Principle of Truth and Some Markedly Summary Types of Criminal Procedure

Under the 2001 CPC, there are two types of markedly summary criminal procedures which in-clude sentencing procedures in which the main hearing is not conducted, namely: 1) sentencing procedure prior to the main hearing and 2) procedure for imposing a sentence and a suspended sentence by an investigating judge.³³ Naturally, summary proceedings themselves, according to their definition and a name, represent a (more) summary form of procedure than the common (ordinary) criminal proceedings.

The sentencing procedures which do not include a main hearing are special types of sum-mary criminal proceedings which are characteristic because they lack the main hearing and are

33 Thesecondtypeofsummaryprocedureisinfactimpossiblesinceitconcernscriminaloffenceswhicharenolongersubjectto

investigation,whichmeansthatitonlyan“empty”norm.

basically very simplified forms of proceedings,³⁴ which ensure a very prompt conclusion of cri-minal proceedings. Given the fact that in such proceedings there is no trial in the narrow sen-se of the word and that a defendant is in principle entitled to have a trial, defendant’s consen-sent is the conditio sine qua non when criminal matters are thus disposed of because the defendant and his defence attorney can automatically cause the proceedings to “return” to their ordinary course by activating a specific procedural mechanism, i.e. by filing an objection against a ruling issued in such proceedings. Apart from this, when such types of proceedings are conducted, rules con-tained in the Code restrict the Court with regard to the imposition of criminal sanctions whi-ch would otherwise be possible if the traditional summary proceedings were conducted, whiwhi-ch practically provides “motivation” for a defendant to accept such proceedings, i.e. not to file an objection which would automatically vacate a ruling issued in such proceedings and thus lead to the traditional manner of disposition of criminal matters.

Both forms of the utmost summary conclusion of criminal proceedings involving minor or less serious crimes, which come down to imposition of a criminal sanction without holding the main hearing presuppose that a defendant assent to them, because if the defendant should file a pro-per legal remedy, the proceedings are “automatically returned to the ordinary course of action”.

Thus, by assenting to a suitable summary form of proceedings, the defendant both de facto and implicitly pleads guilty to the crime, which to a certain extent resembles defendant’s assent to assu-me obligations by whose fulfilassu-ment he “earns” not to be prosecuted in cases when a public pro-secutor (conditionally) defers prosecution by following the principle of propro-secutorial discretion.

A similar, maximally “simplified” form of criminal proceedings used in cases of relatively less se-rious crimes (punishable by a fine or imprisonment of up to five years) can also be found in the 2011 CPC and it is a sentencing hearing. Here as well, a defendant’s assent to such a form and ma-nner of conclusion of criminal proceedings is the condition sine qua non since pursuant to Article 517, immediately after the conclusion of the sentencing hearing, a judge will issue a judgment of conviction or order the main hearing. The judgment of conviction is passed if a defendant has 1) assented to a motion put forward by a public prosecutor at the hearing or 2) failed to respond to a summons to appear at the hearing. As opposed to this, if a defendant does not assent to a moti-on put forward by a public prosecutor at the main hearing, a judge will issue an order setting the date, time, and venue of the main hearing, which means that proceedings are thus “automatically returned to the ordinary course of action.”

10. Conclusion

Summary forms of criminal proceedings are very important because if they are introduced into the system of criminal procedure on a wider scale and used significantly more often in practice, the caseload of the criminal justice system may be reduced in an appropriate way and it may re-sult in far shorter average duration of criminal proceedings.³⁵

34 Formoreonthistopic,Z.JekićandM.Škulić,Zakonikokrivičnompostupku–sa predgovorom, objašnjenima i registrom pojmova,

Beograd,2002,str.31.

35 Formoreonthistopic,S.Bejatović,Pojednostavljene forme postupanja u krivičnim postupcima i njihov doprinos efikasnosti krivičnog postupka,proceedingsoftheconferenceSrpskoudruženjezakrivičnopravnuteorijuipraksu,Zlatibor,2009,str.58–59.

The majority of summary and the so-called simplified forms of criminal proceedings presuppose a corresponding “cooperating” attitude of a defendant with regard to such form of criminal pro-cedure; on the one hand, this comes down to a requirement that the defendant must plead guil-ty to a crime, while on the other hand, the defendant must be adequately “motivated” to agree to an “abbreviated” form of procedure.

Defendant’s motivation, when he “assents” to a corresponding simplified form of proceedings ba-sically comes down to a milder criminal sanction which will be imposed on him in such crimi-nal proceedings, which is sometimes provided for in the law, such as in our country when sen-tencing proceedings which do not involve the main hearing are concerned, and sometimes it is in fact implied, such as in cases of agreements on the admission of guilt or plea agreements, i.e.

it may be subject to plea bargain “negotiations”. Naturally, this is essentially justified or there is a relevant reason behind it, but in respect of this issue, a certain amount of caution is advised sin-ce in essensin-ce, the principle of truth should not be neglected with regard to summary forms of conducting and concluding criminal proceedings and it is primarily reflected in the rule that the Court must be satisfied, based on the existence of other evidence and not only and exclusively on defendant’s statement, that his confession is truthful. In that regard, there are no reasons for some unreasonable “mystification” because, by the obvious logic, a genuinely truthful confession will in practice usually “produce” other evidence which substantiate it, which is why it is wrong that the 2011 CPC insists in corresponding provisions which govern defendant’s confession, such as confession as an element of a plea agreement, that there must exist other evidence “which is not contrary” to the confession. Such wording is not adequate since in practice it may in fact lead to the “survival” of confessions which are truly completely “uncorroborated” confessions. Namely, it may happen that there are a number of pieces of evidence which are really not contrary to a con-fession, but are also not related to it in any relevant way, which would be completely absurd and may lead to a markedly unfair manner of resolution of criminal matters if such confessions were routinely assessed as credible.

With regard to the evaluation criteria for veracity of a defendant’s confession and in general the fundamental condition under which simplified forms of criminal proceedings may be conduc-ted, which comes down to an explicit or implicit “agreement” by a defendant, in particular when the plea agreement is concerned, the 2001 Criminal Procedure Code unfortunately offers far better guarantees than the rules contained in the new Criminal Procedure Code enacted in 2011, which more than anything is a consequence of an erroneous and damaging devaluation of the principle of truth in that Code.

Zvonko Fišer, PhD¹

StateProsecutorasaPartytoSummaryand

SimplifiedCriminalProceedingsinSlovenia

1. Introduction

At the very beginning, we need to explain that Slovenia belongs to the category of those now qu-ite rare countries which have not until this moment (yet) reformed their criminal proceedings in accordance with the prevailing trend that has developed in Europe since the late nineteen-eighties.

Certainly, this does not mean that Slovenia’s Criminal Procedure Code (CPC)² has not changed in many ways since its adoption in the mid-1990s. On the contrary: in the first place, a number of important decisions passed by the Constitutional Court of Slovenia led to several Amending Laws to the Code and thus changing some important elements of procedural law. From time to time, the lawmaker himself would introduce some changes, although, some believe, such decisi-ons happened too rarely and occasionally they were made with too much caution and even fear.

In any case, the introduction of the institutes of the so-called restorative justice, which as we all know result in abandonment of prosecution should be mentioned as one the above changes.

Only afterwards did Slovenian legislators turn to the real institutes of summary and simplified proceedings in narrower terms, to which we focus on in this paper. Nevertheless, both directi-ons have undoubtedly resulted in some positive and innovative modificatidirecti-ons of the Slovenian criminal procedure.

In any event, an indisputable fact remains – all those changes took place within the framework of procedural law whose underpinning concept and structure had not been changed. It could be

1 StateProsecutorGeneraloftheRepublicofSloveniaandprofessor

2 SeeOGRS/Official Gazette of the RS/,No.63/94fortheoriginalCPC.Itcameintoforceinearly1995.

said that only recently, and I refer to the amendments which came into force in May 2012³ when (true) plea bargaining was legislated, have deeper, even systemic amendments been made in terms of the principles underlying the 1994 Code.

One could say, without exposing himself to being proven wrong, that Slovenia’s Criminal Procedure Code (and this also applies to Yugoslav Codes or the Criminal Procedure Codes pri-or to the early 1990s) did not provide fpri-or the true summary and simplified proceedings. It was a major shortcoming of the system. What was officially referred to as summary proceedings⁴ was nothing more than a simplified and rather uninventive variation on the regular criminal procee-dings, its “shorter” brother, so to speak. Over time, differences between the regular and thus sim-plified proceedings had become slighter not greater, which would be expected in our period in history. The lawmaker made a decision sic et simpliciter to legislate some sort of not-so-complex proceedings to be applied to all less serious offence. The line of division that was set was comple-tely linear, and it took into account only the prescribed punishment, no exceptions at all.⁵ No ot-her potentially relevant circumstance was of interest to him; he completely ignored the will and aspirations of the parties,⁶ as well as what is required in connection with the proceedings in each specific case, for instance with regard to proving the case and similar.

The fact that more room for manoeuvre for shortening or simplifying criminal proceedin-gs was allowed and created by some variants of the regular criminal proceedinproceedin-gs is a paradox.

This particularly refers to the both forms of direct indictment⁷ and, to the evidentiary or pre-liminary hearing,⁸ which is usually forgotten because it is a case of a stillborn in our criminal proceedings since it has unfortunately never taken hold as a potential starting point for plea bargaining.

Whereas the parties to the summary proceedings which have been thus formulated have mini-mal or no influence on the selection of proceedings, the use of above-mentioned variants of the regular proceedings depends for the most part on a decision of the state prosecutor. The oppo-sing side, the defence, has virtually been marginalised, so it could hardly be maintained that tho-se catho-ses stand for summary or simplified procedures which meet contemporary theoretical stan-dards in this field.

3 LawAmenddingtheCPC-K,seeOGRS,No.91/2011.

4 SeeChapterXXVoftheCPCwhosetitleisSummaryProceedingsbeforeCircuitCourt.

5 IntheSlovenianCPC,thatlinehasbeensetatthelevelofthreeyears’imprisonmentandthereare(practically)noexceptionsto

this.Itisevidenttoeverybodythatitinvolvesanenormousnumberofoffenceswhichmustbedealtwithinpractice,butwhich

differamongthemselvestoagreatextent.However,inspiteofthis,allthoseoffencesareprocessedinoneandthesametypeof

proceedings,nodifferencewhatsoever.

6 Itisclearthatthisreferstotheprosecutingauthority,althoughbydescribingandclassifyingtheactinanaccusatoryinstrument,

heexertsasubstantialinfluenceonwhichtypeofproceedingswillbeselectedforthecase.Itwouldbeinterestingtolearnifstate

prosecutorshaveusedmechanismssuchascorrectionalisationwithintheframeworkoftheknowninstitutesofcriminalprocedure.

ThisphenomenonhasnotyetbeeninvestigatedinSloveniaandasastate(public)prosecutorofmanyyearsIwoulddaretoassert

thatithasnotbeenusedsystematically,inparticularforproceduralmotives(torefercasestoasimplertypeofproceedings).Atthe

sametime,itiscompletelycertainthatthesaidmechanismshavebeenappliedtoindividualcases.

7 SeeArticle170,paragraphs1and6oftheCPC.

8 SeeArticle169,paragraph3oftheCPC