Introduction
To develop an understanding of the Slovenian criminal law system, and the institution of state prosecutor within it, it is necessary to acquire a basic awareness of the history of Slovenia.
From the 14th century to the year 1918, the territory of Slovenia was a hereditary province of the Hapsburgs, the centre of whose empire was Vienna. The Hapsburgs temporarily lost control over Slovenia soon after the beginning of the 19th century, when the Slovenian lands came under the control of Napoleon. The French introduced the Napoleonic Code. After Napoleon’s defeat near Leipzig in October 1813, Austrian rule was reinstated. After the fall of the Austro-Hungarian Empire in 1918, a Kingdom of Serbs, Croats and Slovenes was formed (December 1, 1918). This state was renamed the Kingdom of Yugoslavia in 1929.
From 1873, the Austrian Code of Criminal Procedure (Strafprozessordnung) applied throughout the territory of present-day Slovenia. This regulation remained in force until 1929, when the Code of Judicial Criminal Procedure of the Kingdom of Yugoslavia came into force, under which criminal proceedings could only take place on the initiative of an authorised prosecutor. That year also saw the adoption of the State Prosecutor’s Office Act, under which the person responsible for public prosecution was called the state prosecutor.
After the Second World War a new Yugoslavia was formed and the socialist era began. In 1948, Yugoslavia severed contact and close ties with the Soviet Union. For the constituent republics, a process of decentralisation, self-management and independence was put into motion. Thus, on the basis of the new federal Constitution, Slovenia adopted its own Constitution in 1974, introduced a comprehensive system of self-management and acquired greater independence. On October 12, 1948 the first Criminal Procedure Act (CCP) was passed. The act was planned as an instrument for the liquidation of previous political and economic arrangements and conceived along the lines of Soviet criminal procedure law, which gave priority to safeguarding the new social arrangements. The CCP of 1953 brought significant changes. With this act the activities of the public prosecution service were directed exclusively towards to the presentation of public charges in criminal cases. The 1953 CCP underwent a number of changes up until 1977, when a new CCP was adopted. The main change was the reintroduction of the investigating judge, and the separation of criminal prosecution, for which the public prosecutor was responsible, and investigation. The public prosecution service became a prosecution body only, without the competence to conduct investigations. The public prosecutor was to play no part in detecting criminal offences, and was merely authorised to request the initiation of criminal judicial investigations, exclusive responsibility for which was in the hands of the investigating judge.
The 1990s saw a major political crisis taking place in Yugoslavia. It became clear that dissolution of the federal state was the best solution. The citizens of Slovenia endorsed this move at a plebiscite held in December 1990, and Slovenia became an independent state on June 25, 1991. The new Constitution of the Republic of Slovenia was formally adopted in December 1991.
The new state introduced another CCP in 1995. Further new acts relating to the judiciary were also adopted: the State Prosecutor’s Office Act (SPOA), the Courts Act and the Judicial Service Act. The new CCP retained a mixed accusatorial/inquisitorial type of criminal procedure.
The National Assembly of the Republic of Slovenia took a decision to commission the Faculty of Law at the University of Ljubljana to draw up a new CCP; this study was published in 2004. The new act as proposed would represent a further step towards accusatorial/adversarial proceedings. The prosecutor will become the real dominus litis of the pre-trial procedure and the police will increasingly become subordinated to him. The state prosecutor will remain a state official who exercises his own powers and, but also is a party to proceedings before courts. Investigating judges will be replaced by a judge, whose role is to ensure the legality of the procedure. This judge guarantor will have investigatory powers to approve investigatory operations and restrictive measures in pre-criminal proceedings. This judge would have a special role in the interim phase in relation to testing objections against the bill of indictment, excluding evidence and checking indictments. This would introduce a greater adversarial element into the trial stage and enable parties to play a more active role.