Fiction of the ?historic event? criterion in the context of the accusatorial principle.: On larceny constituting fence (or vice versa?)

Abstract

The criminal trial is constrained within the bounds set by the indictment filed by the prosecutor. That document describes (or ought to describe) what had happened and why it is deemed to constitute a crime. However, as it quite frequently happens, the initial description of the crime in the indictment requires further modifications in the course of the trial. Some of these modifications are rather trivial (date or other quantitative features, venue, etc.) but other, leading to a complete overhaul of the indictment, are quite problematic. As according to the judiciary neither legal qualification nor the description of the indicted crime is binding for the court, only the ?historic event? constituting factual basis for the indictment provides bounds for such modifications. Unfortunately, recent Supreme Court rulings seem to be contradictory ? some extend the boundaries of potential modifications to extreme (factual event regardless of its vagueness), while other limit such modification by claiming that the concept of ?historic event? may not be so general to enable a de facto alternative indictment. Has ?historic event? as criterion become a pure fiction? Are there any limits for a manner of constructing a factual description of the indicted crime and of modifying such description? Are there an procedural mechanisms to secure the right to defense in case of such modifications?