State Prosecution Service and the Ministry of Justice
Chapter II
State Prosecution Service and the Ministry of Justice
Organisation of the various State Prosecutor’s Offices
Individual state prosecutors, as officials of the state, are responsible for carrying out functions relating to criminal prosecution. The State Prosecutor’s Office is an institution within which state prosecutors operate as individual officials of a certain rank. This is how a state prosecutor is defined in sect. 135 Constitution, which states that a state prosecutor files and presents criminal charges and has other powers provided by law. The organisation of the State Prosecutor’s Office and its general powers are regulated by the State Prosecutor’s Office Act, which entered into force in October 1994 and has since been amended twice (in 1999 and 2003).
Only two types of institution exist to which state prosecutors are assigned: the Supreme State Prosecutor’s Office and the eleven district state prosecutor’s offices located in larger towns.
A special organisational unit, the Group of state prosecutors for special affairs, has been established within the Supreme State Prosecutor’s Office; it operates throughout the country and is responsible for prosecuting organised crime. The organisation and work of the group are subject to the provisions of the State Prosecutor’s Office Act applying to district state prosecutor’s offices, since the group operates as a criminal prosecution body of first instance. A state prosecutor carries out his functions at the state prosecutor’s office to which he has been appointed or allocated (sect. 4 SPOA), or assigned (sects. 34 to 38b SPOA).
The State Prosecutor’s Office stands at the top of the organisation of state prosecution. The latter is not explicitly hierarchically organised; this is due to the abolition of higher state prosecutor’s offices as organisational units, to the granting of independence to state prosecutors, and to the fact that the state prosecutor’s offices are not responsible for carrying out functions but the state prosecutors individually as state officials.
The Supreme State Prosecutor’s Office, which is headed by the State Prosecutor General, is organised into departments, both within the main office and outside it. The following departments are located at the main office: the criminal department, the civil and administrative affairs departments, the appeals department and the supervisory department. External departments are generally organised in towns in which the main offices of high courts are located; this means that state prosecutors assigned to these departments carry out their functions before higher courts in appeals proceedings.
The Supreme State Prosecutor’s Office contains a legal information centre (responsible for development, uniformity and operations of IT support for state prosecutor’s offices) and an expert centre, which provides state prosecutors with expert assistance in the areas of tax, finance and accounting.
Supreme state prosecutors and higher state prosecutors carry out their functions at the Supreme State Prosecutor’s Office; the latter largely exercise their legal powers before the Supreme Court and higher courts, although they may also do so before lower courts. District state prosecutors may also be assigned to work at the Supreme State Prosecutor’s Office in order to carry out more complex specialist tasks.
The Supreme State Prosecutor’s Office carries out court-based tasks, supervisory tasks, education and training activities, and other functions at the head office as well as in external departments.
Eleven district state prosecutor’s offices have been set up in larger towns to perform first-instance tasks. It is chiefly district state prosecutors and some higher state prosecutors that are assigned to district state prosecutor’s offices, although the law allows the State Prosecutor General to assign supreme state prosecutors to work at such offices occasionally. The operational territories of district state prosecutor’s offices are the same as the operational territories covered by the district courts. State prosecutors from these district state prosecutor’s offices also appear before local courts in their area.
District state prosecutor’s offices have external departments as organisational units, which perform the functions of district state prosecutor’s offices before one or more local courts.
The subject matter jurisdiction of criminal courts, which are courts of the first instance, is held by local and district courts. In addition to their other competences, local courts try at first instance criminal offences that carry a fine or a prison sentence of up to three years, except in cases involving criminal offences against good name and reputation committed in the press, on radio, on television or through public information media. District courts try at first instance criminal offences for which local courts do not have jurisdiction, to wit criminal offences that carry a prison sentence of over three years, and criminal offences against good name and reputation committed in the press, on radio, on television or through public information media (sect. 99 Courts Act).
At district state prosecutor’s offices with a large volume of cases of the same type, departments may be formed as internal organisational units charged with carrying out specialist tasks, and with improving the efficiency of operation of the state prosecutor’s office in an individual, more narrowly focused area of responsibility (sect. 55 SPOA).
There are no military courts or military prosecutors.
State prosecutor’s ranks
State prosecutors are organised into three ranks: district state prosecutors, higher state prosecutors and supreme state prosecutors. All of them are assigned to, and administratively organised within, the organisational forms listed above. The locally empowered state prosecutor is bound by the provisions applying to the jurisdiction of the court in the area to which the prosecutor has been appointed or assigned (sect. 47 CCP). State prosecutors that hold the post of at least district state prosecutor may appear before local and district courts (as may higher and Supreme state prosecutors). State prosecutors that hold the post of at least higher state prosecutor may appear before higher courts (as can supreme state prosecutors). Only Supreme state prosecutors may appear before the Supreme Court.
The post of a state prosecutor is permanent.
Any person that meets the general conditions that apply to all state prosecutorial ranks, as well as special conditions, can be appointed to the post of state prosecutor. The general conditions are that: he is a national citizen and is fluent in the Slovenian language; he has contractual capacity and is in good general health; he is at least 30 years of age; he has acquired the national title of university graduate of law or has obtained a degree from a law faculty abroad that has been approved as being valid in Slovenia; he has passed the state law examination; and he is personally suited to carry out prosecutorial functions.
Any person that meets these general conditions, and has at least six years’ work experience as a legal professional after passing the state law examination or has performed the function of assistant state prosecutor for at least three years, can be appointed to the post of district state prosecutor.
Any person that meets the conditions applying to the post of district state prosecutor, and has performed the functions of district state prosecutor for at least five years, can be appointed to the post of higher state prosecutor.
Any person that meets the conditions applying to the post of district state prosecutor, and has successfully performed the functions of higher state prosecutor for at least five years or the functions of district state prosecutor for at least ten years, can be appointed to the post of supreme state prosecutor.
Any person that meets the conditions for election to the post of higher or Supreme Court judge may be appointed to post of higher or supreme state prosecutor.
State prosecutors have assistants. Any person that meets the conditions for election to the post of local court judge may be appointed to the post of assistant state prosecutor. They must meet the same general conditions as apply to appointment to the post of district state prosecutor; the special conditions are less demanding, with any person having three years’ work experience as a legal professional after passing the state law examination being eligible for appointment to the post of assistant. Assistants are assigned to one or more district, higher or supreme state prosecutors. A state prosecutor can empower an assistant to carry out certain tasks or procedural acts in criminal proceedings (this may take the form of a general authorisation or an authorisation for each case separately). A state prosecutor is responsible for the work of his assistant (SPOA, sect. 4 Rules for State Prosecution).
Any state prosecutor meeting the conditions applying to the post of supreme state prosecutor can be appointed to the post of State Prosecutor General (sect. 56 SPOA).
District state prosecutors, higher state prosecutors and supreme state prosecutors are appointed by the Government on the recommendation of the Minister of Justice; the State Prosecutor General is elected by parliament on the recommendation of the Government. The term of office of the State Prosecutor General is six years.
Procedures and the responsibilities of individual bodies in relation to appointment and election are precisely laid down in law. Responsibilities are divided between the Minister of Justice, the State Prosecutor General, and the head of the District State Prosecutor’s Office, the Government, the National Assembly and the State Prosecution Council.
The State Prosecution Council
The State Prosecution Council is an important body within the state prosecution system, charged with selecting candidates for the post of state prosecutor and for other posts within the state prosecution service. The procedures are conducted by the Ministry of Justice, with the State Prosecution Council giving its opinion on the candidates. In certain cases, the opinions and classification provided by the State Prosecution Council are binding; for example, if the State Prosecution Council, in order to fill a state prosecutor’s post, places a candidate highest on the list who has already been appointed to the post of state prosecutor and has applied for reasons of promotion, the Minister of Justice is obliged to put this candidate forward for appointment. When the Minister of Justice does not accept the opinion of the State Prosecution Council with regard to a certain candidate, and requests that the State Prosecution Council study its opinion again, the Minister of Justice is bound to accept a new opinion adopted by the State Prosecution Council with a two-thirds majority of members’ votes.
The State Prosecution Council has seven members. The State Prosecutor General and his deputy are members of the council by virtue of their position. One member is appointed by the Minister of Justice from among the heads of district state prosecutor’s offices, four members are elected by state prosecutors from among state prosecutors that do not have managerial functions (two from among district state prosecutors, one from among higher state prosecutors and one from among supreme state prosecutors).
The State Prosecution Council has further powers: it decides on the promotion of state prosecutors, on the incompatibility of functions, on assigning a state prosecutor to the Group of State Prosecutors for Special Affairs, on education and training, and so forth.
State prosecutors
There is a range of rights and duties associated with the post of state prosecutor. The safeguarding of the reputation and dignity of the post of state prosecutor, the safeguarding of confidential information, a ban on receiving gifts and other favours, the incompatibility of certain activities with the office of a state prosecutor, and the duty to work on cases without undue delay are the most important aspects of the work of a state prosecutor. The basic rights of a state prosecutor include a salary, salary supplements and other receipts, which are the same as for judges, disability, pension and social insurance, which are the same as for other employed on the active list, annual leave of between thirty and forty days, the right to additional training and grants, the right to promotion, and the right to have the post held for him if he is selected as a National Assembly deputy, a Constitutional Court judge, president or prime minister, minister, ombudsman or ombudsman’s deputy.
The principle of disciplinary liability applies to state prosecutors, although he has no disciplinary liability for opinions given by him in the course of his work in a specific case. He may be liable to disciplinary action for: a violation of discipline of a more or less serious nature; violation of the reputation and dignity of the post; non-conscientious, tardy or negligent performance of his official duties; failure to fulfil his official duties; unjustified refusal to perform official duties or failure to follow instructions given in accordance with the provisions of the law; violation of regulations on the safeguarding of national and official secrets; a more serious violation of regulations on health and safety at work, and on protection from fire or explosions; undignified and offensive conduct towards individuals, state bodies or legal persons in connection with performance of the functions of state prosecutor and outside them; an abuse of position or a more serious violation of official powers. Disciplinary proceedings may be proposed by the State Prosecutor General or the Minister of Justice; violations are decided by a disciplinary court, which may pass punishment of dismissal from the post of state prosecutor, a halt to promotion and a reduction in salary.
As part of the judiciary, state prosecutor’s offices are independent state bodies (sect. 5 SPOA), and state prosecutors perform their tasks pursuant to the Constitution and the law (sect. 1 SPOA). These two provisions, along with several others to be mentioned below, ensure that each state prosecutor, as a state official, performs his function independently, and that a state prosecutor cannot be given instructions or orders for his work in a specific criminal case.
General instructions on the conduct of state prosecutors relating to uniform application of the law at state prosecutor’s offices, and to ensuring uniformity of prosecution policy are permitted (sect. 64 SPOA); such instructions are issued by the State Prosecutor General. The head of a district state prosecutor’s office can issue general instructions in matters within its sphere of competence. General instructions must be issued in written form.
The independence of a state prosecutor is safeguarded by the institute of evocation (sects. 65 and 66 SPOA). If a state prosecutor does not agree with the general instructions, he can refuse to work on a specific case; the case can then be assigned to another prosecutor or taken over by a superior or higher state prosecutor. He must issue an order in written form and send one copy of it to the State Prosecutor General.
It can be concluded from the above that the State Prosecutor General sets prosecution policy. He can formulate prosecution policy by means of general binding instructions regarding the application of laws. These instructions relate to several legal institutions and legal possibilities that the state prosecutor can apply in a number of different ways when dealing with specific cases. General instructions that formulate prosecution policy relate to the application of the institutions of petty offence, suspended prosecution, settlement and punitive order. He issues general instructions for other policies such as policy relating to filing charges; sentencing policy, where a state prosecutor can exert an influence by proposing penalties or criminal sanctions; and appeals policy (for example, instructions to the effect that in certain types of criminal offence, prosecutors should propose a fine in place of a conditional sentence). In doing so the State Prosecutor General does not violate the principle of legality of application of these institutions but prescribes methods for dealing with cases and the criteria for application of individual institutions in order to ensure that the criminal law system works properly and citizens are equal before the law. It is not possible to adopt general instructions that contravene the law.
Another, less binding, method for the uniform application of laws is possible through principled legal positions adopted at the national level by the collegiums of the Supreme State Prosecutor’s Office.
The independence of a state prosecutor does not mean the absence of liability in how he performs his tasks and how much work he performs. A system has therefore been set up to supervise the work of state prosecutor’s offices and state prosecutors. Three types of supervision can be distinguished: administrative supervision, judicial supervision and professional supervision. The State Prosecutor General is responsible for the administrative operations of state prosecutor’s offices; he performs administrative supervision. Judicial administrative operations are supervised by the Minister of Justice. Professional supervision of the work of state prosecutors is carried out by the Supreme State Prosecutor’s Office.
Professional supervision is carried out on the basis of an examination of files that the Supreme State Prosecutor’s Office requests from state prosecutors, and of an examination of records and other documents; other appropriate methods can also be deployed. Three types of examination are carried out: a general supervisory examination, a partial examination and an examination of individual cases. The examination procedure is prescribed. A general supervisory examination must be performed every three years for every state prosecutor’s office. Partial supervisory examinations are carried out be¬fore every instance of promotion of a state prosecutor. Partial examinations and examinations of individual cases are also carried out when the State Prosecutor General so decides; a special procedure is prescribed for this. Reports on general supervisory examinations are sent to the State Prosecutor General and to the Minister of Justice.
The State Prosecutor’s Office and the Ministry of Justice
The provision of sect. 5 State Prosecutor’s Office Act should put an end to discussions to which branch of power the State Prosecutor’s Office belongs. The provision makes clear that the State Prosecutor’s Office is not part of the judiciary but part of the judicial system in the wider sense. This does not mean that it belongs exclusively to the judicial branch of power, although it is closely linked to it, and state prosecutors have a position similar to that of judges. Although judges are guaranteed so-called internal and external independence, the same cannot strictly be said for state prosecutors. There is an increasing tendency to build elements that could lead to state prosecutors’ greater internal and external dependence on the executive branch of power into legislation. The State Prosecutor’s Office has been defined as a sui generis body within the framework of the Ministry of Justice, as have individual state prosecutors. The Ministry has influence on the work of state prosecutor’s offices and state prosecutors through the administrative tasks it performs. It does not, and cannot, have an influence on decision-making in specific criminal cases. In this sense, the external independence of state prosecutors is guaranteed. The internal independence of state prosecutors is guaranteed on the basis of legal provisions that forbid higher or superior prosecutors from issuing instructions in specific cases. The possibility of transferring territorial jurisdiction for dealing with a certain case to another prosecutor’s office was introduced in the most recent version of the State Prosecutor’s Office Act. This also applies to the expanded possibility for assigning or temporarily transferring state prosecutors to another state prosecutor’s office, and to the Group of State Prosecutor for Special Affairs.
The Ministry of Justice has neither a direct nor an indirect influence on the operations and activities of state prosecutor’s offices. The Minister of Justice has powers in a number of different areas, in issuing implementing regulations, in the organisation of the state prosecution service, in recruitment, and in supervision of the work of state prosecutor’s offices.
The minister prescribes the most important implementing act for prosecutors, the Rules for State Prosecution, and also issues binding instructions and interpretations for the application of this act. The minister also determines, by means of implementing regulations, the method and forms of judicial supervision carried out by the Ministry of Justice of the work of state prosecutor’s offices. He decides on how state prosecution records, registers and other documents of state prosecutor’s offices can be inspected. He also gives his approval to the Instructions for the Organisation of the Group of Special Prosecutors for Special Affairs.
In the area of organisation, the minister has the power to establish and abolish external departments of district state prosecutor’s offices and external departments of the Supreme State Prosecutor’s Office. He also has responsibility, in agreement with the Government, for determining the number of state prosecutor posts in individual state prosecutor’s offices, and puts forward recommendations to the government regarding the number of prosecutorial staff and trainees, and determines the required number of prosecutorial posts in the Group of State Prosecutors for Special Affairs.
In the area of recruitment, the Ministry of Justice conducts tender procedures to fill vacant posts for state prosecutors, heads of state prosecutor’s offices and the State Prosecutor General. The Minister of Justice puts forwards recommendations to the Government regarding the appointment of state prosecutors and heads of state prosecutor’s offices, and gives its consent to the assigning of a state prosecutor to an international prosecutorial body and to the appointment of heads of external departments of the Supreme State Prosecutor’s Office; he also recommends the dismissal of state prosecutors when the legally determined conditions for dismissal are in place. The minister appoints the deputy head of the State Prosecutor’s Office, decides on the assigning of a state prosecutor to the Ministry of Justice, and appoints one member of the State Prosecution Council. The Minister of Justice has the right to request that disciplinary proceedings be instituted against a state prosecutor and to recommend the suspension of the State Prosecutor General.
The provision of information to the Minister of Justice is also laid down as a condition for the fulfilment of some tasks, for example when the State Prosecution Council deals with the issue of incompatibility of the state prosecutor’s function with other activities and functions, the State Prosecutor General informs the Minister of Justice of the decision taken, since the Minister of Justice also proposes the dismissal of state prosecutors when the legally specified conditions exist (sect. 27 SPOA). The Minister of Justice can, in connection with the execution of his competences, request that state prosecutor’s offices inform him of cases with which they are dealing (sect. 61 SPOA). State prosecutor’s offices send annual reports on work to higher state prosecutor’s offices, and simultaneously to the Minister of Justice. The Supreme State Prosecutor’s Office sends the joint annual report to the Minister of Justice. The State Prosecutor General informs the National Assembly of the work of state prosecutor’s offices in an annual report. The State Prosecutor General likewise sends reports on general supervisory inspections carried out by the Supreme State Prosecutor’s Office to the Ministry of Justice (sect. 67 SPOA).
The Ministry of Justice is responsible for judicial administrative affairs within the area of competence of the State Prosecutor’s Office. Judicial administrative affairs include, in particular, the drafting of laws and other regulations relating to the organisation and operation of state prosecutor’s offices and the position, rights and obligations of state prosecutors, assistants and prosecutorial staff, training and specialist training, the provision of staff, material conditions and premises, the hearing of supervisory appeals, the collection of statistical and other data on the operations of state prosecutors, supervision of the performance of state prosecution administration, and the performance of other tasks when the law so determines. Judicial supervision can not violate the legality and professional correctness of the work of state prosecutors in relation to pre-trial procedures, judicial proceedings or administrative proceedings before other state bodies. It is worth pointing out here that the state prosecution service is an independent budget user. The budget for the state prosecution service is formulated on the basis of financial plans submitted to the Ministry of Finance. The approved funds are then used in accordance with the regulations in force.
In view of the role of the Minister and Ministry of Justice outlined above, it can be concluded that each state prosecutor as the holder of office in his own right, and the head of the State Prosecutor’s Office, who also has primarily administrative supervisory responsibilities, have most responsibility in the Slovenian legal system for ensuring prompt and professional performance. Professional responsibility means that if a state prosecutor receives two negative assessments of his work, the conditions are established for his dismissal from the post. The disciplinary liability of individual state prosecutors is also established. The State Prosecutor General has no disciplinary liability, since his liability as the highest official in the state prosecution service is also political – he can be called to answer politically for the operations of the state prosecution service to the National Assembly.
Powers of a state prosecutor in criminal proceedings
Criminal proceedings are instituted at the request of the prosecutor authorised. If there is no request from the prosecutor, criminal proceedings can not commence; if they have already commenced, they must be halted when the prosecutor withdraws the request for prosecution (sects. 180, 277, 293, 352 and 357 CCP). Criminal proceedings can only take place in relation to the request to which the prosecution relates, and against the person referred to in the request (sect. 354 CCP). This accusatorial principle is enforced in criminal proceedings and is also reflected in the strict separation of the three procedural functions – charge, defence and adjudication. One element of this principle in the system is the adversarial principle, which means that parties to proceedings are active, and have every possibility of responding to the position of the opposing party. The adversarial principle is not consistently followed since the taking of evidence is not dependent solely on the disposition of parties, as courts also take evidence ex officio.
An authorised prosecutor is a state prosecutor or private prosecutor. The state prosecutor commences and carries out criminal prosecution for criminal offences prosecuted ex officio. The legal regulation of criminal prosecution relates to the substantive-law division of criminal offences into those prosecuted ex officio, those prosecuted ex officio but at the proposal of an injured party, and private actions. At the initiative of the state prosecutor, all criminal offences prosecuted ex officio, as well as criminal offences for which the PC states that the injured party must file a proposal for prosecution are prosecuted. After the injured party has filed the proposal, the state prosecutor continues, or prosecutes these offences ex officio. Any withdrawal of the proposal results in the halting of criminal proceedings because the legal conditions for prosecution are no longer in place. Criminal law stipulates which offences are prosecuted on the basis of a private action; a private prosecutor is competent to act in the case of such criminal offences.
The legality of criminal prosecution is laid down in the legal system, but there are a number of legal institutions whose use constitutes an exception to this principle. The state prosecutor is obliged to commence criminal prosecution if there is a well-founded suspicion that a crime has been committed for which the perpetrator is prosecuted ex officio (sect. 20 CCP). The prosecutor has not only the right, but also the duty, to commence and pursue criminal prosecution until factual and legal conditions have been fulfilled. However, this principle of legality is not enforced absolutely. There is a wide range of legal powers that release a state prosecutor from the obligation to pursue criminal prosecution. These are divided into legal and substantive reasons, as exceptions from the principle of legality. A legal condition for prosecution is, for example, the existence of circumstances that bear the hallmarks of a criminal offence, and the existence of procedural conditions that oblige a state prosecutor to pursue criminal prosecution. A substantive condition is, for example, whether there is enough evidence in the case in question for the well-founded suspicion that a criminal offence has been committed. The fact that a state prosecutor is bound to the principle of legality does not exclude his right to make a free assessment. His obligation to act according to the principle of legality is adduced only if the state of facts (the evidence gathered) is such that there are grounds for concluding, on the basis of this, that a criminal offence has been committed. For a state prosecutor the principle of legality also means that prosecution is not commenced or is withdrawn if the conditions for prosecution have not been met.
Exceptions to the legality principle
Legal reasons for the withdrawal of a criminal prosecution or for a state prosecutor not to commence criminal prosecution are:
- if the offence is not an offence that is prosecuted ex officio (first paragraph of sect. 161 CCP);
- if there are circumstances that debar criminal prosecution in cases where the offence is covered by an amnesty or pardon, or because criminal prosecution is statute-barred (time expired) (first paragraph of sect. 161 CCP);
- if the required permission of a state body is not obtained because of immunity of the defendant or the perpetrator against whom criminal proceedings have been commenced or completed abroad (sect. 141 CCP; see also sects. 83, 100, 134 and 167 Constitution);
- if no proposal has been filed by the injured party for a criminal offence for which such a proposal is required (sect. 136 CCP);
- if extradition to a foreign country is involved (sects. 529 and 530 CCP).
Substantive reasons are that, in the assessment of the state prosecutor:
- There is not well-founded suspicion for believing that a criminal offence has been committed (first paragraph of sect. 161 CCP);
- circumstances have been adduced that exclude unlawfulness (sects. 11 to 13 PC);
- circumstances have been adduced that exclude criminal responsibility;
- criminal prosecution of a juvenile is not expedient;
- criminal offence of low significance (sect. 14 PC);
- it is expedient to refer the case to a settlement procedure (sects. 161a and 434a CCP);
- it is expedient to suspend criminal prosecution conditionally (sect. 162 CCP);
- it is not appropriate to commence prosecution or it is appropriate to withdraw prosecution for criminal offences where the court may or must remit the sentence, or for criminal offences for which a fine or a prison sentence of up to one year is prescribed and the suspect or defendant because of real regret prevent the damaging effects or settle damages;
- it is expedient to assign prosecution to a foreign country.
Functions of the state prosecutor
The basic procedural functions of a state prosecutor are laid down by the CCP and the SPOA. The SPOA lays down that a state prosecutor, apart from his basic functions of filing and presenting criminal charges, is responsible for performing all procedural acts of an authorised prosecutor, attending hearings and sessions in accordance with the CCP, and taking steps, when necessary, to detect perpetrators of criminal offences. The first paragraph of sect. 45 CCP lays down that the main right and main duty of a state prosecutor is to prosecute perpetrators of criminal offences.
As a state official, a prosecutor performs the following basic procedural functions in relation to the criminal prosecution of crimes that are prosecuted ex officio:
- studies the criminal complaint;
- takes steps, where necessary, to detect criminal offences, traces the perpetrators and directs the pre-trial procedure;
- requests and directs investigation;
- bears the burden of proof and ensures that the factual situation is correctly established;
- files and presents an indictment or proposal of indictment before the competent court;
- files appeals against a non-final legal decision and extraordinary legal remedy against a final legal ruling; and
- performs other acts determined by law.
When he studies the criminal complaint the state prosecutor adopts a decision on whether to reject the criminal complaint or pursue prosecution of a criminal offence before the courts. He can also opt for one of the alternative methods of out-of-court resolution (settlement or suspended prosecution).
Alternatives to prosecution
The CCP (sects. 161a and 463a) determines the legal conditions for referring a criminal charge to settlement. A state prosecutor can refer to settlement procedure an indictment or proposal of indictment for a criminal offence for which a fine or a prison sentence of up to three years is prescribed and, under special circumstances, for the criminal offences of aggravated bodily harm (sect. 134 PC), grievous bodily harm (sect. 135 PC), grand larceny (sect. 212 PC), embezzlement (sect. 215 PC), and malicious mischief (sect. 224 PC), and, if the charge is filed against a juvenile, for other criminal offences for which a prison sentence of up to five years is prescribed by the PC. Settlement is conducted by a person specifically charged with carrying out such a task, who is obliged to take a case to settlement. Settlement can only be carried out with the agreement of the suspect and the injured party. The person conducting the settlement procedure is independent in his work and must make every effort to secure an agreement, and any agreement reached must correspond with the gravity and consequences of the crime. If the contents of the agreement relate to the performance of community service, implementation of the agreement is prepared and conducted by social work centres in cooperation with the person who conducted the settlement procedure, and with the state prosecutor. When he receives notification that the terms of the agreement have been fulfilled, the state prosecutor dismisses the criminal charge. The general instructions issued by the State Prosecutor General define conditions and circumstances in relation to which offences and what circumstances permit a case to be referred to a settlement procedure in detail. The State Prosecutor’s Office of the Republic of Slovenia carries out all other activities connected with the procedure of referring a criminal complaint to a settlement procedure, the organisation of the work of persons conducting settlement procedures, supervision of their operations, and the training of persons conducting settlement procedures.
As another possibility for the alternative resolution of criminal cases, a state prosecutor can assume a judicial function. A state prosecutor can, with the consent of the injured party, suspend criminal prosecution for a criminal offence for which a fine or a prison sentence of up to three years is prescribed. Under special circumstances it is also permissible to suspend criminal prosecution for the criminal offences of rendering an opportunity for the consumption of narcotic drugs (sect. 197 PC), grand larceny (sect. 212 PC), embezzlement (sect. 215 PC), extortion and blackmail (sect. 218 PC), malicious mischief (sect. 244 PC), business fraud (sect. 234a PC), misappropriation (sect. 245 PC) and the presentation of bad cheques and the abuse of bank or credit cards (sect. 253 PC), and, if the charge is filed against a juvenile, for other criminal offences for which a prison sentence of up to five years is prescribed by the PC.
Criminal prosecution may be suspended if the suspect is prepared to act according to the instructions of the state prosecutor, and to carry out the task set to reduce or rectify the damaging effects of the criminal offence in question. Such tasks may include:
- rectification or settlement of the damage caused;
- payment of a specified contribution to a public institution, a charity or a fund for the reimbursement of damages to victims of criminal offences;
- the performance of community service; and
- the settlement of maintenance obligations.
If the state prosecutor sets a task of rectifying the damage or community service, implementation of the agreement is prepared and conducted by social work centres in cooperation with the state prosecutor. If the suspect performs the specified task by a deadline determined by the state prosecutor (which may not be less than six months, or longer than one year for the task of settling maintenance obligations), the state prosecutor dismisses the criminal charge. The State Prosecutor General has issued general instructions that regulate and define in detail the special circumstances that play a part in a state prosecutor’s decision to suspend criminal prosecution.
A state prosecutor can, after careful consideration, reject a criminal charge for reasons laid down in law (sect. 161 CCP) already presented here. A criminal charge can also be dismissed if it relates to an offence that bears the hallmarks of a criminal offence, if the state prosecutor believes it to be a petty offence or an offence of low significance. An offence that otherwise bears the hallmarks of a criminal offence as determined by law is not punishable if it is a petty offence. An offence is a petty one when the level of danger involved is insignificant due to the nature or gravity of the offence, because the damaging consequences of the offence are slight or non-existent, on account of the circumstances in which it was committed, because of the low level of the perpetrator’s criminal liability or owing to his personal circumstances (Sect. 14 PC). In practice, state prosecutor’s offices apply the institute of petty offence fairly frequently; in theory, its use opens up a number of questions. To date, the prevalent position has been that the institute of petty offence does not constitute a deviation from the principle of legality, since the law lays down precisely the conditions and criteria for assessing whether an offence is petty in nature.
State Prosecution Service and the Ministry of Justice
Organisation of the various State Prosecutor’s Offices
Individual state prosecutors, as officials of the state, are responsible for carrying out functions relating to criminal prosecution. The State Prosecutor’s Office is an institution within which state prosecutors operate as individual officials of a certain rank. This is how a state prosecutor is defined in sect. 135 Constitution, which states that a state prosecutor files and presents criminal charges and has other powers provided by law. The organisation of the State Prosecutor’s Office and its general powers are regulated by the State Prosecutor’s Office Act, which entered into force in October 1994 and has since been amended twice (in 1999 and 2003).
Only two types of institution exist to which state prosecutors are assigned: the Supreme State Prosecutor’s Office and the eleven district state prosecutor’s offices located in larger towns.
A special organisational unit, the Group of state prosecutors for special affairs, has been established within the Supreme State Prosecutor’s Office; it operates throughout the country and is responsible for prosecuting organised crime. The organisation and work of the group are subject to the provisions of the State Prosecutor’s Office Act applying to district state prosecutor’s offices, since the group operates as a criminal prosecution body of first instance. A state prosecutor carries out his functions at the state prosecutor’s office to which he has been appointed or allocated (sect. 4 SPOA), or assigned (sects. 34 to 38b SPOA).
The State Prosecutor’s Office stands at the top of the organisation of state prosecution. The latter is not explicitly hierarchically organised; this is due to the abolition of higher state prosecutor’s offices as organisational units, to the granting of independence to state prosecutors, and to the fact that the state prosecutor’s offices are not responsible for carrying out functions but the state prosecutors individually as state officials.
The Supreme State Prosecutor’s Office, which is headed by the State Prosecutor General, is organised into departments, both within the main office and outside it. The following departments are located at the main office: the criminal department, the civil and administrative affairs departments, the appeals department and the supervisory department. External departments are generally organised in towns in which the main offices of high courts are located; this means that state prosecutors assigned to these departments carry out their functions before higher courts in appeals proceedings.
The Supreme State Prosecutor’s Office contains a legal information centre (responsible for development, uniformity and operations of IT support for state prosecutor’s offices) and an expert centre, which provides state prosecutors with expert assistance in the areas of tax, finance and accounting.
Supreme state prosecutors and higher state prosecutors carry out their functions at the Supreme State Prosecutor’s Office; the latter largely exercise their legal powers before the Supreme Court and higher courts, although they may also do so before lower courts. District state prosecutors may also be assigned to work at the Supreme State Prosecutor’s Office in order to carry out more complex specialist tasks.
The Supreme State Prosecutor’s Office carries out court-based tasks, supervisory tasks, education and training activities, and other functions at the head office as well as in external departments.
Eleven district state prosecutor’s offices have been set up in larger towns to perform first-instance tasks. It is chiefly district state prosecutors and some higher state prosecutors that are assigned to district state prosecutor’s offices, although the law allows the State Prosecutor General to assign supreme state prosecutors to work at such offices occasionally. The operational territories of district state prosecutor’s offices are the same as the operational territories covered by the district courts. State prosecutors from these district state prosecutor’s offices also appear before local courts in their area.
District state prosecutor’s offices have external departments as organisational units, which perform the functions of district state prosecutor’s offices before one or more local courts.
The subject matter jurisdiction of criminal courts, which are courts of the first instance, is held by local and district courts. In addition to their other competences, local courts try at first instance criminal offences that carry a fine or a prison sentence of up to three years, except in cases involving criminal offences against good name and reputation committed in the press, on radio, on television or through public information media. District courts try at first instance criminal offences for which local courts do not have jurisdiction, to wit criminal offences that carry a prison sentence of over three years, and criminal offences against good name and reputation committed in the press, on radio, on television or through public information media (sect. 99 Courts Act).
At district state prosecutor’s offices with a large volume of cases of the same type, departments may be formed as internal organisational units charged with carrying out specialist tasks, and with improving the efficiency of operation of the state prosecutor’s office in an individual, more narrowly focused area of responsibility (sect. 55 SPOA).
There are no military courts or military prosecutors.
State prosecutor’s ranks
State prosecutors are organised into three ranks: district state prosecutors, higher state prosecutors and supreme state prosecutors. All of them are assigned to, and administratively organised within, the organisational forms listed above. The locally empowered state prosecutor is bound by the provisions applying to the jurisdiction of the court in the area to which the prosecutor has been appointed or assigned (sect. 47 CCP). State prosecutors that hold the post of at least district state prosecutor may appear before local and district courts (as may higher and Supreme state prosecutors). State prosecutors that hold the post of at least higher state prosecutor may appear before higher courts (as can supreme state prosecutors). Only Supreme state prosecutors may appear before the Supreme Court.
The post of a state prosecutor is permanent.
Any person that meets the general conditions that apply to all state prosecutorial ranks, as well as special conditions, can be appointed to the post of state prosecutor. The general conditions are that: he is a national citizen and is fluent in the Slovenian language; he has contractual capacity and is in good general health; he is at least 30 years of age; he has acquired the national title of university graduate of law or has obtained a degree from a law faculty abroad that has been approved as being valid in Slovenia; he has passed the state law examination; and he is personally suited to carry out prosecutorial functions.
Any person that meets these general conditions, and has at least six years’ work experience as a legal professional after passing the state law examination or has performed the function of assistant state prosecutor for at least three years, can be appointed to the post of district state prosecutor.
Any person that meets the conditions applying to the post of district state prosecutor, and has performed the functions of district state prosecutor for at least five years, can be appointed to the post of higher state prosecutor.
Any person that meets the conditions applying to the post of district state prosecutor, and has successfully performed the functions of higher state prosecutor for at least five years or the functions of district state prosecutor for at least ten years, can be appointed to the post of supreme state prosecutor.
Any person that meets the conditions for election to the post of higher or Supreme Court judge may be appointed to post of higher or supreme state prosecutor.
State prosecutors have assistants. Any person that meets the conditions for election to the post of local court judge may be appointed to the post of assistant state prosecutor. They must meet the same general conditions as apply to appointment to the post of district state prosecutor; the special conditions are less demanding, with any person having three years’ work experience as a legal professional after passing the state law examination being eligible for appointment to the post of assistant. Assistants are assigned to one or more district, higher or supreme state prosecutors. A state prosecutor can empower an assistant to carry out certain tasks or procedural acts in criminal proceedings (this may take the form of a general authorisation or an authorisation for each case separately). A state prosecutor is responsible for the work of his assistant (SPOA, sect. 4 Rules for State Prosecution).
Any state prosecutor meeting the conditions applying to the post of supreme state prosecutor can be appointed to the post of State Prosecutor General (sect. 56 SPOA).
District state prosecutors, higher state prosecutors and supreme state prosecutors are appointed by the Government on the recommendation of the Minister of Justice; the State Prosecutor General is elected by parliament on the recommendation of the Government. The term of office of the State Prosecutor General is six years.
Procedures and the responsibilities of individual bodies in relation to appointment and election are precisely laid down in law. Responsibilities are divided between the Minister of Justice, the State Prosecutor General, and the head of the District State Prosecutor’s Office, the Government, the National Assembly and the State Prosecution Council.
The State Prosecution Council
The State Prosecution Council is an important body within the state prosecution system, charged with selecting candidates for the post of state prosecutor and for other posts within the state prosecution service. The procedures are conducted by the Ministry of Justice, with the State Prosecution Council giving its opinion on the candidates. In certain cases, the opinions and classification provided by the State Prosecution Council are binding; for example, if the State Prosecution Council, in order to fill a state prosecutor’s post, places a candidate highest on the list who has already been appointed to the post of state prosecutor and has applied for reasons of promotion, the Minister of Justice is obliged to put this candidate forward for appointment. When the Minister of Justice does not accept the opinion of the State Prosecution Council with regard to a certain candidate, and requests that the State Prosecution Council study its opinion again, the Minister of Justice is bound to accept a new opinion adopted by the State Prosecution Council with a two-thirds majority of members’ votes.
The State Prosecution Council has seven members. The State Prosecutor General and his deputy are members of the council by virtue of their position. One member is appointed by the Minister of Justice from among the heads of district state prosecutor’s offices, four members are elected by state prosecutors from among state prosecutors that do not have managerial functions (two from among district state prosecutors, one from among higher state prosecutors and one from among supreme state prosecutors).
The State Prosecution Council has further powers: it decides on the promotion of state prosecutors, on the incompatibility of functions, on assigning a state prosecutor to the Group of State Prosecutors for Special Affairs, on education and training, and so forth.
State prosecutors
There is a range of rights and duties associated with the post of state prosecutor. The safeguarding of the reputation and dignity of the post of state prosecutor, the safeguarding of confidential information, a ban on receiving gifts and other favours, the incompatibility of certain activities with the office of a state prosecutor, and the duty to work on cases without undue delay are the most important aspects of the work of a state prosecutor. The basic rights of a state prosecutor include a salary, salary supplements and other receipts, which are the same as for judges, disability, pension and social insurance, which are the same as for other employed on the active list, annual leave of between thirty and forty days, the right to additional training and grants, the right to promotion, and the right to have the post held for him if he is selected as a National Assembly deputy, a Constitutional Court judge, president or prime minister, minister, ombudsman or ombudsman’s deputy.
The principle of disciplinary liability applies to state prosecutors, although he has no disciplinary liability for opinions given by him in the course of his work in a specific case. He may be liable to disciplinary action for: a violation of discipline of a more or less serious nature; violation of the reputation and dignity of the post; non-conscientious, tardy or negligent performance of his official duties; failure to fulfil his official duties; unjustified refusal to perform official duties or failure to follow instructions given in accordance with the provisions of the law; violation of regulations on the safeguarding of national and official secrets; a more serious violation of regulations on health and safety at work, and on protection from fire or explosions; undignified and offensive conduct towards individuals, state bodies or legal persons in connection with performance of the functions of state prosecutor and outside them; an abuse of position or a more serious violation of official powers. Disciplinary proceedings may be proposed by the State Prosecutor General or the Minister of Justice; violations are decided by a disciplinary court, which may pass punishment of dismissal from the post of state prosecutor, a halt to promotion and a reduction in salary.
As part of the judiciary, state prosecutor’s offices are independent state bodies (sect. 5 SPOA), and state prosecutors perform their tasks pursuant to the Constitution and the law (sect. 1 SPOA). These two provisions, along with several others to be mentioned below, ensure that each state prosecutor, as a state official, performs his function independently, and that a state prosecutor cannot be given instructions or orders for his work in a specific criminal case.
General instructions on the conduct of state prosecutors relating to uniform application of the law at state prosecutor’s offices, and to ensuring uniformity of prosecution policy are permitted (sect. 64 SPOA); such instructions are issued by the State Prosecutor General. The head of a district state prosecutor’s office can issue general instructions in matters within its sphere of competence. General instructions must be issued in written form.
The independence of a state prosecutor is safeguarded by the institute of evocation (sects. 65 and 66 SPOA). If a state prosecutor does not agree with the general instructions, he can refuse to work on a specific case; the case can then be assigned to another prosecutor or taken over by a superior or higher state prosecutor. He must issue an order in written form and send one copy of it to the State Prosecutor General.
It can be concluded from the above that the State Prosecutor General sets prosecution policy. He can formulate prosecution policy by means of general binding instructions regarding the application of laws. These instructions relate to several legal institutions and legal possibilities that the state prosecutor can apply in a number of different ways when dealing with specific cases. General instructions that formulate prosecution policy relate to the application of the institutions of petty offence, suspended prosecution, settlement and punitive order. He issues general instructions for other policies such as policy relating to filing charges; sentencing policy, where a state prosecutor can exert an influence by proposing penalties or criminal sanctions; and appeals policy (for example, instructions to the effect that in certain types of criminal offence, prosecutors should propose a fine in place of a conditional sentence). In doing so the State Prosecutor General does not violate the principle of legality of application of these institutions but prescribes methods for dealing with cases and the criteria for application of individual institutions in order to ensure that the criminal law system works properly and citizens are equal before the law. It is not possible to adopt general instructions that contravene the law.
Another, less binding, method for the uniform application of laws is possible through principled legal positions adopted at the national level by the collegiums of the Supreme State Prosecutor’s Office.
The independence of a state prosecutor does not mean the absence of liability in how he performs his tasks and how much work he performs. A system has therefore been set up to supervise the work of state prosecutor’s offices and state prosecutors. Three types of supervision can be distinguished: administrative supervision, judicial supervision and professional supervision. The State Prosecutor General is responsible for the administrative operations of state prosecutor’s offices; he performs administrative supervision. Judicial administrative operations are supervised by the Minister of Justice. Professional supervision of the work of state prosecutors is carried out by the Supreme State Prosecutor’s Office.
Professional supervision is carried out on the basis of an examination of files that the Supreme State Prosecutor’s Office requests from state prosecutors, and of an examination of records and other documents; other appropriate methods can also be deployed. Three types of examination are carried out: a general supervisory examination, a partial examination and an examination of individual cases. The examination procedure is prescribed. A general supervisory examination must be performed every three years for every state prosecutor’s office. Partial supervisory examinations are carried out be¬fore every instance of promotion of a state prosecutor. Partial examinations and examinations of individual cases are also carried out when the State Prosecutor General so decides; a special procedure is prescribed for this. Reports on general supervisory examinations are sent to the State Prosecutor General and to the Minister of Justice.
The State Prosecutor’s Office and the Ministry of Justice
The provision of sect. 5 State Prosecutor’s Office Act should put an end to discussions to which branch of power the State Prosecutor’s Office belongs. The provision makes clear that the State Prosecutor’s Office is not part of the judiciary but part of the judicial system in the wider sense. This does not mean that it belongs exclusively to the judicial branch of power, although it is closely linked to it, and state prosecutors have a position similar to that of judges. Although judges are guaranteed so-called internal and external independence, the same cannot strictly be said for state prosecutors. There is an increasing tendency to build elements that could lead to state prosecutors’ greater internal and external dependence on the executive branch of power into legislation. The State Prosecutor’s Office has been defined as a sui generis body within the framework of the Ministry of Justice, as have individual state prosecutors. The Ministry has influence on the work of state prosecutor’s offices and state prosecutors through the administrative tasks it performs. It does not, and cannot, have an influence on decision-making in specific criminal cases. In this sense, the external independence of state prosecutors is guaranteed. The internal independence of state prosecutors is guaranteed on the basis of legal provisions that forbid higher or superior prosecutors from issuing instructions in specific cases. The possibility of transferring territorial jurisdiction for dealing with a certain case to another prosecutor’s office was introduced in the most recent version of the State Prosecutor’s Office Act. This also applies to the expanded possibility for assigning or temporarily transferring state prosecutors to another state prosecutor’s office, and to the Group of State Prosecutor for Special Affairs.
The Ministry of Justice has neither a direct nor an indirect influence on the operations and activities of state prosecutor’s offices. The Minister of Justice has powers in a number of different areas, in issuing implementing regulations, in the organisation of the state prosecution service, in recruitment, and in supervision of the work of state prosecutor’s offices.
The minister prescribes the most important implementing act for prosecutors, the Rules for State Prosecution, and also issues binding instructions and interpretations for the application of this act. The minister also determines, by means of implementing regulations, the method and forms of judicial supervision carried out by the Ministry of Justice of the work of state prosecutor’s offices. He decides on how state prosecution records, registers and other documents of state prosecutor’s offices can be inspected. He also gives his approval to the Instructions for the Organisation of the Group of Special Prosecutors for Special Affairs.
In the area of organisation, the minister has the power to establish and abolish external departments of district state prosecutor’s offices and external departments of the Supreme State Prosecutor’s Office. He also has responsibility, in agreement with the Government, for determining the number of state prosecutor posts in individual state prosecutor’s offices, and puts forward recommendations to the government regarding the number of prosecutorial staff and trainees, and determines the required number of prosecutorial posts in the Group of State Prosecutors for Special Affairs.
In the area of recruitment, the Ministry of Justice conducts tender procedures to fill vacant posts for state prosecutors, heads of state prosecutor’s offices and the State Prosecutor General. The Minister of Justice puts forwards recommendations to the Government regarding the appointment of state prosecutors and heads of state prosecutor’s offices, and gives its consent to the assigning of a state prosecutor to an international prosecutorial body and to the appointment of heads of external departments of the Supreme State Prosecutor’s Office; he also recommends the dismissal of state prosecutors when the legally determined conditions for dismissal are in place. The minister appoints the deputy head of the State Prosecutor’s Office, decides on the assigning of a state prosecutor to the Ministry of Justice, and appoints one member of the State Prosecution Council. The Minister of Justice has the right to request that disciplinary proceedings be instituted against a state prosecutor and to recommend the suspension of the State Prosecutor General.
The provision of information to the Minister of Justice is also laid down as a condition for the fulfilment of some tasks, for example when the State Prosecution Council deals with the issue of incompatibility of the state prosecutor’s function with other activities and functions, the State Prosecutor General informs the Minister of Justice of the decision taken, since the Minister of Justice also proposes the dismissal of state prosecutors when the legally specified conditions exist (sect. 27 SPOA). The Minister of Justice can, in connection with the execution of his competences, request that state prosecutor’s offices inform him of cases with which they are dealing (sect. 61 SPOA). State prosecutor’s offices send annual reports on work to higher state prosecutor’s offices, and simultaneously to the Minister of Justice. The Supreme State Prosecutor’s Office sends the joint annual report to the Minister of Justice. The State Prosecutor General informs the National Assembly of the work of state prosecutor’s offices in an annual report. The State Prosecutor General likewise sends reports on general supervisory inspections carried out by the Supreme State Prosecutor’s Office to the Ministry of Justice (sect. 67 SPOA).
The Ministry of Justice is responsible for judicial administrative affairs within the area of competence of the State Prosecutor’s Office. Judicial administrative affairs include, in particular, the drafting of laws and other regulations relating to the organisation and operation of state prosecutor’s offices and the position, rights and obligations of state prosecutors, assistants and prosecutorial staff, training and specialist training, the provision of staff, material conditions and premises, the hearing of supervisory appeals, the collection of statistical and other data on the operations of state prosecutors, supervision of the performance of state prosecution administration, and the performance of other tasks when the law so determines. Judicial supervision can not violate the legality and professional correctness of the work of state prosecutors in relation to pre-trial procedures, judicial proceedings or administrative proceedings before other state bodies. It is worth pointing out here that the state prosecution service is an independent budget user. The budget for the state prosecution service is formulated on the basis of financial plans submitted to the Ministry of Finance. The approved funds are then used in accordance with the regulations in force.
In view of the role of the Minister and Ministry of Justice outlined above, it can be concluded that each state prosecutor as the holder of office in his own right, and the head of the State Prosecutor’s Office, who also has primarily administrative supervisory responsibilities, have most responsibility in the Slovenian legal system for ensuring prompt and professional performance. Professional responsibility means that if a state prosecutor receives two negative assessments of his work, the conditions are established for his dismissal from the post. The disciplinary liability of individual state prosecutors is also established. The State Prosecutor General has no disciplinary liability, since his liability as the highest official in the state prosecution service is also political – he can be called to answer politically for the operations of the state prosecution service to the National Assembly.
Powers of a state prosecutor in criminal proceedings
Criminal proceedings are instituted at the request of the prosecutor authorised. If there is no request from the prosecutor, criminal proceedings can not commence; if they have already commenced, they must be halted when the prosecutor withdraws the request for prosecution (sects. 180, 277, 293, 352 and 357 CCP). Criminal proceedings can only take place in relation to the request to which the prosecution relates, and against the person referred to in the request (sect. 354 CCP). This accusatorial principle is enforced in criminal proceedings and is also reflected in the strict separation of the three procedural functions – charge, defence and adjudication. One element of this principle in the system is the adversarial principle, which means that parties to proceedings are active, and have every possibility of responding to the position of the opposing party. The adversarial principle is not consistently followed since the taking of evidence is not dependent solely on the disposition of parties, as courts also take evidence ex officio.
An authorised prosecutor is a state prosecutor or private prosecutor. The state prosecutor commences and carries out criminal prosecution for criminal offences prosecuted ex officio. The legal regulation of criminal prosecution relates to the substantive-law division of criminal offences into those prosecuted ex officio, those prosecuted ex officio but at the proposal of an injured party, and private actions. At the initiative of the state prosecutor, all criminal offences prosecuted ex officio, as well as criminal offences for which the PC states that the injured party must file a proposal for prosecution are prosecuted. After the injured party has filed the proposal, the state prosecutor continues, or prosecutes these offences ex officio. Any withdrawal of the proposal results in the halting of criminal proceedings because the legal conditions for prosecution are no longer in place. Criminal law stipulates which offences are prosecuted on the basis of a private action; a private prosecutor is competent to act in the case of such criminal offences.
The legality of criminal prosecution is laid down in the legal system, but there are a number of legal institutions whose use constitutes an exception to this principle. The state prosecutor is obliged to commence criminal prosecution if there is a well-founded suspicion that a crime has been committed for which the perpetrator is prosecuted ex officio (sect. 20 CCP). The prosecutor has not only the right, but also the duty, to commence and pursue criminal prosecution until factual and legal conditions have been fulfilled. However, this principle of legality is not enforced absolutely. There is a wide range of legal powers that release a state prosecutor from the obligation to pursue criminal prosecution. These are divided into legal and substantive reasons, as exceptions from the principle of legality. A legal condition for prosecution is, for example, the existence of circumstances that bear the hallmarks of a criminal offence, and the existence of procedural conditions that oblige a state prosecutor to pursue criminal prosecution. A substantive condition is, for example, whether there is enough evidence in the case in question for the well-founded suspicion that a criminal offence has been committed. The fact that a state prosecutor is bound to the principle of legality does not exclude his right to make a free assessment. His obligation to act according to the principle of legality is adduced only if the state of facts (the evidence gathered) is such that there are grounds for concluding, on the basis of this, that a criminal offence has been committed. For a state prosecutor the principle of legality also means that prosecution is not commenced or is withdrawn if the conditions for prosecution have not been met.
Exceptions to the legality principle
Legal reasons for the withdrawal of a criminal prosecution or for a state prosecutor not to commence criminal prosecution are:
- if the offence is not an offence that is prosecuted ex officio (first paragraph of sect. 161 CCP);
- if there are circumstances that debar criminal prosecution in cases where the offence is covered by an amnesty or pardon, or because criminal prosecution is statute-barred (time expired) (first paragraph of sect. 161 CCP);
- if the required permission of a state body is not obtained because of immunity of the defendant or the perpetrator against whom criminal proceedings have been commenced or completed abroad (sect. 141 CCP; see also sects. 83, 100, 134 and 167 Constitution);
- if no proposal has been filed by the injured party for a criminal offence for which such a proposal is required (sect. 136 CCP);
- if extradition to a foreign country is involved (sects. 529 and 530 CCP).
Substantive reasons are that, in the assessment of the state prosecutor:
- There is not well-founded suspicion for believing that a criminal offence has been committed (first paragraph of sect. 161 CCP);
- circumstances have been adduced that exclude unlawfulness (sects. 11 to 13 PC);
- circumstances have been adduced that exclude criminal responsibility;
- criminal prosecution of a juvenile is not expedient;
- criminal offence of low significance (sect. 14 PC);
- it is expedient to refer the case to a settlement procedure (sects. 161a and 434a CCP);
- it is expedient to suspend criminal prosecution conditionally (sect. 162 CCP);
- it is not appropriate to commence prosecution or it is appropriate to withdraw prosecution for criminal offences where the court may or must remit the sentence, or for criminal offences for which a fine or a prison sentence of up to one year is prescribed and the suspect or defendant because of real regret prevent the damaging effects or settle damages;
- it is expedient to assign prosecution to a foreign country.
Functions of the state prosecutor
The basic procedural functions of a state prosecutor are laid down by the CCP and the SPOA. The SPOA lays down that a state prosecutor, apart from his basic functions of filing and presenting criminal charges, is responsible for performing all procedural acts of an authorised prosecutor, attending hearings and sessions in accordance with the CCP, and taking steps, when necessary, to detect perpetrators of criminal offences. The first paragraph of sect. 45 CCP lays down that the main right and main duty of a state prosecutor is to prosecute perpetrators of criminal offences.
As a state official, a prosecutor performs the following basic procedural functions in relation to the criminal prosecution of crimes that are prosecuted ex officio:
- studies the criminal complaint;
- takes steps, where necessary, to detect criminal offences, traces the perpetrators and directs the pre-trial procedure;
- requests and directs investigation;
- bears the burden of proof and ensures that the factual situation is correctly established;
- files and presents an indictment or proposal of indictment before the competent court;
- files appeals against a non-final legal decision and extraordinary legal remedy against a final legal ruling; and
- performs other acts determined by law.
When he studies the criminal complaint the state prosecutor adopts a decision on whether to reject the criminal complaint or pursue prosecution of a criminal offence before the courts. He can also opt for one of the alternative methods of out-of-court resolution (settlement or suspended prosecution).
Alternatives to prosecution
The CCP (sects. 161a and 463a) determines the legal conditions for referring a criminal charge to settlement. A state prosecutor can refer to settlement procedure an indictment or proposal of indictment for a criminal offence for which a fine or a prison sentence of up to three years is prescribed and, under special circumstances, for the criminal offences of aggravated bodily harm (sect. 134 PC), grievous bodily harm (sect. 135 PC), grand larceny (sect. 212 PC), embezzlement (sect. 215 PC), and malicious mischief (sect. 224 PC), and, if the charge is filed against a juvenile, for other criminal offences for which a prison sentence of up to five years is prescribed by the PC. Settlement is conducted by a person specifically charged with carrying out such a task, who is obliged to take a case to settlement. Settlement can only be carried out with the agreement of the suspect and the injured party. The person conducting the settlement procedure is independent in his work and must make every effort to secure an agreement, and any agreement reached must correspond with the gravity and consequences of the crime. If the contents of the agreement relate to the performance of community service, implementation of the agreement is prepared and conducted by social work centres in cooperation with the person who conducted the settlement procedure, and with the state prosecutor. When he receives notification that the terms of the agreement have been fulfilled, the state prosecutor dismisses the criminal charge. The general instructions issued by the State Prosecutor General define conditions and circumstances in relation to which offences and what circumstances permit a case to be referred to a settlement procedure in detail. The State Prosecutor’s Office of the Republic of Slovenia carries out all other activities connected with the procedure of referring a criminal complaint to a settlement procedure, the organisation of the work of persons conducting settlement procedures, supervision of their operations, and the training of persons conducting settlement procedures.
As another possibility for the alternative resolution of criminal cases, a state prosecutor can assume a judicial function. A state prosecutor can, with the consent of the injured party, suspend criminal prosecution for a criminal offence for which a fine or a prison sentence of up to three years is prescribed. Under special circumstances it is also permissible to suspend criminal prosecution for the criminal offences of rendering an opportunity for the consumption of narcotic drugs (sect. 197 PC), grand larceny (sect. 212 PC), embezzlement (sect. 215 PC), extortion and blackmail (sect. 218 PC), malicious mischief (sect. 244 PC), business fraud (sect. 234a PC), misappropriation (sect. 245 PC) and the presentation of bad cheques and the abuse of bank or credit cards (sect. 253 PC), and, if the charge is filed against a juvenile, for other criminal offences for which a prison sentence of up to five years is prescribed by the PC.
Criminal prosecution may be suspended if the suspect is prepared to act according to the instructions of the state prosecutor, and to carry out the task set to reduce or rectify the damaging effects of the criminal offence in question. Such tasks may include:
- rectification or settlement of the damage caused;
- payment of a specified contribution to a public institution, a charity or a fund for the reimbursement of damages to victims of criminal offences;
- the performance of community service; and
- the settlement of maintenance obligations.
If the state prosecutor sets a task of rectifying the damage or community service, implementation of the agreement is prepared and conducted by social work centres in cooperation with the state prosecutor. If the suspect performs the specified task by a deadline determined by the state prosecutor (which may not be less than six months, or longer than one year for the task of settling maintenance obligations), the state prosecutor dismisses the criminal charge. The State Prosecutor General has issued general instructions that regulate and define in detail the special circumstances that play a part in a state prosecutor’s decision to suspend criminal prosecution.
A state prosecutor can, after careful consideration, reject a criminal charge for reasons laid down in law (sect. 161 CCP) already presented here. A criminal charge can also be dismissed if it relates to an offence that bears the hallmarks of a criminal offence, if the state prosecutor believes it to be a petty offence or an offence of low significance. An offence that otherwise bears the hallmarks of a criminal offence as determined by law is not punishable if it is a petty offence. An offence is a petty one when the level of danger involved is insignificant due to the nature or gravity of the offence, because the damaging consequences of the offence are slight or non-existent, on account of the circumstances in which it was committed, because of the low level of the perpetrator’s criminal liability or owing to his personal circumstances (Sect. 14 PC). In practice, state prosecutor’s offices apply the institute of petty offence fairly frequently; in theory, its use opens up a number of questions. To date, the prevalent position has been that the institute of petty offence does not constitute a deviation from the principle of legality, since the law lays down precisely the conditions and criteria for assessing whether an offence is petty in nature.
