Judicial recharacterisation of facts: A functional approach to the right to be informed of the cause and the nature of the accusation

Abstract

The right of an accused person to be promptly, clearly and fully informed of the accusation against them is a fundamental aspect of the right to a fair trial, as set out in major international human rights instruments. Yet, many civil law systems recognise the authority of courts to amend the legal characterisation of the facts, thereby allowing them to depart from the prosecution’s assessment of the applicable legal provisions. This article examines the tension between these two aspects of criminal adjudication: the right to be informed of the nature and cause of the accusation, and the judicial power of reclassification. Through a comparative analysis of the jurisprudence of the Human Rights Committee, the European Court of Human Rights and the Inter-American Court of Human Rights, the article identifies similarities and differences in their approaches to balancing flexibility in adjudication with procedural fairness. It concludes by advancing an interpretative framework that reconciles judicial discretion with fair-trial guarantees and provides practical guidance for domestic courts confronted with reclassification scenarios.

Introduction

The right of any person charged with a criminal offence to be informed promptly and in detail of the nature and cause of the accusation is among the most fundamental guarantees of a fair trial. Recognised across universal and regional human rights instruments – such as Article 14(3)(a) of the International Covenant on Civil and Political Rights (ICCPR), Article 6(3)(a) of the European Convention on Human Rights (ECHR) and Article 8(2)(b) of the American Convention on Human Rights (ACHR) – this safeguard is not a mere formality. Its central purpose is to ensure the accused’s ability to prepare and conduct an effective defence. Without timely and precise information about the accusation, the fairness of the proceedings is compromised. ¹

However, this right frequently collides with a long-standing judicial prerogative in many civil law systems: the power of courts to change the legal characterisation of the facts presented in the accusation. ² This power, commonly referred to as requalification or recharacterisation, enables the judge to apply a different criminal law provision to the same underlying facts, diverging from the initial legal assessment of the prosecution. This prerogative is justified both practically and normatively: it allows courts to prevent miscarriages of justice resulting from technical charging errors and ensures that proceedings reflect the true nature of proven facts. But if used indiscriminately, it can undermine the right of the accused to be fully and accurately informed of the accusation, leaving little opportunity for the defence to adjust its strategy.

The tension between these two principles has generated divergent approaches in international human rights jurisprudence. The European Court of Human Rights (ECtHR), for instance, has developed a nuanced test emphasising foreseeability and the defendant’s opportunity to address the new legal characterisation, whereas the Human Rights Committee and the Inter-American Court of Human Rights (IACtHR) have articulated somewhat different emphases. The lack of a fully harmonised approach raises pressing questions for domestic courts tasked with reconciling judicial flexibility with the imperatives of fair trial guarantees. ³

This article advances the thesis that the judicial authority to amend the legal characterisation of the facts should be interpreted and applied in light of the rationale behind the right to be informed of the nature and cause of the accusation – namely, to protect the defendant’s right of defence. From this perspective, the central concern is whether a change to the legal classification would prevent the defence from responding effectively. To safeguard the defendant’s right of defence and prevent them from being taken by surprise, the court must inform the defendant and provide them with sufficient time and resources to prepare their defence before amending the legal classification of the facts. However, if reclassification does not affect the defendant’s ability to defend themselves, recharacterisation may proceed without additional safeguards. Two common scenarios in which this occurs are (i) when the ‘Blockburger test’ or ‘same elements test’ applies and (ii) when the possibility of reclassifying the charge has already been discussed during the trial.

To illustrate the importance of this inquiry, consider the following scenario: The prosecution alleges that the defendant killed his female partner, charging him with intimate partner femicide – defined by law as the voluntary killing of a female partner by a man. ⁴ During the trial, multiple witnesses testified that the defendant had never been in a romantic relationship with the victim. While the court determines that the evidence establishes beyond a reasonable doubt that the defendant killed the victim, it does not prove that they were in a romantic relationship. What legal avenues are open to the court in such circumstances? Specifically, can the court convict the defendant of a different offence?

To answer these questions, the article first examines the normative foundations of the right to be informed of the accusation under the ICCPR, the ACHR, the ECHR, the African Charter on Human and Peoples’ Rights (ACHPR) and EU Law. It then surveys and critically assesses the case law of the Human Rights Committee, the ECtHR, the IACtHR and the Court of Justice of the European Union (CJEU), highlighting both convergences and divergences in their jurisprudence. Finally, it proposes an integrated interpretative framework that reconciles judicial flexibility with the essential guarantee of defence rights, thereby offering a principled approach to one of the most delicate tensions in criminal adjudication.

The right to be informed of the nature and cause of the accusation

The right to be informed of the nature and cause of the accusation is widely recognised under international law. The following sections analyse the regulation of this right under the ICCPR, the ECHR, the ACHR and EU Law.

The right to be informed of the accusation under the ICCPR

According to Article 14(3)(a) of the ICCPR, anyone charged with a criminal offence has the right to promptly receive a detailed explanation of the nature and cause of the charge against them in a language they understand.

The Human Rights Committee has stated that the right of all persons charged with a criminal offence to be promptly and in detail informed, in a language they understand, of the nature and cause of the criminal charges brought against them applies to all criminal cases. ⁵ This duty applies to both free persons and those deprived of their liberty. ⁶ However, it has been stated that the duty to inform under Article 14(3)(a) is more precise and comprehensive than that for arrested persons under Article 9(2). ⁷ The latter states that anyone arrested must be informed of the reasons for their arrest at the time of arrest and promptly informed of any charges against them.

The term ‘promptly’ means that the information must be provided as soon as the person concerned is formally charged with a criminal offence under domestic law or publicly identified as such. ⁸

In Sendic Antonaccio v. Uruguay, the Human Rights Committee found that the right to be informed of criminal charges had been violated, as a person sentenced to thirty years of imprisonment plus fifteen years of special security measures had not been informed of the charges brought against them. Furthermore, he was never able to contact the lawyer assigned to him. His trial was held in camera and in his absence, and he was not permitted to present witnesses in support of his case. ⁹

The duty to inform relates to the nature and cause of the charge or accusation. It does not only refer to the precise legal description of the offence but also to the underlying facts. ¹⁰ This duty may be fulfilled by stating the charge either orally, provided it is later confirmed in writing, or in writing. In either case, the information must indicate both the relevant law and the general facts on which the charge is based. ¹¹

An important feature is that the information provided must be sufficient for the defendant to prepare their defence. ¹² Some scholars have emphasised the relationship between the right to a defence and the right to be informed of the charges, stating that Article 14(3)(a) of the ICCPR is one of two provisions dealing with the right to prepare a defence. ¹³

In Kurbanova v. Tajikistan, the Human Rights Committee also found a violation of the right to be informed of the charges. In this case, the applicant had been detained since 5 May 2001 for other reasons when, on 11 June 2001, he was informed that he was suspected of killing others. However, he was not charged with these crimes until 30 July 2001. During his detention, except for the last week starting on 23 July 2001, he was without the assistance of a lawyer. The Committee held that the delay in presenting the charges to the defendant and in securing him legal assistance had an adverse effect on his ability to defend himself, in a manner that constitutes a violation of article 14(3)(a) of the Covenant. ¹⁴

The right to be informed of the accusation under the ACHR

Similarly to the ICCPR, Article 8(2)(b) ACHR recognises the right of anyone accused of a criminal offence to be notified in detail of the charges against them in advance.

The IACtHR has ruled that, to comply with Article 8(2)(b), the state must inform the accused of the specific crimes or offences they are charged with, as well as the reasons for the charges, the supporting evidence and the legal definition of the facts. ¹⁵ The defendant must be informed directly through official channels. Learning the information through the media or by inference from the questions of state agents is not sufficient. ¹⁶

To enable the defendant to exercise their right to defend themselves and present their version of events to the judge, the information provided must be a clear, detailed and precise description of all the facts. ¹⁷ The IACtHR has emphasised the connection between the right set out in Article 8(2)(b) and the right to defence, stating that strict adherence to the former is essential for the effective exercise of the latter. ¹⁸ The purpose of Article 8(2)(b) is to ensure that the accused are given all the facts and legal information on which the charges are based, so that they can build an adequate defence. ¹⁹

Although the content of the notification may vary depending on the progress of the investigation, the defendant should be informed of the charges against them in as much detail as possible. ²⁰ For example, in J. v. Peru, the IACtHR found that the vagueness of the description of the criminal conduct of which the defendant was accused infringed their right to defence. ²¹

The IACtHR has determined that complying with Article 8(2)(b) in a timely manner is essential to the effective exercise of the right to defence. ²² In this regard, it has been emphasised that the word ‘prior’ indicates a moment preceding the start of the oral trial, and that the accused must have access to the information for a sufficient amount of time to prepare a defence. This is closely related to the guarantees found in Article 8(2)(c), which grants the accused the right to adequate time and resources for preparing their defence. ²³

Furthermore, the IACtHR has noted that the transition from ‘person under investigation’ to ‘accused’, and occasionally even ‘convicted’, can occur at any time. Therefore, it is not possible to wait until the person has been formally accused or deprived of their liberty before providing them with the information essential for the timely exercise of their right to defence. ²⁴

The right to be informed of the nature and cause of the accusation does not oppose the court’s authority to amend the legal characterisation of the charge. As the IACHR has ruled, while the defendant has the right to know the facts with which they are charged, the legal classification may be varied by the prosecutor or judge during the process, without this violating the right to defence, provided that the facts themselves remain unchanged and the procedural guarantees included in the law for changing the classification are observed. Therefore, the principle of coherence or correlation between the indictment and the conviction, which constitutes a fundamental guarantee of due process in criminal matters, ²⁵ implies that the judgement may be based only on the facts or circumstances included in the indictment. ²⁶

The right to be informed of the accusation under the ECHR and the ACHPR

According to Article 6(3)(a) of the ECHR, anyone charged with a criminal offence has the right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.

The ECtHR has underlined that the right to be informed includes the cause of the accusation, that is to say, the acts he is alleged to have committed and on which the accusation is based, as well as their nature, that is, the legal characterisation given to those acts. ²⁷ Therefore, the absence of any of these elements will mean a violation of the right in question.

The ECtHR has recognised a close link between the right to be informed of the accusation and the right of defence, stating that the scope of Article 6(3)(a) must be assessed in the light of the more general right to a fair hearing guaranteed by Article 6(1). As the ECtHR has affirmed, the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, must be assessed in relation to Article 6(3)(b), which confers on everyone the right to have adequate time and facilities for the preparation of their defence, and in the light of the more general right to a fair hearing embodied in Article 6(1). ²⁸

The extent of the ‘detailed’ information varies depending on the circumstances of each case. However, the defendant must at any rate be provided with sufficient information as is necessary to understand the extent of the charges against them with a view to preparing an adequate defence fully. ²⁹

The duty to inform the accused rests entirely on the state and cannot be complied with passively by making information available without bringing it to the attention of the defence. In Mattoccia v. Italy, the state argued that an earlier and simple request would have allowed the applicant to have at his disposal all the necessary information at the trial. The ECtHR rejected such an argument, stating that even though the applicant could have sought access to the prosecution file in due time, that did not release the state from its obligation to inform the defendant promptly and in detail of the full accusation against him. That duty rests entirely on the authority’s shoulders and cannot be complied with passively by making information available without bringing it to the attention of the defence. ³⁰

Similar to the IACHR, the ECtHR has ruled that the right to be informed of the nature and cause of the accusation does not prevent the court from amending the legal classification of the charge. However, reclassification must not affect the defendant’s ability to defend themselves. Consequently, the court must inform the defendant of any changes to the accusation and provide them with adequate time and resources to respond and organise their defence based on any new information or allegations. ³¹

According to the ECtHR, if a reclassification of the offence relates to an essential aspect of the charges brought against the accused, it is considered to be foreseeable by the accused and therefore will not be a surprise to them. ³² To assess the impact of the reclassification on the right to defence, it is also relevant to consider whether the elements of the reclassified offence were debated during the proceedings. ³³

The ECtHR has found a violation of Article 6 where the elements that constituted the original offence of which the defendant had been charged differed from those that constituted the reclassified offence, and the defendant did not have an opportunity to defend themselves against the reclassified offence. ³⁴ Conversely, where the constituent elements of the original offence encompassed all those of the reclassified offence, the Court held that the accused had already had an effective opportunity to defend themselves. Therefore, informing the accused of the reclassified charges only upon delivery of the judgement did not infringe the applicant’s rights under Article 6 of the Convention. ³⁵

Information concerning the charges, including the legal characterisation that the court might adopt, must be provided either before or during the trial by means of a formal or implicit extension of the charges. Simply referencing the abstract possibility that the court may reach a different conclusion than the prosecution regarding the classification of an offence does not suffice. ³⁶

Lastly, the ECtHR has stated that defects in the notification of the charge can be remedied during the appeal process, provided the defendant is given the opportunity to present their defence regarding the reformulated charge and contest their conviction based on all relevant legal and factual aspects. ³⁷

The African Court on Human and Peoples’ Rights (AfCHPR) has also recognised the link between the right to be informed of the accusation and the right to defence. Although the ACHPR does not expressly recognise the right to be informed of the accusation, in the case of Mohamed Abubakari v. United Republic of Tanzania, the AfCHPR held that the ‘right of the accused to be fully informed of the charges brought against them is a corollary of the right to defence and, above all, a key element of the right to a fair trial’, citing the case law of the ECtHR and the IACHR. ³⁸

The right to be informed of the accusation under EU Law

According to Article 6 of Directive 2012/13 of the European Parliament, Member States shall ensure that suspects or accused persons are provided with information about the criminal act of which they are suspected or accused. This information must be provided promptly and in sufficient detail to ensure the fairness of the proceedings and the effective exercise of the rights of the defence. Furthermore, Member States shall provide, at the latest on submission of the merits of the accusation to a court, detailed information on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person. ³⁹

The CJEU has stated that Directive 2012/13 does not regulate the procedures whereby the information about the accusation must be provided to the accused person. However, those procedures cannot undermine the objective referred to inter alia in Article 6 of Directive 2012/13, which is, as set out in recitals 27 and 28, to enable the effective exercise of defence rights and to ensure fair proceedings. To this end, the accused must receive detailed information on the charges, including the nature and legal classification of the criminal offence, ⁴⁰ and have sufficient time to acquaint themselves with the case materials, to prepare their defence effectively. Sending incomplete information and granting partial access to the case materials are insufficient in this regard. ⁴¹

This disclosure and access provide the defendant with detailed information about the alleged acts, their legal classification, and the supporting evidence. The defendant must familiarise themselves with this information and evidence before the hearing begins, so that they can participate properly in the proceedings and present their case effectively. ⁴²

The CJEU has ruled that Directive 2012/13 does not prevent the information provided to the defendant about the charges against them from being amended later, as the same Article 6 of the Directive explicitly states that Member States shall ensure that suspects or accused persons are informed promptly of any changes in the information given where this is necessary to safeguard the fairness of the proceedings. However, such amendments and evidence must be disclosed to the accused person or their lawyer at a time when they still have the opportunity to respond effectively before the deliberation stage. ⁴³ Furthermore, Article 7(3) of the Directive states that, when new evidence is obtained by the competent authorities, access to that evidence must be granted in due time to allow it to be considered. ⁴⁴

If the details of the accusation change during criminal proceedings in a way that substantially affects the position of the suspects or accused, this should be communicated to them in a timely manner. The CJEU has emphasised the significance of communicating the legal classification of the offense to effectively exercise the right of defence. Communicating this information to the accused person is essential to enable them to understand the charges and organise their defence. ⁴⁵

Consequently, any amendment to the legal classification of the acts is likely to have an impact on the defence’s rights and the fairness of the proceedings. This is the case where the new offence includes elements that the accused person has not yet had the opportunity to address. To safeguard the fairness of the proceedings, as required by Directive 2012/13, the criminal court must inform the defendant of the new classification at a point that allows them to prepare their defence effectively, and offer them the opportunity to exercise their defence rights specifically and effectively in this regard. ⁴⁶ The need to grant the accused person a period to prepare or revise his or her defence in such a context and the duration of that period are elements which must be determined by that court or tribunal, having regard to all the relevant circumstances. ⁴⁷

It should also be emphasised that, in this context, the fact that the new classification cannot entail the application of a more severe penalty is entirely irrelevant. Indeed, the fairness of the proceedings requires that the accused person be able to fully exercise his or her rights of defence. The greater or lesser degree of severity of the penalty incurred has no bearing on the question of whether it has been possible to exercise those rights. ⁴⁸

In conclusion, the CJEU has held that Article 6(4) of Directive 2012/13 precludes national case law that allows courts to convict on the basis of a legal classification of the acts different from that advanced by the prosecution without informing the accused in due time and allowing them to exercise their defence rights effectively. In that context, the fact that that classification cannot entail the application of a more severe penalty than the offence of which the person was initially accused is irrelevant; what matters is the opportunity to defend oneself against the charge as reclassified. ⁴⁹

This reasoning is directly related to whether the court has authority to amend the legal classification of the facts. In contrast to common law systems, where courts are typically bound by the prosecution’s classification, many civil law jurisdictions recognise the power of judges to reclassify. The following section will examine the scope and limits of this prerogative.

The court’s authority to amend the legal characterisation of the charge

The right to be informed of the accusation does not exist in isolation. Unlike common law systems, where courts are generally bound by the legal classification set out in the accusation, ⁵⁰ in many civil law jurisdictions, the court is not bound by the legal classification made by the prosecution. In these jurisdictions, the courts have the authority to reclassify the facts of the case if they deem a different legal classification to be more appropriate, even if this disadvantages the defendant. ⁵¹

For example, Article 521 of the Italian Code of Criminal Procedure allows the court to provide a different legal characterisation of the facts than that mentioned in the accusation. ⁵² Likewise, Section 4(3) of Chapter 45 of the Swedish Code of Judicial Procedure provides that the prosecutor must identify the criminal act in the accusation, specifying the time and place of its commission and the other circumstances required for its identification, as well as the applicable legal provisions. Meanwhile, Section 3 of Chapter 30 thereof states that the judgement may relate only to an act for which a prosecution was properly instituted, or to a matter referred by statute to the court’s criminal jurisdiction. However, the court is not bound by the legal characterisation of the offence or the applicable provisions of law. This means that the court can convict the accused of a different crime if it is covered by the description of the criminal act as charged. ⁵³ Similarly, Section 264(2) of the German Code of Criminal Procedure states that the court is not bound by the classification of the offence that formed the basis of the order to open the main proceedings. However, Section 265(1) protects the defendant by requiring the court to inform them if it intends to change the legal characterisation of the same facts and to give them the opportunity to adapt their defence, specifying the reasons for the potential change as clearly as possible. This applies not only when a more serious offence or mode of commission is involved, but also when less serious offences are involved. ⁵⁴

This broad power of the court is reflected in the Latin legal maxim ‘iura novit curia’, which states that the court is presumed to have knowledge of the relevant law and must apply it of its own accord. ⁵⁵ This is a common approach in civil law jurisdictions, where the judicial power to define the legal parameters of a dispute has historically grown, evolving into a duty for the court to identify all legal provisions relevant to reaching a decision, not just those invoked by the parties involved. ⁵⁶

The authority to reclassify serves two complementary purposes. First, it preserves the integrity of the adjudicatory process by ensuring that the conviction accurately reflects what happened and the legal facts proven at trial. It prevents discrepancies between the facts and the law, thereby safeguarding the integrity of the process. Secondly, it prevents impunity where an inaccurate legal assessment might otherwise prevent a conviction. Allowing acquittals to be the result of incorrect legal qualifications would certainly be unacceptable.

The second reason has been emphasised particularly in the context of the International Criminal Court. According to Article 55(1) of the Regulations of the Court, the Trial Chamber ‘may change the legal characterisation of facts to accord with the crimes under articles 6, 7, 8 or 8 bis, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges’. Acquittals based solely on pre-trial misclassifications would frustrate the statute’s objective of ending impunity. Article 55 of the ICC’s Regulations therefore functions to ‘close accountability gaps’, aligning with the Rome Statute’s overarching purpose. ⁵⁷

Although legally justified, recharacterisation directly affects the defendant’s right to be informed of the accusation against them. ⁵⁸ Two different approaches have been identified with regard to when the right to be informed of the nature and cause of the accusation has been violated. The ‘functional approach’ focuses on the role of information in preparing the defence. It only covers information that is useful to the defendant’s case. In practice, this right will only be violated if it can be shown that the defendant’s defence was hindered due to missing, misleading or otherwise inadequate information. ⁵⁹ Conversely, the ‘absolutist approach’ treats this right as an independent guarantee. A violation could be found even in the absence of evidence that better information would have been useful to the defendant’s case. ⁶⁰

In BK, the Advocate General supported the need for an absolutist approach. She argued that, for the purposes of Article 6(4) of Directive 2012/13, informing the defendant that the offence could be reclassified in due time is always necessary to safeguard the fairness of the proceedings. This is the case even if the accused person was aware that reclassification was possible, and even if all the elements of the new offence are included in the original offence. The Advocate General continued that if such an interpretation were accepted, it would mean that a court considering reclassification must always, without exception and regardless of the case’s specific circumstances, inform the defendant and give them the opportunity to raise a new defence. Such a prolongation of proceedings should not be grounds for rejecting the proposed interpretation. ⁶¹

The case-law stemming from international human rights bodies clearly betrays a functional approach. ⁶² As noted, international bodies have consistently linked the right to be informed of the accusation to the right of defence. They have further interpreted the authority to reclassify the facts through the prism of the accused’s capacity to anticipate and contest the revised legal characterisation, stating that such reclassification is permissible only where the defendant is duly notified and afforded adequate time and facilities to recalibrate their strategy and organise a defence considering the new classification. ⁶³ For example, the Human Rights Committee has emphasised that the notification must detail both the legal definition of the offence and the underlying facts, and that the information provided must enable the defendant to prepare their defence. The IACHR has gone further, requiring a detailed explanation of the factual and legal basis of the charge while recognising that legal classifications may change during proceedings. Meanwhile, the ECtHR has set the boundary at foreseeability: if the reclassification stems from elements intrinsic to the indictment, it may be considered compatible with Article 6 of the ECHR, provided the defendant has had an opportunity to address it. Article 6(4) of Directive 2012/13 also supports a functional approach since it states that defendants must be informed of any changes to the information provided ‘where this is necessary to safeguard the fairness of the proceedings’.

In conclusion, since the right to be informed of the accusation must be interpreted through the lens of the right of defence, ⁶⁴ the central concern is whether a change to the legal framework would prevent the defence from responding effectively. ⁶⁵

A functional approach is preferable to an absolutist approach because it grounds the right to be informed of the accusation in the right to defence. An absolutist reading risks turning the guarantee into a formality, where the mere absence of an additional notification would automatically constitute a violation of human rights, regardless of whether it impaired the accused’s ability to defend themselves in any way. This approach prioritises procedure over substance, favouring ritual over fairness. By contrast, the functional perspective requires analysis to consider the practical impact of the alleged violation on the accused’s defence. It recognises that rights exist within a broader framework of procedural justice and that their aim is to ensure a fair trial, rather than generating avoidable technicalities.

Moreover, the absolutist approach carries the inherent danger of turning rights into tools that can be used to exploit procedural errors and derail proceedings, even when no actual prejudice has occurred. This is particularly problematic in systems where the reclassification of offences is necessary to prevent impunity and ensure that judgements are aligned with proven facts. A functional approach avoids this issue by finding a violation only if demonstrable prejudice to the defence has occurred.

Supporters of the absolutist approach may argue that strict, automatic notification duties are necessary to ensure the predictability of criminal proceedings. From this perspective, failing to notify, even if the defendant has not suffered demonstrable prejudice, is seen as a threat to fairness. However, this argument overlooks the fact that procedural guarantees lose legitimacy when applied indiscriminately and detached from their rationale. If every technical lapse is elevated to a violation, rights risk becoming tools that allow defendants to frustrate proceedings without any real impairment to their defence. A functional approach avoids this outcome by requiring a tangible link between the alleged procedural defect and the defendant’s ability to respond to the case against them.

To protect the defendant’s right of defence and ensure they are not taken by surprise, certain conditions must be met before the court can amend the legal qualification of the facts. These conditions are to inform the defendant of any change to the accusation, and to give them adequate time and resources to organise their defence and respond to the new characterisation. Failure to observe these safeguards would violate the defendant’s right to defence and their right to be informed of the accusation.

The above conditions are expressly recognised, for instance, in Article 55 of the Regulations of the International Criminal Court, according to which, if at any time during the trial the Chamber deems that the legal characterisation of the facts may change, it shall notify the participants of this possibility and allow them to make oral or written submissions. To ensure that the participants have adequate time and facilities for effective preparation, the hearing may even be suspended. ⁶⁶

The following three examples of recharacterisation illustrate what has been said above.

1. The defendant has been charged with negligent homicide on the basis that they drove carelessly, causing a fatal accident. Throughout the trial, the defence strategy focuses on demonstrating that the defendant took reasonable precautions and that the accident was unforeseeable. However, based on the evidence presented, the court rules that the defendant acted with dolus eventualis and reclassifies the offence as voluntary homicide.

2. The defendant has been charged with theft. The defence strategy centres on contesting ownership of the goods and minimising their value. However, when delivering the verdict, the court reclassifies the offence as robbery on the basis that the defendant used coercion to take the item.

3. The defendant has been charged as the principal offender in a fraud case. The defence argues that the defendant had no knowledge of the scheme and is therefore not directly liable. However, midway through the proceedings, the court reclassifies the charge as aiding and abetting fraud.

In all three cases, it can be argued that reclassification reduced the defendant’s ability to defend themselves. In the first case, the defence did not have the opportunity to challenge the element of dolus eventualis. The cross-examination of witnesses, the presentation of expert testimony and the formulation of arguments would all have been structured differently if dolus eventualis had been at issue from the outset. In the second case, the defence did not contest issues of coercion and were not given the opportunity to challenge witness testimony or introduce mitigating evidence regarding the alleged use of force. In the third case, although it was based on the same facts, the change fundamentally altered the defence’s position. Rather than denying direct involvement, the accused would have had to challenge the mens rea element, for example, or argue that they were not close enough to the main perpetrators. Without warning, the defence was blindsided and unable to prepare arguments tailored to secondary liability.

In these three cases, the court’s failure to inform the defendant of the changes to the legal qualification of the accusation and provide them with adequate time and resources to organise their defence and respond to the new characterisation amounted to a violation of their right to be informed of the accusation.

However, since a functional approach is preferred here, what has been stated so far does not mean that failing to inform the defendant and give them the necessary time and resources to prepare their defence will always violate their fundamental rights. Indeed, if the right to be informed of the accusation is closely linked to the right of defence and these safeguards are intended to protect that right, then where reclassification does not affect the defendant’s ability to defend themselves by taking them by surprise, the safeguards lose their purpose and become irrelevant. Therefore, there will be no need to enforce them.

Two common scenarios in which the above safeguards lose their purpose and become irrelevant occurs are as follows: (i) when the ‘Blockburger test’ or ‘same elements test’ applies and (ii) when the possibility to recharacterise the charge has already been discussed during the trial.

In Blockburger v. United States, the Supreme Court held that ‘where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offences or only one, is whether each provision requires proof of a fact which the other does not’. ⁶⁷ The test emphasises the elements of the two offences, as each must require something that the other does not to be considered different offences, despite a substantial overlap in the proof offered to establish the crimes. ⁶⁸ The Blockburger test focuses on the statutory elements of each offence rather than the evidence that would need to be presented at trial. ⁶⁹

The Blockburger test rests on the assumption that Congress does not usually intend to punish the same offence under two different statutes. ⁷⁰ Accordingly, where two offences are the same under this test, cumulative sentences are barred unless legislative intent to allow them is unmistakably clear. ⁷¹ In cases of doubt regarding legislative intent, cumulative punishments should not be imposed. ⁷²

Under the Blockburger test, greater and lesser included offences are considered to be the same offence. A lesser included offence exists when all its elements constitute those necessary to prove a more serious offence. ⁷³ In Brown v. Ohio, for example, the defendant stole a car and drove it for nine days, violating two Ohio statutory provisions: first, joyriding, which is defined as unlawfully taking or operating a car without the consent of the owner; and second, auto theft. As all the elements of joyriding were included in auto theft, the Supreme Court concluded that joyriding was a lesser included offence of auto theft. The Court then ruled that the greater inclusive offence is, by definition, the same offence as any lesser offence included within it. ⁷⁴

Consider the following example: According to Section 211 of the German Criminal Code, one circumstance that classifies a voluntary homicide as murder (Mord) is if the perpetrator kills the victim out of greed. Suppose the prosecution charges the defendant with murder on the basis that they killed the victim out of greed. During the trial, however, witnesses testified that the motive was not greed, but rather another motive that does not qualify as a circumstance of murder under German law. The court finds that the defendant intentionally killed the victim, but none of the circumstances of murder listed in Section 211, including greed, apply. The defendant is therefore acquitted of murder but convicted of voluntary homicide under Section 212 of the Criminal Code.

If the defendant complained that they had been convicted of an offence not mentioned in the indictment and challenged the conviction on the basis that the court had not informed them of the possibility of reclassification, this complaint would not be upheld. From the outset of the trial, the defendant was aware that if the special element of the murder charge – greed in this case – was not proven, they would be convicted of voluntary homicide instead. Furthermore, the defendant could defend themselves against all elements of the offence of voluntary homicide, which is defined as intentionally killing another person. Therefore, reclassification from murder to voluntary homicide did not affect their ability to defend themselves. ⁷⁵

The position of the ECHR is similar to the one proposed here. As mentioned above, the ECHR has ruled that legal reclassification must be considered to be sufficiently foreseeable by the defendant, and that there will be no violation of the right to be informed of the accusation if the modification is based on an intrinsic element of the charge. For example, in Salvador Torres v. Spain, the ECHR held that the accused’s status as a public employee was an intrinsic element of the original embezzlement charge and therefore known to the accused from the outset of the proceedings. For this reason, the ECHR held that the defendant must be considered to have been aware of the possibility that the courts would find that this underlying factual element could, in the less severe context of simple embezzlement, constitute an aggravating circumstance for the purpose of determining the sentence. ⁷⁶

A second situation in which the conditions for amending the legal characterisation of the facts should not be enforced arises when the possibility of reclassification has been discussed by the parties during the trial. The following example illustrates this: During a trial for voluntary homicide, the defence argues that the defendant did not act with dolus, since he only intended to harm the victim with a weapon. Therefore, the defence contends that the defendant should only be convicted of causing bodily harm, carrying a weapon in a public place without authorisation and insulting the victim. In this case, the latter two offences are undoubtedly not lesser included offences of voluntary homicide. However, if the court convicts the defendant of these three offences based on the defence’s argument, the defence cannot claim to have been taken by surprise. This is because the defence has actively shaped the discussion of legal characterisation in these circumstances and must be deemed to have anticipated the possibility of a conviction on an alternative charge.

In Haxhia v. Albania, the ECtHR dismissed the applicant’s complaint after noting that, as set out in the District Court’s judgement, the prosecutor had addressed the possibility of a recharacterisation of the facts during the trial, to dismiss the complaint. Therefore, the Court concluded that the defendant could anticipate the reclassification of the criminal charge against them. ⁷⁷

Similarly, in Leka v. Albania, the ECtHR observed that the applicant had an adequate opportunity to put forward his defence with regard to the elements of the offence of robbery resulting in the death of a person, both during the investigation and at the trial before the court. As the defence had addressed the relevant issues, the ECtHR concluded that the requalification did not place an additional burden on the defendant. ⁷⁸

Once again, if the duty to inform the defendant of any changes to the accusation and to provide them with adequate time and resources to prepare their defence is intended to safeguard the right of defence, it can be concluded that this duty loses its purpose and should not be enforced when the possibility of reclassifying the charge has already been discussed during the trial. In such a case, the defendant could not claim to have been taken by surprise or to have been unable to prepare their defence.

International human rights jurisprudence reinforces the view that the decisive issue is not whether the court departs from the prosecutor’s initial legal assessment, but whether the defendant has been denied a genuine opportunity to prepare and present their defence. If reclassification does not affect the defendant’s ability to defend themselves, and if they are not taken by surprise – for example, due to the relationship between offences or the issues debated at trial – then the duty to inform the defendant of any changes to the accusation and to provide them with adequate time and resources to prepare their defence becomes redundant and unnecessary. Conversely, when reclassification introduces novel legal elements not previously considered, the duty to notify becomes essential, alongside measures to ensure the defendant has a fair chance to adapt their defence.

One final point must be addressed. While the functional approach provides a principled and contextualised method of reconciling the right to defence with the power to recharacterise the facts of the accusation, it has one limitation. Since it requires judges to consider each case individually to determine whether reclassification would undermine the defendant’s right to defence, it can be difficult to apply in borderline situations, making the outcomes challenging to foresee. The difficulty then lies in ensuring that the flexibility inherent in the functional approach does not undermine the purpose of the right to be informed of the accusation. This is the responsibility of the trial judges.

Conclusions

This article has demonstrated that the right to be informed of the nature and cause of the accusation, and the court’s authority to amend the legal characterisation of the facts are not inherently incompatible. However, their interaction must be carefully managed to safeguard the right to a fair trial. A comparative analysis of the ICCPR, the ECHR, the ACHR and EU law, along with the case law of their supervisory bodies, shows that there is a general agreement that judicial reclassification is only legitimate if it does not prevent the accused from having a fair chance to prepare for and respond to the new legal characterisation.

Two safeguards consistently emerge as decisive across systems. First, the court must inform the defendant of the new classification in sufficient time to allow them to prepare their defence effectively. Secondly, the court must give the defendant the opportunity to exercise their defence rights effectively. However, if reclassification does not affect the defendant’s ability to defend themselves – for example, due to the relationship between offences or the issues debated at trial – then these two safeguards become redundant and unnecessary.

This analysis supports a functional approach to the right to be informed of the accusation. What matters is not the formal alignment between indictment and conviction, but whether the defence was materially hindered. This approach avoids the rigidity of an absolutist view, which could reduce the right to a mere procedural formality, as well as excessively limiting the court’s authority to recharacterise the charge.

The key question is not whether courts can deviate from the prosecution’s legal assessment, but rather what conditions must be met for such deviation to remain consistent with the right to defence. Adopting the interpretative framework proposed here enables domestic courts to reconcile adjudicative flexibility with the imperative of procedural fairness. This approach ensures that criminal proceedings deliver accurate justice while upholding the rights of the accused.