Apparent joinder of criminal offenses in the Criminal law of Serbia

The original legal memorials do not recognize joinder of criminal offenses as an independent criminal and legal institution. The application of special rules used to regulate the possibility that the offender, with one or several criminal acts, commits the substance of several criminal offenses was completely foreign to the understanding of criminal law in the past. Therefore, it is redundant to discuss the existence of apparent joinder of criminal offenses in such a manner. However, in court proceedings, we can see a hint of awareness that the offender, in certain situations, had acted within the framework of joinder of criminal offenses. At most, the perpetrator was punished more severely if they had committed the substance of several criminal offenses with one or more acts.

The legal institution of joinder of criminal offenses had gradually evolved in such a way that its presence can be seen in the newest codifications. Here, it is reasonable to presuppose the application of an institution that covers situations where the perpetrator, with one or more acts, had committed the substance of several criminal offenses, which are to be arbitrated at the same time. However, apparent joinder of criminal offenses included the introduction of special legal constructions and special rules. This provides the solution for situations where the legislator considers that one and not several criminal offenses exist regardless of the fact that the perpetrator had, with one or more actions, entered the incriminating zone of several criminal offenses.

At present, there is an institution of real and apparent joinder of criminal offenses in national legislatures of a large number of countries. Certain differences can be noted in terms of individual forms of apparent ideal and apparent real joinder of criminal offenses. In international criminal law, the presence of joinder of criminal offenses can be seen in the verdicts of judicial tribunals. We can primarily see that Hague Tribunal had applied joinder of criminal offenses in its verdicts. Based on the practice of Hague Tribunal, it can be concluded that judicial assembly determined in a large number of cases that a certain individual (the defendant) had participated as a perpetrator

(indirect, direct or co–perpetrator) or as an accessory (in any form or manner of participation in collective criminal offense) in committing a large number of international criminal offenses, meaning, that they had committed multiple violations of the Statute during one event. Consequently, Hague Tribunal applied cumulative indictment, justified by the fact that prior to presentation of evidence (at the main hearing) it was not possible to determine with certainty whether all or only some of the charges would in fact be proven (Jovašević, 2012, p. 94).

2.    The term and meaning of apparent joinder of criminal offenses

As a rule, the perpetration of criminal offenses by a person through one or several acts is dealt within the framework of real joinder of criminal offenses institution. There are situations when the perpetrator, with one or more perpetrating acts commits several criminal offenses, however, due to their connected nature, only one criminal offense is considered to have been committed. In this case, it only seems that several criminal offenses have been committed, all the while legally they are considered to be one criminal offense. The reason the institution of apparent (unreal) joinder of criminal offenses exists is that in this case, it is criminally and politically unjust to prosecute the defendant for several criminal offenses. Among other things, multiple punishment of a perpetrator is not allowed for the reasons of elementary equity, when in fact only one and not several criminal offenses have been committed.

Ratio legis of apparent joinder of criminal offenses consists of the presence of legal incriminations that contain the substance of several criminal offenses, and therefore it would be unjust to punish the perpetrator two times. This is due to imperfect legal norms, which are a feature of not only our, but also other criminal legislatures. The literature often cites the criminal offense of embezzlement – Article 364 of CC as an example of apparent joinder of criminal offenses, which contains all the elements of the criminal offense of embezzlement – Article 207 of CC. However, in practice, only one criminal offense of embezzlement is considered to have been committed – Article 364, and not the other – Article 207 (Criminal Code, 2005). Differentiating between real and apparent joinder of criminal offenses is based on the fact that in the case of the first, there are several criminal offenses for which the defendant is being tried, while in the second case, only one criminal offense is considered to have been committed regardless of it containing the substance of another criminal offense. Apparent joinder of criminal offenses is manifested as apparent ideal and apparent real joinder. Even though there are opposing opinions in criminal theory that negate these forms of joinder, the majority of literature regarding criminal law contains this division (Stojanović, 2006, pp. 220–221).

3.    Apparent ideal joinder

Apparent ideal joinder exists when the perpetrator commits the substance of two or more criminal offenses with one criminal act, but they are all covered by one criminal offense that contains the substance of other criminal offenses. In order for apparent ideal joinder to exist, there must be a mutual connection of several various substances of criminal offenses. Considering that legal provisions do not determine the elements which would differentiate these types of joinder, it is necessary to rely on the situation in criminal theory and the opinions expressed in court practice (Lazin, 1982, pp. 8–16).1 In accordance with this, we can extract several forms of apparent ideal joinder expressed through relations: specialty, subsidiarity, consumption, and other.

• 3.1.    A case of specialty

• 3.2.    A case of subsidiarity

• 3.3.    A case of consumption

• 3.4.    A case of alternativity

  A case of alternativity exists when one action constitutes the substance of two criminal offenses that a perpetrator can be charged with. In this case, it is alternatively considered that only one criminal offense has taken place (Lazin, 1982, p. 96).³ Such is the case with, for example, two forms of the criminal offense aggravated/compound larceny – Article 204 of CC, where one is committed by a group (paragraph 2) and another in a particularly dangerous or brazen manner (paragraph 3). This practically means that the perpetrators can be criminally charged for both forms of compound larceny as the content of the criminal offense covers both situations relevant to their existence.

A case of specialty represents a special form of apparent ideal joinder, where the perpetrator commits two criminal offenses with one criminal act, one of which is a special form of other general criminal offense. In this case, only the special criminal offense is considered to exist, as it excludes the existence of the general criminal offense. It is perfectly in accordance with legal maxim expressed in the Latin phrase lex specialis derogat legi generali (special law excludes the general). The application of the specialty case means that one criminal offense contains the substances of two criminal offenses, and so the special criminal offense must contain all legal features of the general criminal offense and an additional feature that makes it special. In practice we see a large number of possibilities for the application of specialty case in relations of two criminal offenses.