ³⁹ This, in turn, could lead to an even more uncertain position of the accused because it further increases possibilities for modifications of the charges.

However, another perspective observes that even jurisdictions that bind the court to the prosecutor’s legal classifications sometimes avoid acquittals that would stem from the prosecutor choosing an incorrect legal classification by allowing the prosecutor to form alternative charges from the same set of facts. ⁴⁰ Some even argue that a rule that binds the court to the prosecutor’s legal classification forces the prosecutors to compensate for the possibility of acquittal with (an overload of) alternative charges. These charges can become so numerous and complex that they overburden the courts and strain the judicial economy. ⁴¹

Finally, some authors view the scope for the modification of the charges during trial in a broader context by correlating it to the scope of the prohibition of double jeopardy (ne bis in idem prohibition). These authors highlight that the issue of which offence the accused can be convicted of is closely related to the scope of the prohibition of repeated prosecution for the same offence after the decision becomes final. ⁴² If the court has the authority to convict the accused of any criminal offence that corresponds to the facts described in the charges, the ideal approach to ne bis in idem bars the subsequent prosecution of the same accused for the same set of facts, regardless of whether they could be characterised with nominally distinct offence. The explanation for this is that during the trial, the accused was in jeopardy of being convicted of any nominal offence that is based on the charged facts. Therefore, it makes sense to prohibit repeated trials for the same set of facts, irrespective of their legal classification. ⁴³ Conversely, the approach towards the ne bis in idem prohibition in a model that binds the court to the prosecutor’s legal classification of the facts is narrower. Since the accused was not in jeopardy of being convicted for other nominally distinct offences, and the court lacked the authority to modify the prosecutor’s legal classification, such a model tends to bar a successive prosecution based on the same facts with the charge of the same nominal offence. ⁴⁴

If we consider this broader framework in which the scope for modification of the legal classification during trial is linked to the scope of the prohibition of double jeopardy once the proceedings are concluded, we can observe that in an ideal model where the prosecutor’s legal classification does not bind the court, the defendant’s position is more uncertain during the trial, but they have broader protection under the prohibition of double jeopardy once the trial is completed. Conversely, in the ideal model where the court lacks the authority to modify the prosecutor’s legal classification, the defence has a stronger position during the trial but a narrower double jeopardy protection, which can ultimately result in repeated prosecutions for the same factual basis. ⁴⁵

The interpretation of the ne bis in idem prohibition has been repeatedly addressed by the ECtHR and ECJ in an extensive body of case law, which reflects a certain diversity of interpretative approaches. These developments and remaining interpretative uncertainties have been extensively debated in the literature ⁴⁶ and will not be analysed in depth here due to their complexity. However, we will briefly revisit this issue in the section exploring the scope for modification of the charges before both European courts. In the discussion, we will connect the main question of this article – the scope for modification of the charges during trial – with the question of the scope of the prohibition of double jeopardy. By connecting these two questions, we can better understand the rules governing the scope of the trial, emphasising their impact on the (un)certainty of the defence’s position both in the first trial and after the decision becomes final.

Modifying the charges and the European safeguards of a fair trial

Based on the above discussion of how the rules governing the possible modification of the charge during trial, particularly those allowing the reclassification of the charged acts, affect the position of the defence and the relationship between the court and the prosecutor, we can now examine how to ensure that national rules and practices for modifying the charges meet European fair trial standards.

In the following section of the article, we will examine the requirements of EU law and case law of the ECtHR that apply when the charges are modified, drawing attention to the differences in their approaches. We will demonstrate that the ECtHR adopted a case-by-case approach that assesses whether the modification affected the accused person’s right to prepare a defence. Meanwhile, ECJ, interpreting the Directive 2012/13, seems to have established a more general obligation of the authorities to provide information about the modification of the charges.

Functional case-by-case approach towards the information about modification of the charges in ECtHR case law

While the European Convention on Human Rights (ECHR) does not explicitly address the modifications of the charges, the ECtHR has repeatedly stressed that these can fall under Article 6, which guarantees a fair trial. Its case-by-case assessment takes as a starting point that the ECHR requires that the accused is informed in detail of the nature and cause of the accusation (as guaranteed in Article 6(3)a ECHR) and that they are afforded adequate time and facilities for the preparation of the defence (as guaranteed in Article 6(3)b ECHR), alongside the general requirement of a fair trial (Article 6(1) ECHR). ⁴⁷ The ECHR does not specify the form in which the information about the charges must be communicated to the accused and the manner in which they should be given the opportunity to respond to it, leaving these questions to be determined by national rules. ⁴⁸ ECtHR notes that the state can safeguard the right to defence by adjourning the hearing for further arguments or allowing the defence to make written submissions on the modified charge. ⁴⁹

Although ECHR grants the accused a standalone right to be notified about the charges, the ECtHR will not automatically find this right violated if the accused did not receive sufficient information about the modified charges during trial. Instead, the ECtHR will only deem this right violated if the insufficient information about the modified charges could have impaired the accused’s ability to prepare their defence. The authors describe the approach of the ECtHR as functional because it focuses on the role of an otherwise standalone right to information for the preparation of defence. ⁵⁰ In its assessment, the ECtHR, for example, examines whether it is plausible to argue that the defence against a modified charge the accused was not made aware of would have been different from the defence to the initial charge. ⁵¹ Additionally, using such an approach that considers the potential effects of the modification on the defence, the ECtHR has consistently held that the defects in informing the accused about the charge that occurred in the proceedings before lower courts can be remedied before the appellate courts if the accused is entitled to contest the conviction regarding all relevant legal and factual aspects. ⁵²

One of the earlier cases where the ECtHR found a violation of fair trial rights due to the modification of the charges was Mattoccia v. Italy, where the ECtHR established that information about the time and place of the acts the applicant was alleged to have committed in the indictment was vague and then repeatedly contradicted and amended during the trial before national courts, and the accused was not given an opportunity to respond and to present evidence in his defence against the modified charge. As a result, the ECtHR ruled that the defence faced exceptional difficulties, and the accused had not received a fair trial. ⁵³

In the case of legal reclassification, the ECtHR has found a violation of the right to a fair trial in cases where the accused has been convicted of an offence with different constituent elements from those they were charged with without being informed of the possibility of the reclassification and having the opportunity to defend themselves against it before the judgement was delivered. ⁵⁴

On the other hand, the ECtHR holds that informing the accused about the reclassification before delivery of the judgement is not necessary in cases where the constituent elements of the original offence embrace all the constituent elements of the reclassified offence, that is, where the new element is ‘an element intrinsic to the initial charge’. ⁵⁵ In these cases, the ECtHR considers that the accused must have been aware of the possibility that they might be convicted of a reclassified charge. ⁵⁶ Simply put, the accused is expected to have anticipated modifications of the initial legal classification that constitute an element intrinsic to the initial charge. ⁵⁷ Since the accused is considered to have been aware of the possibility of such a legal reclassification, the accused already had the opportunity to defend themselves against the charges throughout the criminal proceedings and informing the accused of the reclassified charges only upon delivery of a judgement does not lead to a violation of a fair trial. ⁵⁸

As part of its assessment whether the modified charge constitutes an element intrinsic to the initial charge, the ECtHR compares elements of the original and modified charge. For example, in Salvador Torres v. Spain, the ECtHR considered that the new charge of simple embezzlement, with the aggravating circumstance that the accused had taken advantage of the public nature of his position, constituted an element to the original accusation of embezzlement of public funds. In the ECtHR’s opinion, the accused must have been aware of the public nature of his position since it was already a part of the initial accusation, albeit not an aggravating circumstance, but a constituent element of the offence. ⁵⁹ This case has drawn criticism that appears valid that the legal situation in this case was ‘far from clear’ during the trial. ⁶⁰

Similarly, the ECtHR found that the single act of forgery for which the accused was convicted was an element intrinsic to the initial charge brought against her of continuous acts of forgery in Marlena-Carmen Popa v. Romania. In that case, the accused was informed about every act of forgery she had been charged with and had the opportunity to submit comments and evidence in her defence throughout the proceedings, including the single offence of forgery for which she was ultimately convicted. ⁶¹

In Leka v. Albania, the accused was charged with and convicted of the murder of two persons. In the appeal proceedings, the court reclassified the charges as attempted robbery causing death and attempted murder. While ECtHR noted that the constituent elements of the criminal offence of murder are not necessarily the same as those of the criminal offence of robbery resulting in the death of a person, it held that in this case, the facts based on which the appellate court later modified the charges – the intent of the accused to rob the victim of money – were included in the prosecutor’s charges and the first instance court’s conviction and the appellate court did not introduce new factual elements. Additionally, the ECtHR observed that the accused, in his defence, addressed the circumstances relevant to the criminal offence of robbery. For instance, during the investigation, he stated – though he later changed his testimony – that he had taken a gun with him with the intention to frighten the victim and take his money. In the end, the ECtHR concluded that the accused was able, throughout criminal proceedings, to address all the constituent elements of the criminal offence of robbery resulting in the death of a person. Therefore, the right to be informed about the charges and to prepare the defence were not violated. ⁶²

Conversely, the ECtHR dismissed the argument that a new charge constituted an element intrinsic to the initial accusation in the case Pélissier and Sassi v. France, where the violation resulted from the failure to notify the accused about the reclassification of the criminal bankruptcy to that of aiding and abetting criminal bankruptcy. In the ECtHR’s view, aiding and abetting requires additional factual elements and the defence to the modified charge could have been different from the defence to the initial charge. As a result, the modification of the charges did not constitute an element intrinsic to the initial accusation known to the applicants from the beginning of the process. Considering this, the ECtHR concluded that the accused’s right to a fair trial was infringed. ⁶³

The ECtHR found a similar violation in Juha Nuutinen v. Finland. The accused had been charged with a series of tax offences as a principal offender that he allegedly committed by submitting VAT refund applications, relying on fabricated invoices that were drawn up by his co-defendant. Court of Appeal changed the description of the facts in that it also convicted him of preparing the documents needed for the commission of the offences. Additionally, it also reclassified the legal classification of these acts to aiding and abetting those tax offences. The ECtHR found that the additional acts added to the description did not constitute an element intrinsic to the initial accusation, and the lack of notification led to a violation of a fair trial. ⁶⁴

The ECtHR’s assessment, which focuses on the role the information about the modified charges could have had in the preparation of the defence, is to some extent understandable. It largely aligns with its existing approach to interpreting fair trial requirements that does not examine whether specific guarantee within the fair trial provision has been respected but takes into account all the fair trial guarantees together to assess whether the trial as a whole has been fair. ⁶⁵ Such an approach enables nuanced assessment: in cases where the lack of information about the charges would not affect the defence strategy, there is no violation of fair trial rights and vice versa. The cases concerning modification of the charges that are brought before the ECtHR are diverse; in some, the description of the facts was changed; in others, the legal classification of these facts; and in yet others, both the facts and their legal classification from the charges were modified during the trial. Such an approach allows the ECtHR to assess the modifications of the charges based on their extent and importance. If, for instance, the accused was not notified in advance that a court only minimally changed a description of the facts in its judgement without altering the relevant facts of the case, this flexible approach would allow the ECtHR to find there has been no violation of a fair trial.

However, such an approach also has some disadvantages. First of all, it is complicated to use because it requires the ECtHR to assess the impact of the modification on the preparation of the defence. As it has been pointed out in the literature, the ECtHR is not equipped to put itself in a position of defence and compare different defence strategies in national trials. ⁶⁶ Second, this approach does not lead to the development of jurisprudence in a clear way, leaving the question of when the modification of the charges will have prejudiced the accused in a cloud of ambiguity.

The third disadvantage of the case-by-case approach taken by the ECtHR, in our view, stems from the situation when the court modifies the legal classification of the charged facts in its judgement. The ECtHR has indirectly granted member states a margin of appreciation in deciding whether to incorporate the iura novit curia principle. ⁶⁷ Permitting changes to legal classification during the trial aligns with the broader interpretation of ne bis in idem principle adopted by ECtHR in Zolotukhin v. Russia ⁶⁸ (after a period of divergent approaches), which focuses on idem factum – the person cannot be called to answer again for the same facts that are inextricably linked in time and space. ⁶⁹ If the ECtHR does not allow member states to put a citizen on a criminal trial for a second time for the same set of facts, regardless of whether it is characterised with a different legal classification, it makes sense that it allows states to have the authority to convict the accused of any criminal offence that corresponds to the facts described in the charges in the first trial. In this way, the scope of the prohibition of subsequent trial mirrors the scope of the previous court to adjudicate. ⁷⁰ In this case, during the first trial, the iura novit curia principle (which member states may choose to incorporate but are not obliged to) puts the accused at risk of being convicted for all nominally distinctive criminal offences that could potentially correspond to the factual description of the criminal offence. However, after the completion of the first proceedings, they are protected more widely under the ECtHR’s interpretation of ne bis in idem prohibition – from being prosecuted for the same set of facts, regardless of its legal classification.

However, in allowing the member states to incorporate iura novit curia principle, the ECtHR did not lay down a general rule according to which an accused should always be notified of such modification in advance. According to its case law, the accused is sometimes expected to reasonably foresee that their acts could be considered under a different legal classification. The understanding to what extent is the accused expected to foresee such changes was especially broad in the cases of Salvador Torres v. Spain ⁷¹ and Leka v. Albania. ⁷²

While the iura novit curia principle gives the state the permission to correct the wrong legal classification that was chosen by either the prosecutor or lower courts, regardless of whether the authorities chose such qualification with due care, the ECtHR’s approach requires due care from the accused who must at least in some cases foresee (or even guess?) that the legal classification could be modified if they want to discuss it during the trial. By requiring the defence to foresee certain modifications of the legal classification, a part of the state’s burden to define the charges against the accused is put on the defence. ⁷³ Indeed, this burden may seem less problematic when the court only reduces the severity of the legal classification without connecting its elements in a different narrative, such as, for example, by changing the legal classification of the offence from continuous acts to a single act. On the other hand, shifting this burden to the defence seems particularly problematic when the reclassification goes beyond such a change and connects the elements from the initial legal classification in a different way.

Towards a more general obligation to inform about the charges and give the opportunity to discuss them under the EU law

Within the EU legal framework, the right to a defence is enshrined in Article 48 of the EU Charter of Fundamental Rights, while the right to information in criminal proceedings is set out in the Directive 2012/13 of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (hereafter: Directive 2012/13). ⁷⁴ Among the ECHR, EU Charter of Fundamental Rights and Directive 2012/12/EU, only the Directive 2012/13 explicitly addresses the modification of the charges. According to Article 6 of the Directive 2012/13, member states must ensure that accused persons are informed of any changes to the details of the accusation, where this is necessary to safeguard the fairness of the proceedings. The obligation to provide information to the accused applies to both changes in the facts and to changes in the legal classification of the alleged criminal act. The preamble of the Directive 2012/13 also states that the rights guaranteed in it must be interpreted in accordance with the case law of ECtHR.

From the requirement that accused persons must be informed about any changes in the legal classification, it follows implicitly that the Directive 2012/13 does not prohibit changes to legal classification during the trial, thus allowing member states to convict a person for an offence with a different legal classification than the one they were initially charged with. This is in line with the broader interpretation of the ne bis in idem principle adopted by the ECJ, which defined idem as the same set of factual circumstances, regardless of their legal classification. ⁷⁵ As previously mentioned, if a state is prohibited from retrying a person for the same set of facts, regardless of whether it is characterised with a different legal classification, it makes sense that the state is allowed to reclassify the charged facts during the first criminal trial.

In contrast to the ECtHR, which has scrutinised the fair trial aspects arising from modification of the charges for decades, the ECJ has only recently begun addressing this issue in its preliminary rulings on the interpretation of the above-mentioned Directive 2013/13/EU on the right to information about the accusation and the compatibility of the national provisions with it.

Given that the Directive 2012/13 provides express rules for the possibility that information about the charges may change during the proceedings, it is not surprising that the ECJ has held that the information about the charges may be subject to modification during the trial. ⁷⁶

However, the basic premise of the case law of the ECJ is that in situations when the charges are modified during the trial, the accused must be notified of these modifications at a point in time when they still have the opportunity to discuss them before the court. ⁷⁷ This means that modifications of the charges, in particular regarding the legal classification of the charged facts, must be disclosed to the accused before the court’s deliberation. ⁷⁸

In respective preliminary rulings, the ECJ pays special attention to the court’s power to modify the legal classification of the charged facts. Recently, the question has arisen as to whether the rule requiring the accused person to be notified about the legal reclassification before the deliberation stage should have an exception in cases where the new legal classification is based on the same constituent elements as the original legal classification, as provided in the case law of ECtHR.

In its decision in the BK case, the ECJ seems to have answered this question in the negative, pointing out that even if the new legal classification does not comprise any new element in relation to the original legal classification, the reclassification of the offence by the court could still have a non-negligible effect on the organisation of the defence. The case before the referring court concerned criminal proceedings against BK, who was charged with corruption, but contested during the trial that the acts he was alleged to have committed should be classified as fraud. The referring court had the authority to reclassify the charged acts of the accused but, according to the established practice of the case law, was not required to inform the accused about the new legal classification beforehand. In those circumstances, the criminal court referred the question to the ECJ whether such an established practice contradicts the requirement from the Directive 2012/13 that requires the authorities to inform the accused about the modifications of the charges. ⁷⁹

In her opinion, the Advocate General provided an in-depth analysis of the case law of the ECtHR on this issue and proposed to the ECJ to adopt a stance that informing the accused that the offence could be reclassified in due time is always necessary to safeguard the fairness of the proceedings – whether the constituent elements of the original and reclassified offence seem to be different or not. According to the Advocate General, the advantage of this approach is that it removes subjective assessments by national courts that focus on possible defence strategies. Instead, it establishes a clear and simple rule that an accused must be informed about the possible reclassification of the offence and, thereby, enhances mutual trust between member states. ⁸⁰

While the ECJ did not state that informing about the possible reclassification is always necessary in its ruling verbatim, there are convincing arguments that the ECJ followed the Advocate General’s opinion. First, although the ECJ acknowledges the possibility that, in the present case, the reclassified offence contained new elements in relation to the previous offence, the ECJ stressed that even if the reclassified offence did not include any new element in relation to the previous offence, the reclassification of the offence was still likely to have a non-negligible impact on the exercise of the rights of the accused. Second, referring to the Advocate General’s opinion, the ECJ explained that a clear and simple rule requiring the court to inform the accused about the potential reclassification of the offence contributes to the rights of the defence and fairness of criminal proceedings in member states, thereby enhancing mutual trust. Considering the mentioned arguments, the ECJ answered that Directive 2012/13 precludes national case law, which enables a court to reclassify the acts the accused is alleged to have committed without informing the accused person of the new envisaged legal classification. ⁸¹

Thus, the ECJ has given the accused a higher level of protection than that afforded by the ECtHR approach by emphasising the general rule that the accused must be informed of any modifications to the original charge without the exception for legal classifications that share the same elements. ⁸² This stance has been welcomed by some authors who believe that the ECJ justifiably diverged ‘from a piecemeal approach to criminal procedural rights’. ⁸³ We agree that this position marks an important step towards greater protection of the accused, who can count on the national courts to inform them about any changes to the legal classification, regardless of the relationship between the original and the modified legal classification. As a result, this stance does not place a burden of having to foresee all nominally distinctive criminal offences that could potentially correspond to the factual description of the criminal offence on the defence. ⁸⁴ If the state’s authorities choose an incorrect legal classification for the acts the accused is charged with and, subsequently, during the proceedings, modify the charge upon which the proceedings have been conducted and the accused has based their defence, the authorities must bear the responsibility of notifying the accused of the possibility of reclassification of the acts before the stage of deliberation.

A glance into the future: Modification of the charge through the lens of the relationship between the prosecution and the court

Until now, the case law of ECtHR as well as the secondary legislation of the EU, interpreted through ECJ’s decisions, addressed the issue of modifications of the charges primarily through the prism of the rights of the accused person to be informed about the charges and prepare a defence.

Nevertheless, in our view, rules and practices governing modifications of the charges may also impact the exercise of another right: the right to an impartial court (Articles 6 of the ECHR and 47 of the EU Charter of Fundamental Rights). Before both courts, the applicants had already raised the question of judicial partiality based on the power of the court to reclassify the charged criminal offence and to inform the accused person of a possible reclassification. As a result, both courts touched on this issue in their case law but have not had the opportunity to develop their position in depth.

In the case Bäckström and Andersson v. Sweden, ⁸⁵ the national court, which had the authority to modify the legal classification from the charges, notified parties that the charged facts the prosecutor classified as an attempted robbery could constitute a completed robbery. After this suggestion of the court, the prosecutor modified the legal classification of the charged facts from attempted to completed robbery. Subsequently, the court found the accused guilty of the completed robbery. The accused brought their case before the ECtHR, claiming that the court, which suggested to the parties a different legal classification of the acts, failed to act impartially and appeared ‘to be an extension of the prosecution’. ECtHR briefly explained that the court was not bound by the legal classification proposed by the prosecution and that, consequently, its intervention cannot be considered to have upset the principle of equality of arms.

ECJ addressed whether the rule allowing the court to reclassify the offence on its initiative and inform the accused of a possible reclassification of the criminal offence runs counter to the requirement of judicial impartiality in its preliminary ruling in BK Case C-175/22. The ECJ answered succinctly that neither the power of the court to modify the legal classification nor its obligation to notify the accused violates the presumption of innocence and impartiality of the court. The ECJ explained that if the court suggests that the acts described in the charge could correspond to another legal classification without the involvement of the prosecution, this does not by itself imply that the court has already adopted a decision regarding the guilt of the accused. ⁸⁶

From this, we can conclude that fair trial standards can, in principle, be met both in national systems where the court is bound to the legal classification suggested by the prosecutor as well as in systems where the court has the power to reclassify the acts the accused is alleged to have committed. In the latter case, however, the authorities are obligated to inform the defence, as described in the section above.

The question that remains open is the extent to which the factual basis of the charge may change during the trial, especially if the court’s activity prompts the modifications. The case law of the ECtHR has already indicated that when procedural functions overlap, and different functions are performed by the same person, it raises doubts about the court’s impartiality. ⁸⁷ If a judge was once a member of the prosecution division and dealt with a particular case as a prosecutor and later decides as a judge in the same case, this raises legitimate concerns about their ability to make an impartial decision. ⁸⁸ In support of this view, there is also research evidence of the phenomenon often referred to as confirmation bias. Research shows that once people formulate a baseline hypothesis about an event, they tend to notice facts that are consistent with that hypothesis and overlook the facts that contradict it, leading to partial decisions. ⁸⁹

The argument that the overlap between procedural roles of formulating the charges and deciding on the merits of the charges raises doubts about the impartiality could also be applied to cases where the court conducted the proceedings based on the prosecutor’s charge but found the accused guilty of an entirely different offence based on a different set of facts. In such a case, the charge was, in fact, formulated by the court that stepped into the prosecutor’s shoes.

A challenging question yet to be answered by the ECtHR and ECJ is when the modification of the charged facts constitutes a completely different set of facts. For example, we can envision such a violation in a hypothetical case where the prosecutor accuses the defendant of having driven recklessly and causing a road traffic accident in the vicinity of town Y on day X. If the court convicts the defendant for stabbing another person in a bar A on day B, the court convicted the defendant based on an entirely different set of facts than the prosecutor charged the defendant with. Additionally, concerns about potential violation of the court’s impartiality that stem from an overlap of the prosecutor’s and the court’s role may also arise if the prosecutor describes the factual basis of the charges in such vague terms that the court, which completes this description in its judgement, essentially defines the acts of the accused for the first time. If the particular authority formulates the charge, the same authority cannot be expected to impartially assess all possible versions of the event under consideration.

The described hypothetical scenarios constitute a clear violation of the right of an impartial court. However, real-life practices of modifying the description of facts are usually more nuanced, making it difficult at first glance to determine whether the authorities crossed the line and jeopardised the impartial role of the decision-maker. Where national courts have attempted to draw this line, the literature suggested that it is difficult to identify with sufficient clarity the criteria defining what constitutes an excessive modification of the factual basis of the charge from the body of decisions. ⁹⁰ Unclear rules concerning modifications of the charges heighten the risk for potential unlawful interventions of the courts, violating not only national law but also rights enshrined in international documents.

Conclusion

We have shown that European countries adopted different approaches to the extent to which the charged acts of the accused and their legal classification may be modified during the trial. The distinguishing factor that the comparative literature uses to divide the systems into two groups is the binding or non-binding nature of the legal classification from the prosecutor’s charge. On one side of the spectrum are systems that bind the court only to a set of facts defined in the charges, regardless of whether they could be characterised by nominally distinct offences. In these systems, the court is not bound by the prosecutor’s legal classification and is authorised to reclassify the facts as it sees fit, which is often associated with the iura novit curia principle. On the other side of the spectrum, there are legal systems where the judgement must refer to the same set of facts and the charge of the same offence, binding the court to the prosecutor’s initial legal classification. Additionally, national systems can also be distinguished in terms of whether the facts the prosecutor described in the charges may be subject to modification, the extent to which the description of the facts can be modified, such as by omitting words from the charges or adding words, and the authority that has the power to modify it.

We also brought attention to the fact that common denominators and differences between the systems can be misleading. Beneath the surface, the national rules regulating modifying of the charges are more complex than they seem at first glance, not least because the real effects of the rules on the modification of the charges can only be observed if one considers other procedural rules, especially those regulating the drafting of the charges or prohibiting double jeopardy.

This article began by asking what the European line between a Kafkaesque process and a fair trial is when it comes to modifications of the charges during the trial. As we have shown, the ECtHR and EU law draw the line between a Kafkaesque process, where the accused has no real chance to organise the defence and succeed, and a fair trial, by assessing the position of the defence after the charges were modified. Key requirements are that the defence was aware of the modified charges and had the opportunity to respond to them.

ECtHR has approached the issue of modification of the charges on a case-by-case basis without making a general rule as to whether the accused must be notified about the modification of the charge, assessing in each case whether the modification of the charge and the actions of the national authorities affected the preparation of a defence. On the other hand, it seems that the ECJ, interpreting Directive 2012/13, decided on a ‘clear and simple rule’ stating that the authorities have an obligation to inform the accused about the modification of the charges, particularly any changes to the legal classification, when the accused can still respond effectively, that is, before the stage of deliberation.

The flexible approach adopted by the ECtHR allows this court to consider all the circumstances of each case and to find a violation of the right to a fair trial only in cases where the modification of the charges has prejudiced the defence. On the other hand, no violation is found when the modification, particularly if it concerns minimal or unimportant changes of the charges, could not affect the organisation of the defence. However, while the ECtHR case-by-case approach offers protection to the accused in cases where the modification is considered to have potential effects on the preparation of the defence, it does, in some cases, where the legal classification is changed during the trial, expect the defence to foresee this modification, thereby relocating part of the burden to correct the potential mistakes the state made when choosing the legal classification to the defence. Such an approach enables national courts to determine whether the accused should be notified of the reclassification of the offence while they still have the time to respond, considering the specific circumstances of each specific case. This avoids unnecessary prolongation of proceedings in cases where such notification is not necessary. However, the disadvantage is that the criteria for deciding when the notification is necessary remain somewhat ambiguous.

On the other hand, the Directive 2012/13 generally requires that member states inform the accused person of the modifications of the charges. That said, this general obligation is mitigated with the following condition, which is open to interpretation: this obligation applies where it is necessary to safeguard a fair trial. In cases where the modifications of the charges include modifications of the legal classification of the charged acts, the ECJ has, as it appears, adopted a stance that the authorities are always obligated to inform the accused of the modification of the charges in advance.

The approach adopted by the ECJ appears less flexible and would probably (if the ECJ grants no exceptions to this rule in the future) sometimes lead to cases where the accused would be notified about the modification that would not affect their defence. Critics of this approach might argue that requiring mandatory notification of the legal reclassification will, in some cases, unnecessarily burden the courts and potentially lead to delays in criminal proceedings. For example, one could imagine the example of attempted and completed criminal offences. If someone is accused of a completed criminal offence but then found guilty of an attempted criminal offence, it is probably reasonable to expect the accused to have already taken this possibility of legal reclassification into account. ⁹¹ In such a case, notification is superfluous and will only unnecessarily prolong the proceedings.

We address these concerns with two counterarguments. First, observations that legal classifications seem to include the same constituent elements and, therefore, require the same line of defence can be misleading. If the original legal classification of the offence is robbery and it is then changed to theft, the new offence could affect the procedural provisions regulating the period for the time-barring of the offence or the form of prosecution (if, eg, petty offences are prosecuted only if the injured party formally requests it). ⁹² Therefore, we believe that the broadness of the approach presented can be seen as its advantage, as it ensures that none of the effects the modification could have on the preparation of the defence are overlooked or left out. Second, this general approach reflects the idea that if the state is to be given the power to correct mistakes it has made when drafting the indictment after the trial has commenced, the state should, at the very least, bear the responsibility of informing the accused of such a modification when they still have the time and opportunity to respond. In our view, denying this notice with the argument of avoiding trial delays would be unjust, as it was the state’s own interference with the charges that created the need for the notification in the first place.

In the last part of our article, we pointed out that modifications of the charges, especially if instigated or made by the court, may also raise concerns about the court’s impartiality. The ECtHR and ECJ have already indicated that the rule that gives a national court the power to modify the prosecutor’s legal classification of the charged acts does not, in itself, undermine the impartiality of the court. On the other hand, we believe that the court’s impartiality could be called into question if the court convicts the accused based on an entirely different set of facts than the prosecutor charged the accused with. In this case, it could be argued that there was an overlap of the procedural roles of the prosecutor and the court who stepped into the prosecutor’s shoes. However, both European courts have yet to rule on this matter.