The law grants the court the authority to amend the charges and change the legal description bestowed by the public prosecution on the defendant. The court has the right to reflect the incident after scrutinizing it under the correct legal description and correcting any material error or oversight in the charge's wording in the referral order, or in the request for attendance.
However, when the legal description's amendment results in a harsher penalty, or when the charge itself undergoes a transformation with new elements added to it, this change necessitates that the court alerts the defendant's defense to this change and grants them a period to prepare their defense based on the new description or amendment, should they request it.
If the court fails to alert the defense of the new amendment in the charge, its ruling is based on a flawed procedure that violates the defendant's right to defense.
Here, we refer to a case where the public prosecution brought the defendant to trial for the crime of theft. The first-instance court sentenced him to one year of imprisonment with immediate effect. The appeal court, however, convicted him of fraud.
The ruling was appealed to the Court of Cassation on the grounds that the change made by the court in the charge was not merely a change in the description of the actions attributed to the defendant, which the court has the power to effect without prior modification in the charge. Instead, it extended to the attribution of a new incident to the appellant and a modification in the charge itself that the court can only make during the trial and before the ruling on the lawsuit, provided that the defendant is alerted to it and given a period to prepare his defense based on the new amendment if he requests it.
The court of cassation, taking this into consideration, decided to overturn the challenged judgment. It stated that the crime of theft, as stipulated in Article 318 of the Penal Code on which the criminal case was filed and the trial proceeded, differs in its foundations and elements from the crime of fraud with which the court convicted the defendant under Article 336 of the same law. It was incumbent upon the court to alert the defendant to the amendment in the charge. However, as it did not do so, its challenged judgment was based on a flawed procedure that violated the appellant's right to defense. This fault necessitates its reversal for this reason, without the need to examine the other reasons raised by the appellant.
To conclude, this article aims to underscore the importance of the right to defense and the correct legal procedures that must be followed when amending charges in criminal cases.
Originally published 16 May 2023
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