Previously published by Global Legal Group
1. General Criminal Law Enforcement
1.1 What authorities can prosecute business crimes, and are there different enforcement authorities at the national and regional levels?
Enforcement of criminal law and initiation of the criminal procedure in Slovenia depends on the type of criminal offence and is regulated in the Criminal Code (Kazenski zakonik, KZ-1) for each specific offence separately and in the Criminal Procedure Act (Zakon o kazenskem postopku, ZKP), which regulates the criminal prosecution. In general, enforcement of criminal law is entrusted to the Office of the State Prosecutor General, which is an independent State agency. Its hierarchical organisation into the State Prosecutor's Office, governed by the Attorney-General and District (regional) State Prosecutor's Offices, is mostly regulated in the State Prosecutor Act (Zakon o dr~avnem to~ilstvu, ZDT-1). There are no separate national or regional levels of enforcement authorities. Also, no special law enforcement agencies exist.
However, a special governmental Office for Money Laundering Prevention has some investigative authorities and may use them in case of criminal offences concerning money laundering. However, if the state prosecutor finds that there are no grounds to institute or to continue criminal proceedings, the injured party itself may assume prosecution. For some offences, the victim, functioning as the private prosecutor, may also initiate the procedure. Criminal offences with a predominant personal element may only be prosecuted upon the victim's motion to prosecute.
1.2 If there are more than one set of enforcement agencies, please describe how decisions on which body will investigate and prosecute a matter are made.
With regard to the state prosecution, the State Prosecutor Act sets forth the competent state prosecutor office which corresponds to the levels of the court organisation. The internal hierarchical structure is reflected in the right of the superior state prosecutor to take over an individual matter or task for which a lower-level state prosecutor is otherwise competent. Moreover, the Office of the State Prosecutor General decides on disputes over the jurisdiction that occur between District State Prosecutors' Offices and in the cases of transferral of jurisdiction to other territorial offices.
The newly amended State Prosecutor Act established a Specialized State Prosecution Office which is a continuation of the Group of State Prosecutors for the Prosecution of Organised Crime. It is exclusively responsible for the prosecution of criminal offences in the entire Slovenian territory which acquire special organisation and knowledge with the highest level of efficiency. This office is especially responsible for prosecuting criminal offences in the area of organised crime and business crime, terrorism and offences connected with corruption. In case of jurisdiction questions, there is a presumption of its competence. Similarly, a special unit for the prosecution of officers holding special powers, organised within the Specialized State Prosecution Office, possesses exclusive competence to prosecute criminal offences committed by state officials.
1.3 Is there any civil or administrative enforcement against business crimes? If so, what agencies enforce the laws civilly and which crimes do they combat?
There is no special civil or administrative enforcement against business crime. However, the Enforcement and Securing of Civil Claims Act (Zakon o izvrabi in zavarovanju, ZIZ) provides for the preliminarily security measures such as preliminary injunction or security. Such a security measure will be granted upon the party's request by the relevant court in case of a future possible monetary and also non-monetary claim in order to secure the future enforcement of a court decision, which would otherwise be uncertain. Furthermore, the Criminal Procedure Act also allows for the provisional securing of a monetary claim on the proposal of the claimant or the injured party, who holds a claim against a person in possession of the property acquired through the commission of a criminal offence.
A special enforcement is applicable in the case of seizure of instrumentalities and proceeds if there is a danger that the defendant could use these proceeds for further criminal activities or could conceal, alienate, destroy or otherwise make use of these instrumentalities. In such circumstances, the court shall, on its own authority, order temporary security measures upon motion of the state prosecutor.
2 Organisation of the Courts
2.1 How are the criminal courts in Slovenia structured? Are these specialised criminal courts for particular crimes?
The judicial system in Slovenia consists of courts with general and specialised jurisdiction. The former are hierarchically structured in three instances: local and district courts, which operate on the first instance; appellate/higher courts on the second instance; and the Supreme Court as the highest court in the State. On the other hand, the latter is comprised of four labour courts, a social court and a special Administrative Court.
Whilst no special criminal law courts exist in Slovenia, criminal cases are adjudged by the general courts. The composition of a criminal court in the first instance depends on the two decisive factors – the territorial element and the type of criminal act being adjudicated. Criminal offences of a less serious nature, which are punishable by a monetary fine or a maximum sentence of three years' imprisonment, apart from criminal offences against honour and reputation committed by the mass media, are allocated to the territorially-applicable local court and adjudged by a single judge. Criminal offences, where a sentence of imprisonment for more than three years shall be imposed, are designated to the district court in various compositions. Severe criminal offences are adjudged by a panel consisting of one presiding judge, a second judge and three lay judges; most criminal cases are heard by a panel consisting of one presiding judge and two lay judges and a single judge is responsible for the conduct of the criminal investigation.
2.2 Is there a right to a jury in business-crime trials?
Business-crime trials before the district court, where a sentence of at least three years' imprisonment shall be imposed, are tried by a panel of one professional judge and two lay judges.
3 Particular Statutes and Crimes
3.1 Please describe any statutes that are commonly used in Slovenia to prosecute business crimes, including the elements of the crimes and the requisite mental state of the accused.
- Fraud and misrepresentation in connection with sales of
securities
Fraud and misrepresentation are criminal offences punishable under Article 211 of the Criminal Code (KZ-1). Moreover, on a more specific level, Article 231 KZ-1 also regulates fraud in securities trading. It is a criminal offence punishable with imprisonment to falsely represent the balance of assets, data on profits or losses or any other data, when trading stocks, other securities or other financial instruments. Such fraudulent behaviour should result in a purchase, sale, or any other transaction by a third person. Besides that, Article 244 KZ-1 incriminates fabrication and use of counterfeit stamps of value or securities. It is a criminal offence, punishable with imprisonment for one to eight years, to fabricate counterfeit securities or alter any security with the intention of using it as genuine or conferring it to a third person. - Accounting fraud
Several offences in Slovenian Criminal Code refer to the prohibition of fraud. Business fraud is, for instance, a criminal offence under Article 228 KZ-1. A person performing an economic activity is criminally liable if he or she defrauds another by misrepresenting the obligations or by concealing the facts, which results in the acquisition of a property benefits or which causes loss of property to a third person. Such offence must be committed intentionally.
A more specific Article 226 KZ-1 regulates false bankruptcy, which means an intentional or actual worsening of a financial situation resulting in bankruptcy or striking a company off the register with the aim of avoiding payment of certain obligations. It is also forbidden to initiate a bankruptcy, with the purpose of defrauding creditors, by rendering insolvency through irrational spending of funds, delayed collection of debts, conclusion of detrimental contracts, transferral of property to other persons and reduction of the value of property.
Article 227 KZ-1 further incriminates defrauding of creditors, which emerge when a person engaging in economic activities knowingly puts a certain creditor in a preferential position, thereby causing a large property loss to other creditors. Another provision is Article 230 which regulates fraud while obtaining loans or benefits. In this situation a false or incomplete data concerning the balance of assets, balance sheets, profits, losses or any other facts are disclosed in order to obtain the loan. A new Article 229 KZ-1 specifies the elements of a fraud to the detriment of the European Union. - Insider trading
Abuse of insider information in Article 238 KZ-1 is a special form of securities fraud. Whoever obtains insider information capable of influencing the price of securities or any other financial instrument and uses such information for him/her or any third person in order to acquire or dispose of such security shall be punished. It is also prohibited to communicate such insider information to an unauthorised person or, on the basis of such insider information, make recommendations to the third person. Moreover, acquisition of such insider information without authorisation is prohibited. For the purpose of this chapter insider information is information acquired in relation to the position a person is occupying in the issuing company or in relation to the equity in the capital of the issuer, the employment relationship with the issuer, or when performing a certain activity. - Embezzlement
Embezzlement is a criminal offence enshrined in Article 209 KZ-1, which prohibits unlawful conversion of money or any other property of a person to the perpetrator's own use. Such property should be entrusted to the perpetrator by virtue of employment or performance of an economic, financial, or business activity, or while performing the obligations of a guardian or an official person. Unauthorised usage of such entrusted or accessible objects is also prohibited. - Bribery of government officials
A special chapter of Slovenian Criminal Code regulates criminal offences against official duties and public authorisations.
Article 261 KZ-1 explicitly prohibits the acceptance of bribes by public officers or government officials and Article 262 KZ-1 incriminates the act of giving bribes. The bribe is understood as any award, gift or other property benefit, or a promise or offer for a certain benefit. The former offence relates to an active request for, or a passive acceptance of, a bribe by a government official. The bribe is given in order to perform or not to perform an official act within the scope of his/her official duties. A less severe penalty is imposed in case such an official act would be performed or would not be preformed regardless of the bribe given. The latter offence incriminates the giving of bribes to a governmental officer with an intention to perform an official act within the scope of the officer's duties which should otherwise not be performed. Similarly, a lower sentence is imposed in case such an official act, for which the bribe is given, would be performed in any case.
Furthermore, Article 263 KZ-1 prohibits the accepting of benefits for illegal intermediation. It is a criminal offence to accept bribery, for the purpose of using a public office position or using an influence to intervene, so that a certain official act would be performed. Similarly, also the giving of gifts for illegal intervention is prohibited under Article 264 KZ-1. The person, who promises, offers or gives a bribe to a public officer in order to use his/her official influence to intervene in the performance of a certain allowed or prohibited official act, is also punishable. Particular bribery offences in the event of a business bribe are regulated in Article 241-242 of the Criminal Code. - Criminal anti-competition
Under Article 225 KZ-1 abuse of a monopoly position is prohibited. It is a criminal offence if, in pursuing an economic activity, a person (natural or legal) abuses a dominant position of one or more companies or creates a forbidden concentration of companies contrary to regulations governing the protection of competition. Such an abuse should prevent or significantly impede or distort competition on the Slovenian or on the European Union market, and should bring a large property benefit for such a company or a large property damage for another company. - Tax crimes
Tax evasion is a crime enshrined in Article 249 of the Criminal Code. It is prohibited to provide false information about income, expenses, property, goods or other circumstances relevant to taxation or to otherwise defraud the tax authorities, if the amount of liabilities evaded or the undue tax recovery represents a major property benefit. Similarly, it is also prohibited to knowingly fail to report the income acquired or other circumstances, the reporting of which is mandatory and which have an influence upon the assessment of tax obligations. Another tax crime is also the refusal of providing information, submitting business books and records or providing explanations to the tax inspection authority. These criminal offences should be committed intentionally. - Government-contracting fraud
Despite the fact that Article 2 of the Liability of Legal Persons for Criminal Offences Act (Zakon o odgovornosti pravnih oseb za kazniva dejanja, ZOPOKD) states that Republic of Slovenia could not be held liable for committing a criminal offence, individual officials or public officers can commit a criminal offence against official duties and public authorisations. It is a criminal offence pursuant to Article 257 KZ-1 to abuse a governmental office or to exceed or fail to perform official duties with the intention of acquiring any kind of benefit for him/herself or a third person. Public officials shall also be liable for accepting bribes and benefits for the purpose of illegal intermediation in connection with the performance of an official act within the scope of his/her official duties. Such government-contracting fraud is common especially in public procurement procedures. - Any other crime of particular interest in Slovenia
Criminal offences against official duties and public authorisations
In connection with business crimes, criminal offences committed by public officials are of particular interest in Slovenia (see above).
Money Laundering
Money laundering is a criminal offence pursuant to Article 245 KZ- 1. It is prohibited in any way to knowingly accept, exchange, store, dispose, use in an economic activity or conceal the origin of money or property which was acquired through the commission of a criminal offence. For the purpose of imposing the sentence, it is irrelevant who committed the original criminal offence. If reasonable grounds to suspect money laundering or terrorist financing exist, a special governmental Office for Money Laundering Prevention has the authority to collect and analyse financial data on clients and transactions. Such data are later forwarded to the competent enforcement authorities.
3.2 Is there any liability for inchoate crimes in Slovenia? Can a person be liable for attempting to commit a crime whether or not the attempted crime is completed?.
Yes, an intentional attempt of a criminal offence is punishable despite the fact that the offence is not completed. Such an attempt is only punishable if an attempted crime is punishable with at least three years of imprisonment or if this fact is expressly regulated with regard to a particular crime. The sentence for the attempt shall be applied within the limits prescribed for such an offence, but a reduction is also possible. Moreover, in a case of voluntary abandonment of the attempt or an inappropriate attempt (an attempt to commit a criminal offence by an inappropriate means or an attempt to harm an inappropriate object), the sentence may be withdrawn.
4 Corporate Criminal Liability
4.1 Is there any entity liability for criminal offences? Is so, under what circumstances will an employee's conduct be imputed to the entity?
Liability of legal persons for criminal offences is established in Article 42 KZ-1 and shall be imposed on a legal person for criminal offences which the perpetrator commits in its name, on its behalf or in its favour. Furthermore, the entity liability for criminal offences in Slovenia is more specifically regulated in the Liability of Legal Persons for Criminal Offences Act (Zakon o odgovornosti pravnih oseb za kazniva dejanja). This act establishes liability on the part of the entity and determines conditions for its criminal liability, types of sentences and other legal consequences. An entity is liable: if the committed criminal offence means carrying out an unlawful resolution, order or endorsement of its management or supervisory bodies; if its management or supervisory bodies influenced the perpetrator or enabled him/her to commit the criminal offence; if it has at its disposal unlawfully obtained property benefit or uses objects obtained through a criminal offence; or if its management or supervisory bodies have omitted due supervision of the legality of the actions of its employees. Moreover, a legal person shall also be liable if the perpetrator is not criminally liable for the committed criminal offence. However, if there is no body supervising such a perpetrator, the entity shall only be liable within the limits of the perpetrator's guilt.
4.2 Is there personal liability for managers, officers and directors if the entity becomes liable for a crime?
The liability of a legal person does not preclude the criminal liability of its managers, officers and directors for committing the same criminal offence pursuant to Article 42(2) of the Criminal Code and Article 4 of the Liability of Legal Persons for Criminal Offences Act. Moreover, the criminal liability of legal persons shall not exclude liability of natural persons as instigators or aides in the same criminal offence. In general, the Slovenian Criminal Code aims toward autonomous criminal liability of legal persons; however, in some cases it also recognises strict parallel criminal liability (e.g. liability of editors in Article 266 KZ-1).
4.3 Where there is entity liability and personal liability, do the authorities have a policy or preference as to when to pursue an entity, when to pursue an individual, or both?
In Slovenia, criminal offences, committed both by the legal entity or natural persons, are prosecuted ex officio by the Office of the State Prosecutor General. Consequently, authorities are obliged to indict not just natural persons but also legal persons.
5 Statutes of Limitations
5.1 How are enforcement-limitations periods calculated, and when does a limitations period begin running?
The Slovenian Criminal Code prescribes strict time limitation periods for the criminal prosecution to commence and for the implementation of the sentence. These limitation periods depend on the severity of the prison sentence imposed and are applicable to both public prosecutors and private prosecutors (victims). While the enforcement-limitations periods for the criminal prosecution to commence vary from six to fifty years, the periods for the implementation of the sentence vary from three to twenty-five years. However, for particular severe criminal offences, no statute of limitations exist (e.g. genocide, war crimes). In case of offences against sexual integrity and offences against marriage, family and youth, committed against a minor, the time limit for criminal prosecution shall begin when the injured person becomes an adult.
5.2 Can crimes occuring outside the limitations period be prosecuted if they are part of a pattern or pratice, or ongoing conspiracy?
In case of a continued criminal offence (simultaneous or successive commission of two or more equal or similar criminal offences), the limitations period commences after the commission of the last offence. Consequently, crimes occurring outside the limitations period shall also be subject to prosecution. If more than one sentence is prescribed for a criminal offence, the time limit referring to the most severe punishment applies.
5.3 Can the limitations period be tolled? If so how?
The limitation period shall be interrupted if the perpetrator commits a further criminal offence of the same or greater seriousness before such a period has ended pursuant to Article 91(4) KZ-1. After an interruption, a new period of limitation shall start. Further, pursuant to Article 94 KZ-1, the time limit for the implementation of a sentence shall, in the event of revoking a suspended sentence, run from the day the written order on the revoking becomes formal. Also the time limit shall be suspended during the time in which the sentence may not be implemented.
6 Initiation of Investigations
6.1 How are investigations initiated? Are there any rules or guidelines govening the government's initiation of any investigation? If so, please describe them.
Criminal procedures shall be instituted upon request of the authorised prosecutor. For the majority of crimes, the investigations are initiated ex officio by the State Prosecutor's Office. In exceptional circumstances the state prosecutor may decide not to proceed with a case. In these situations the victim has to be instructed that he/she may continue prosecution as a private prosecutor within eight days. In such cases, courts should apply the same procedure. Furthermore, the injured party (victim) has all the rights of the state prosecutor and has the position of an equal party in criminal procedure. Regardless of the above-described system, the initiation of criminal proceedings for certain less serious criminal acts remains within the discretion of the injured party (see also questions 1.1 and 1.2 above).
6.2 Do the criminal authorities have formal and/or informal mechanisms for cooperating with foreign prosecutors? Do they cooperate with foreign prosecutors?
Slovenian authorities use several international judicial assistance mechanisms to cooperate with foreign prosecutors, in particular in cross-border business crime cases. On a formal level, such cooperation is regulated on an international level through bilateral or international agreements and on the European Union level. The Slovenian Office of the State Prosecutor General participates in the functioning of Eurojust (European Union's Judicial Cooperation Unit), Euro Justice (Network of European Prosecutors-General), OLAF (European Anti-Fraud Office), Europol (European Police Office) and The Academy of European Law (ERA). It is a member of the International Association for Prosecutors (IAP), Conference of Prosecutor's General of Europe (CPGE), SouthEast European Initiative (SECI), SouthEast European Prosecutor's Advisory Group (SEEPAG) and International Association for Anti- Corruption Agencies (IAACA).
Moreover, criminal authorities have several informal mechanisms at their disposal to make a request for legal assistance.
7 Procedures for Gathering Information from a Company
71 What powers does the government have generally to gather information when investigating business crimes?
There are several powers available to the police, state prosecutors and investigating judge in order to gather information in the preliminary procedure stage. However, no specific formal rules of evidence exist in criminal procedure.
In the pre-trial procedure the police may: seek information from citizens; inspect transportation vehicles, passengers and luggage; restrict movement within a specific area for a specific period of time; perform what is necessary to identify persons and objects; send out a wanted circular for persons and objects; inspect specific facilities, premises and documentation of enterprises and other legal entities in the presence of the responsible person; summon citizens, interrogate suspects, deprive a person of freedom etc.
For the majority of business crimes the police could be authorised by the investigating judge following the public prosecutor's written proposal: to carry out secret surveillance measurements (Article 149(a) ZKP); to acquire information by the operator of the electronic communications network (149(b) ZKP); and to monitor electronic communications using listening and recording devices, to control letters, computer systems of banks or other legal entities which perform financial or commercial activities, and to wire-tap and record conversations with the permission of at least one person participating in the conversation (Article 150 ZKP). Other possible measures include: measures of feigned purchase, feigned acceptance or giving of gifts or feigned acceptance or giving of bribes ordered by the state prosecutor (Article 155 ZKP); initiation of an undercover operations (Article 155(a) ZKP); and acquiring information and documentation on the transactions by the bank upon a proposal of an investigating judge (Article 156 ZKP). In the investigation phase, several other acts of investigation such as house searches and personal searches, seizure of objects, interrogation of the accused, examination of witnesses and inspection, shall be conducted (Articles 214-267 ZKP).
Document Gathering
7.2 Under what circumstances can the government demand that a company under investigation produce documents to the government, and under what circumstances can the government raid a company under investigation and seize documents?
A state prosecutor can demand that a certain company produce documents only if preliminary investigations are pending. A search of the dwelling and other premises of the company may only be conducted if there are reasonable grounds for suspecting that a company has committed a criminal offence and that there is a likelihood of apprehending the accused or discovering the traces of the crime pursuant to Article 214 ZKP. A search can only be conducted upon a reasoned court decree which is presented to the person whose premises are to be searched. Moreover, such a person shall be firstly asked to surrender the objects voluntarily.
7.3 Are there any protections against production or seizure that the company can assert for any types of documents? For example, does Slovenia recognise any privileges protecting documents prepared by attorneys or communications with attorneys? Do Slovenia's labour laws protect personal documents of employees, even if located in company files?
Pursuant to Article 235 ZKP, defence counsel may not be examined on matters confided to him/her by the defendant, unless the latter requests so. Moreover, attorneys in connection with their clientrelationship are bound by the duty to keep information learned in the exercising of their profession. With regards to such information, attorneys are exempted from the duty to testify (Article 236 ZKP). Similarly, an exemption from the duty to testify exists for doctors, social workers, psychologists or other persons, if bound by the "confidential duty". However, under specific circumstances, a house or a personal search could be imposed to persons exempted from the duty to testify (e.g. an attorney's office). Slovenian labour laws do not provide for a special right to protect the personal documents of employees. Nevertheless, the Criminal Procedure Act provides for the rule that only the objects and documents related to the purpose of that particular search may be seized (Article 216(7) ZKP).
7.4 Under what circumstances can the government demand that a company employee produce documents to the government, or raid the home or office of an employee and seize documents?
The police or state prosecutor, depending on the stage of the procedure or the measures imposed, may seek documents from the employee in the same way as from the company. Before the investigation, such as a house or personal search and seizure of objects, the employee should be asked to submit the documents voluntarily.
7.5 Under what circumstances can the government demand that a third person produce documents to the government, or raid the home or office of a third person and seize the documents?
A search of the home or an office of a suspect or any third person may be conducted if there are reasonable grounds for suspecting that a specific person has committed a criminal offence and that there is a likelihood of apprehending the accused or discovering the traces of the crime or objects of importance for the criminal procedure. Similarly, any third person, as a custodian of such objects, shall be bound to hand them over at the request of the court. A custodian, who declines to deliver the objects, may be fined or even arrested pursuant to Article 220(2) ZKP.
Questioning of Individuals
7.6 Under what circumstances can the government demand that an employee, officer, or director of a company under investigation submit to questioning? In what forum can the questioning take place?
Slovenian Criminal Procedure Act complies with all human rights documents on the right to a defence and fair trial. Firstly, the suspect shall be informed of the offence he/she is charged with and of the grounds on which the charge has been brought against him/her at the first interrogation. Such an employee, officer or director of a company shall not be obliged to plea or to answer any questions and should have the right to a defence lawyer. Moreover, forcing of confession or any other statement from the suspect or from any other participant in the proceedings is strictly prohibited.
However, if such a person appears as a witness, he/she shall be bound by a duty to abide by the summons and a duty to testify. Nevertheless, there are some exemptions from the duty to testify (e.g. for close family members and certain professions).
The questioning can take place in the pre-trial stage, where a suspect has the right to the presence of the lawyer. Further, in the investigation phase and the trial phase the accused is interrogated by the investigating judge or a presiding judge.
7.7 Under what circumstances can the government demand that a third person submit to questioning? In what forum can the questioning take place?
The government may question third persons in the investigation phase and in the trial (see question 7.6 above). Such a third person has a duty to testify and a duty to speak the truth since a false testimony constitutes a criminal offence. In the investigation phase a third person acting as a witness shall be examined separately and without the presence of other witnesses.
7.8 What protections can a person being questioned by the government assert? Is there a right to refuse to answer the government's questions? Is there a right to be represented by an attorney during questioning?
The right to refuse to answer a question during the criminal procedure depends on the status of the person who is being interrogated (see question 7.6 above). There is a right to be represented by an attorney of your own choice from among members of the Bar. If the accused does not retain a lawyer of his/her own choice, the court shall appoint defence counsel for him/her in cases provided by the Criminal Procedure Act. However, the interrogation of the suspect by the police may only be conducted in the presence of the lawyer.
8 Initiation of Prosecutors / Deferred Prosecution / Civil Dispositions
8.1 How are criminal cases initiated?
Criminal offences in Slovenia are generally initiated ex officio which means that all state agencies and organisations having public authority are bound to report criminal offences liable to public prosecution of which they have been informed (e.g. by a criminal complaint) or which were brought to their notice in some other way. Moreover, any person may report a criminal offence which is liable to public prosecution.
8.2 Are there any rules or guidelines governing the government's decision to charge an entity or individual with a crime? If so, please describe them.
Yes. Please see questions 4.1 and 4.2.
8.3 Can a defendant and the government agree to resolve a criminal investigation through pretrial diversion or an agreement to defer prosecution? If so, please describe any rules or guidelines governing whether pretrial diversion or deferred procescution are available to dispose of criminal investigations.
Firstly, the state prosecutor may decide, taking into account the type and nature of the offence, the circumstances in which it was committed, the personality of the defendant and his/her prior convictions, as well as the degree of criminal responsibility, to transfer a prosecution of a less severe criminal offence to the settlement procedure (Article 161(a) ZKP). This alternative resolution of a criminal offence is run by an adjuster with the purpose of successfully solving the conflict between the injured party and the defendant. Thus, their consent is necessary to implement the procedure. Upon fulfilment of the agreement, the state prosecutor shall dispose of criminal investigations.
Secondly, the state prosecutor may, with the consent of the injured party, conditionally suspend prosecution of certain criminal offences (Article 162 ZKP). The defendant should perform certain actions as instructed by the state prosecutor to allay or remove the harmful consequences of the criminal offence (e.g. elimination or compensation of damage, execution of some generally useful work).
8.4 In addition to or instead of any criminal disposition to an investigation, can a defendant be subject to any civil penalties or remedies? If so, please describe the circumstances under which civil penalties or remidies are appropriate.
Claims for indemnification arising out of the commission of a criminal offence shall, upon a motion by rightful claimants or any other person entitled to assert such claim in a civil procedure, be dealt with in criminal procedure. Such a claim may consist of a demand for compensation for damage, the demand for the recovery of the property or the cancellation of a legal transaction.
If a determination of those claims would significantly protract the procedure, or if the criminal offence would give rise to other civil claims, the damaged party may initiate additional civil proceedings.
9 Burden of Proof
9.1 For each element of the business crimes identified above, which part has the burden of proof? Which party has the burden of proof with respect to any affirmative defences?
The objective of a criminal proceeding is to establish a material truth, thus no formal burden of proof exists. In general, considering the presumption of innocence, the burden of proof is conferred to the government (e.g. police, state prosecutor) which needs to prove every element of the crime. The state prosecutor shall be bound to institute criminal prosecution if there is reasonable suspicion that a criminal offence liable to prosecution ex officio has been committed. The defendant shall not be obliged to plead his case or to answer any questions. However, he/she shall have the right to state facts and provide evidence in his/her favour. In case of affirmative defence (e.g. self-defence, coercion) the defendant bears the burden of proof.
9.2 What is the standard of proof that the party with the burden must satisfy?
Slovenian Criminal Procedure Act does not systematically specify or define standards of proof that the party need to satisfy. The police in the pre-trial stage are, for instance, bound by two different standards of proof: the grounds for the suspicion that a criminal offence liable to public prosecution has been committed; and the reasonable grounds for suspicion in case of more severe investigating acts (e.g. secret surveillance measurements). However, the law does not define the terms "grounds for the suspicion" or "reasonable grounds for suspicion". Moreover, the Criminal Procedure Act demands a sufficient degree of certainty in the event of a guilty verdict.
9.3 In a criminal trial, who is the arbiter or fact? Who determines whether the party has satisfied its burden of proof?
The arbiter of facts in a criminal trial is always the presiding single judge or the panel in mixed jury trials. The judge shall base his/her judgment solely on the facts and evidence considered at the main hearing and is bound to assess each item of proof separately and in relation to other items of proof. On the basis of such an evaluation, the presiding judge should reach a conclusion whether or not a particular fact has been proven.
The principle in dubio pro reo instructs the judge to decide in favour of a factual situation more favourable for the defendant in case the prosecutor cannot sufficiently prove the incrimination of facts.
10 Conspiracy / Aiding and Abetting
10.1 Can a person who conspires with or assists another to commit a crime be liable? If so, what is the nature of the liability and what are the elements of the offence?
Likewise, the perpetrator, the person soliciting (the instigator) or supporting (the aide) the criminal offence is liable within the limits of their intent pursuant to Article 40 KZ-1. In case of a criminal attempt, they shall be punished according to the prescriptions that apply to the criminal attempt. Nevertheless, if the instigator or the aide voluntarily prevented the intended criminal offence from being accomplished, their sentence may be withdrawn. Furthermore, personal relations, attributes and circumstances could be taken into consideration when considering the limits of punishability.
11 Common Defences
11.1 Is it a defence to a criminal charge that the defendant did not have the requisite intent to commit the crime? If so, who has the burden of proof with respect to intent?
No, a perpetrator shall commit a criminal offence with intent if he/she was aware of the act and wanted to perform it, or was aware that an unlawful consequence might result from the conduct but has nevertheless let such consequence to occur. Thus, a person is culpable if he consciously and wilfully intended to pursue a certain goal which corresponds to a statutory definition of an offence and certain unlawful consequence (direct intent/dolus directus). A person is also culpable if he/she was aware that possible unlawful consequences might occur and he/she wilfully let them occur (eventual intent/dolus eventualis). Most business crimes require that the act was committed intentionally.
The burden of proof with respect to the intent lies with state prosecutors, who must sufficiently prove the incriminating facts.
11.2 Is it a defence to a criminal charge that the defendant was ignorant of the law i.e. that he did not know that his conduct was unlawful? If so, what are the elements of this defence, and who has the burden of proof with respect to the defendant's knowledge of the law?
The perpetrator of a criminal offence shall not be held liable under criminal law if, for reasons which can be justified, he/she did not know that such an offence was unlawful. If the perpetrator could have known about the unlawfulness of the act or should have known such special legal acts in relation to his/her work, role, or general position, the reasons for justification are not given. Thus, the principle of ignorantia iuris nocet in general still applies, since only a mistake of law that can be reasonably justified can exclude the guilt and consequently the punishment of the defendant.
The defendant has the burden of proof with respect to the error in law (error iuris).
11.3 Is it a defence to a criminal charge that the defendant was ignorant of the facts i.e. that he did not know that he had engaged in conduct that he knew was unlawful? If so, what are the elements of this defence, and who has the burden of proof with respect to the defendants knowledge of the facts?
A perpetrator, who does not know that he/she had engaged in conduct that corresponds to the statutory definition of an offence (mistake of facts/error facti), acts without intent and shall thus not be held liable under criminal law. However, for a criminal offence committed out of negligence, the guilt of the perpetrator shall not be excluded, if he/she was in error regarding the circumstances, which he/she should and could have been aware of. Such a defendant is liable for negligent action.
The person charged must prove that the facts have been mistaken.
12 Voluntary Disclosure Obligations
12.1 If a person becomes aware that a crime has been commited, must the person report the crime to the government? Can the person be liable for failing to report the crime to the government?
Obligation to report a criminal offence liable to public prosecution exists for all state agencies and organisations having public authority for the offences they have been informed about or for the offences that were brought to their notice in some other way (see also question 8.1 above). In submitting crime reports, they must indicate evidence known to them and shall undertake steps to preserve traces of the crime, objects connected to the committed crime and other items of evidence (Article 145 ZKP). In case the sentence imposed for such a criminal offence exceeds three years' imprisonment, a failure to report a crime constitutes a criminal offence pursuant to Article 281(2) KZ-1.
Moreover, a failure to report a crime and even a failure to inform authorities of preparations for a crime is considered a criminal offence (Articles 280-281 KZ-1). Whoever knows of a perpetrator of a criminal offence, for which a sentence of not less than fifteen years' imprisonment is prescribed, or whoever knows of the commission of such a criminal offence and fails to inform the competent authorities thereof, whereby such information is decisive to the discovery of the perpetrator of the crime, shall be sentenced to imprisonment for not more than three years. No punishment shall be imposed on certain persons (e.g. close relatives).
13 Cooperation Provisions / Leniency
13.1 If a person voluntarily discloses criminal conduct to the government or cooperates in a government criminal investigation of the person, can the person request leniency from the government? If so, what rules or guidelines govern the government's liability to offer leniency in exchange for voluntary disclosures or cooperation?
There is no statuary legal base in Slovenian criminal law implementing a leniency programme. However, the State Prosecutor Act authorises the Attorney-General to decide on a special enforcement policy. Within such a policy the Attorney- General should prescribe general instructions for the state prosecutors to decide on the criminal sanctions in the event of a confession.
13.2 Describe the extent of cooperation, including the steps that an entity would take, that is generally required of entities seeking leniency in Slovenia, and describe the favourable treatment generally received.
Liability of Legal Persons for Criminal Offences Act provides for a possibility to reduce a criminal sentence if the management or supervisory bodies, which have omitted due supervision of the legality of the actions of their employees, voluntarily declare the perpetrator. In case such an entity also immediately orders the return of illegally acquired possessions and provides for an indemnification for damages or transmits data on liability for other legal persons, the criminal sentence could be remitted. Such a disclosure should be made after the commission of the criminal offence and before the start of the investigation.
14 Plea Bargaining
14.1 Can a defendant voluntarily decline to contest criminal charges in exchange for a convicyion on reduced charges, or in exchange for an agreed upon sentence?
The classic system of plea bargaining does not exist in Slovenian criminal legislation as most criminal offences are prosecuted ex officio by a state prosecutor. The amendment of the Criminal Procedure Act, which is in preparation, will introduce the institute of plea bargaining. However, in cases requiring a motion by the injured party or in cases within the capacity of the private prosecutor, criminal procedure is less strict.
14.2 Please describe any rules or guidelines governing the government's ability to plea bargain with a defendant. Must any aspects of the plea bargain be approved by the court?
The government is not yet entitled to a plea bargain (see question 14.1).
15 Elements of a Corporate Sentence
15.1 After the court determines that a defendant is guilty of a crime, are there any rules or guidelines governing the court's imposition of sentence on the defendant? Please describe the sentencing process.
The Slovenian Criminal Code embodies the principle of individualisation of criminal sanctions which requires that the imposed sanction corresponds to the gravity of the offence, the degree of the offender's criminal responsibility and the personality of the offender. It operates on three levels: on the legislative level KZ-1 prescribes the type and the range of sanction for every individual criminal offence; on the level of adjudication the judge shall consider all circumstances which have an influence on the grading of the sentence (mitigating and aggravating circumstance) and can upon realisation of conditions even reduce or remit a sentence; and on the level of enforcement of the sentence. Special sanctions may be imposed on juveniles.
15.2 Before imposing a sentence on a corporation, must the court determine whether the sentence satisfies any elements? If so, please describe those elements.
Liability of Legal Persons for Criminal Offences Act as a lex specialis act prescribes imposition of a sentence on a legal person. A corporation found guilty may be punished by a monetary fine, confiscation of assets, termination of the legal person, restriction on participation in the public procurement procedure and prohibition of trading with financial instruments. A fine prescribed cannot be lower than EUR 10,000 and should not exceed EUR 1,000,000. In fixing the sentence, the court shall consider all circumstances which have an influence on the grading of the sentence (mitigating and aggravating circumstances), in particular the corporation's profitability and its economic power.
16 Appeals
16.1 Is a guilty or a non-guilty verdict appealable by either the defendant or the government?
A guilty or a non-guilty verdict may be appealed either by the defendant or by the government. Whereas a state prosecutor can bring an appeal both to the detriment and to the benefit of the defendant, the defendant can only appeal to his/her benefit.
16.2 Is a criminal sentance following a guilty verdict appealable? If so, which party may appeal?
Any judgment, including a guilty verdict, may be challenged on account of the decision on criminal sanctions, confiscation of property benefits, costs of criminal proceedings, indemnification claims and the announcement of the judgment in mass media pursuant to Article 370 ZKP. A guilty verdict may be appealed by the parties (defendant and state prosecutor), defence counsel, the legal representative of the defendant and the injured party.
16.3 What is the appellate court's standard of review? The appellate court shall examine the judgment in the scope of the appeal (e.g. appeal on the grounds of substantial violation of provisions of the criminal procedure, on the grounds of violation of criminal law, on the grounds of erroneous or incomplete determination of the factual situation, on account of the decision on criminal sanctions). However, it will always examine some elements ex officio.
Where only an appeal in favour of the defendant has been brought, the judgment may not be modified to the prejudice of the defendant in terms of the classification of the criminal offence and the criminal sanction imposed.
16.4 If the appellate court upholds the appeal, what powers does it have to remedy any injustice by the trial court?
In case of the substantial violation of provisions of the criminal procedure or in case of erroneous or incomplete determination of the factual situation, the appellate court could annul the judgment of the court of first instance and return the case for a retrial.
Secondly, if an appellate court finds that, although the material facts were properly determined, a different judgment in view of the factual determination and from the standpoint of a correct application of the law should have been passed, it could decide to modify the judgment of the court of first instance itself.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
