Abstract
Apparent joinder of criminal offenses is a legal institute which deviates from the actual or real joinder. It deals with legal situations where one or more criminal acts constitute the substance of several criminal offenses but, for legal and technical reasons, only one criminal offense is considered to have been committed. Following the division of a joinder into ideal and real, where one or several acts of criminal offenses have been taken as a criterion, the apparent joinder is also divided into ideal and real. This practically means that the offender had committed one criminal offense with one criminal act (an apparent ideal joinder) or several acts (an apparent real joinder), regardless whether his/her act or acts constitute the substance of several criminal offenses. Considering the fact that a legal institution of apparent joinder includes an entire catalogue of various legal situations, our legislator stipulates several forms of the apparent ideal as well as the apparent real joinder. They contain modalities of actions constituting the substance of several various criminal offenses. In a criminal theory, the issue of the apparent ideal joinder has occupied the attention of a large number of authors. They have shown an interest in expanding the catalogue of legally defined forms of the apparent joinder of criminal offenses. As a consequence, we have a significantly higher number of forms of the apparent joinder in comparison with the legal framework being used to regulate this institution in our criminal legislature. Therefore, apart from a legal designation, it is necessary to indicate a theoretical designation of both the apparent ideal and apparent real joinders of criminal offenses.
Highlights
The original legal memorials do not recognize joinder of criminal offenses as an independent criminal and legal institution
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 independently regulated in the criminal legislature of Serbia
Summary
The original legal memorials do not recognize joinder of criminal offenses as an independent criminal and legal institution. 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. 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. There is an institution of real and apparent joinder of criminal offenses in national legislatures of a large number of countries. 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 be proven (Jovašević, 2012, p. 94)
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