Summary
The paper delves into the special rules pertaining to criminal liability of accomplices from the aspect of the culpability principle. The theory of (limited) accessoriness of complicity, by and large accepted today, does not, per se, lead towards departures from the principle of culpability. Namely, the very notion of complicity implies that an unlawful act foreseen by law as a criminal offence has been committed. Whether or not the accomplices shall be held criminally liable for their contribution to such an act shall depend upon their culpability. It defines the limits of their liability. The rule prescribing that participants’ culpability is nontransferable, in case of limited accessoriness, upholds its individuality and autonomy. Only the culpable participant may be held liable and only for a criminal offence covered by culpability. Limited accessoriness enables the accomplices who committed an act of complicity with intent (in cases of co-perpetration and commission out of negligence) in an act committed by the perpetrator who accomplished the objective elements of a criminal offence, without necessarily having committed a culpable act himself, to be held liable as well. Boundaries of limited accessoriness in Serbian criminal law are quite broader than those in the criminal justice systems where intent is not covered by the notion of culpability but rather exists as a subjective characteristic of the criminal offence. For that reason there is no need to consider an accomplice (inciter) who, with intent, incited the perpetrator to accomplish the objective elements of a criminal offence while acting without culpability, to be an (indirect) perpetrator.
By analyzing provisions on special rules regulating criminal liability of accomplices in the Criminal Code of the Republic of Serbia and the Criminal Code of the Republic of Srpska, the author arrives at the conclusion that they are consistent with the principle of culpability. It is not always the case, though, in some foreign legislations, where the issue even infringes upon the sphere of objective liability, i.e., liability without culpability. Thus, the paper points to unacceptability of the solution adopted by the Italian criminal law (Art. 116) according to which, for the liability of an accomplice it is sufficient to prove that criminal offence comes as a consequence of his act or omission although it was not part of his intent.
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