Marjeta Švab Širok
Higher Court judge
May 2014
EFFICIENCY OF CRIMINAL APPEAL PROCEDURES IN SLOVENIA
Slovenia has 2.060.805 inhabitants.
We have 925 judges.
There are 43 Local Courts (LC), 11 District Courts (DC), 4 Courts of Appeal (CA), oficialy caled Higher Courts, and the Supreme Court.
We have also two spezialised Courts – the Social and Labour Court and the Administrative Court.
The CA decide only about appeals.
Within the the iurisdiction of the CA in Ljubljana there are 19 LC's and 4 DC's.
The CA in Ljubljana has following judicial departments:
Criminal division
Civil division
Division for commercial dispute
Enforcement division
Division of offences
Department of alternative dispute resolution.
In the last year we have decided about appaels in 16.210 cases, decided by 75 judges.
In 70% of the cases the appael was rejected as unfounded and the judgement of the Court of the first instance was affirmed.
In 17% of the cases the judgement was annuled and the cases returned to the Court of first instance for retrial and new decission.
In 13% of the cases the judgements of the first instance were modified-
CRIMINAL PROCEDURES
The result in criminal cases is similar: :
in 68% of the cases the appael was rejected,
in 9% of the cases a retrial was ordered and
in 23% of the cases the judgement was modified.
At the criminal division of the CA in Ljubljana we have current 13 judges deciding in four penals and 4 legal assistats. We don't have a permanent »penal presiding judge«, this is rotating within the judges each month.
Last year we have taken decissions in 2.409 cases.
That means that in average each judge has decided 196 cases.
Within this there were 925 decissions about appeals against Judgements. In 177 of this cases the legal assistants, assisted the judge. That means they prepared the report and wrote a draft of the judgement. In 106 cases the defendants were in detention, that means that the decission should be taken within 3 months. In one case the decission was taken after a hearing before the CA.
All the other decissions were about rulings. In 67 of this decissions the judge was assisted by a legal assistant.
Time needed for decissions
Only in two situations the law gives exact time limits for taking the CA decissions:
- when detention was ordered by the penal of 3 judges (after the investigation judge disagreed) – 48 hours;
- EAW – 3 Days.
- order for enforcement of judgemen – 3 Days
All the other time limits are just instructive:
In the Judicial sevice act it is said that the decissions at the CA in criminal matters have to be taken:
- within 6 months
- within 3 months when the case is taken to the CA after a retrial
coming from practise ( for urgent cases )
– appaels about decissions of extention of detention – within the week the appael gets to the CA
- all rulings – about two months
the President of the CA in Ljubljana has given a written instruction about
- judgements if the defendant is in detention – 3 Months.
The Court President has a so called Template on his computer. The template is directly conected to all datas that are on the computers. In criminal cases we have most of the file on the computer. That enables the Court president, that he can for each judge under his jurisdiction see what cases he is working on, the time needed for the decission and also for writing the judgement.
The Minister of Justice has passed the Act on protection of right to a trial without undue delay. In this Act the parties are given the possibility to put a supervision appael to the Minister in order to expedite the court hearing in a concrete case. The Minister is given the motion to set a deadline for the Court hearing . With regard to this act the parties can also claim for financial satisfaction.
The judicial council gives also for each Court and division the so called »Norm«, namely »the minimum Number of cases a judge should decide within one year«, courently for an court of appeal judge working in the criminal division this is 130 appaels against first instance Court judgments.
In 2013 the average time for getting a decission at the Criminal divisinion of the CA in Ljubljana was less than 3 months (2,69).
Due to the fact, that in our country the last few years the fight of economic related crimes, such as serious fraud, corruption and others has being set priority, the number of cases that take more months for study has increased. At each time at least one such case is being appaeled, so at least one judge is working on such a case. That means that all the other cases have to be dealth by the other 12 judges
Others
In 2012 there was a significant change of the Criminal procedur Act.
The principle of »plea guilty« was lounghed in our criminal procedure. In such cases the grounds for Appeal are very limited.
Due to problems rised in practise regarding the admissibility of evidence it was determined, that the demand of exclusion of evidence, has to be put at latest at the hearing before the presiding judge, that has to be held before the main trial. The appeal against this ruling has to be decided by the CA
It was expected, that this changes would lead to less appaels before the CA.
But this expectation wasn't reached. We have quite many of appaels also in the cases where the defendant plead guilty (in 2014 until the 15th of May - 65). And we have many appaels against rulings regarding the demand of exclusion of evidence. Last year we had 105 such appeals.
C. JUDICIAL REVIEW PROCEDURE
Chapter Twenty-Three
ORDINARY LEGAL REMEDIES
1. Appeal against a judgement of the court of first instance
a) Right of appeal
Article 366
(1) The entitled persons may lodge an appeal against judgements passed in first instance within fifteen days of the serving of the copy of the judgement.
(2) An appeal filed in the proper time by an entitled person shall stay the execution of the judgement.
Article 367
(1) The right of appeal shall be accorded to the parties, defence counsel, the legal representative of the defendant and the injured party.
(2) An appeal in favour of the defendant may also be brought by his spouse or the person with whom he lives in domestic partnership, his relative by blood in direct line, his adopter, adoptee, brother, sister or foster parent.The period of time for appeal in this instance shall also start to run on the day the copy of the judgement was served on the defendant or on his counsel (fourth paragraph of Article 120).
(3) The public prosecutor may bring an appeal both to the detriment and to the benefit of the defendant.
(4) The injured party may only challenge a judgement with respect to the court decision on the costs of criminal proceedings; however, if the public prosecutor has taken the prosecution over from the injured party acting as prosecutor (second paragraph of Article 63) the injured party may appeal on all grounds on which a judgement may be challenged (Article 370).
(5) An appeal may also be brought by a person who has been dispossessed of an object (second paragraph of Article 69 of the Penal Code) or of proceeds of crime (second paragraph of Article 96 of the Penal Code), and by a legal person against which a decision on confiscation of proceeds has been issued (Article 98 of the Penal Code).
(6) Defence counsel and persons referred to in the second paragraph of this Article may bring an appeal even without a special authorisation of the defendant, but not against his will.
Article 368
(1) Persons entitled to appeal (article 367) shall be obliged to announce an appeal.They may announce an appeal immediately after the judgement is passed or after the instruction on the right to appeal (first paragraph of Article 362), but no later than within eight days of the date the judgement is passed, or of the day of service of the copy of the operative part of the judgement if they were not present at the announcement of the judgement (third paragraph of Article 362).
(2) If a person entitled to appeal fails to announce an appeal within the time limit prescribed, he shall, except in instances referred to in the fourth paragraph of this Article, be deemed to have waived the right to appeal.
(3) If none of the persons entitled to appeal (Article 367) announces an appeal, the judgement drawn up in writing need not contain a statement of grounds.In such instances, transcription of the audio record of the main hearing is also not necessary.
(4) If the accused has been sentenced to imprisonment, announcement of an appeal is not required.In this case, the judgement drawn up in writing must always contain a statement of grounds.
(5) Until the court of second instance issues its decision, the appellants may withdraw the appeals lodged.The withdrawal of an appeal may not be revoked.
b) Contents of appeal
Article 369
(1) The appeal shall contain:
1) indication of the judgement against which the appeal is lodged;
2) reason for challenge (Article 370);
3) statement of the grounds for the appeal;
4) motion to reverse the challenged judgement in whole or in part, or to modify it;
5) signature of the appellant in the end.
(2) If an appeal against the judgement is lodged by the defendant or any person referred to in the second paragraph of Article 367 of this Act, or by the injured party, the injured party acting as prosecutor or the private prosecutor who has no attorney, and the appeal is not drawn up in accordance with the provisions of the preceding paragraph, the court of first instance shall request the appellant to amend it within a specified time by a written submission or orally to be entered in the record at that court.If the appellant does not comply with the request and the appeal does not contain data from points 2, 3 or 5 of the preceding paragraph, the court shall dismiss it.If the appeal does not contain the datum from point 1 of the preceding paragraph, the court shall only dismiss it if it cannot establish to which judgement the appeal relates.If the appeal has been filed in favour of the defendant and it is possible to establish to which judgement it relates, the court shall nevertheless forward it to the court of second instance; if the judgement to which the appeal relates cannot be established the court shall dismiss the appeal.
(3) If an appeal against the judgement is filed by the injured party, the injured party acting as prosecutor, the private prosecutor who has an attorney, or the public prosecutor, and the appeal does not contain data from points 2, 3 or 5 of the first paragraph of this Article and it is impossible to establish to which judgement the appeal relates, the court shall dismiss the appeal.
(4) The appellant may indicate new facts and new evidence in the appeal, but shall be bound to give reasons for failing to present them earlier.In referring to new facts the appellant shall indicate the evidence by which these facts may be proved, and in referring to new evidence he shall indicate the facts which he intends to prove by that evidence.
c) Grounds on which judgement may be challenged
Article 370
A judgement may be challenged:
1) on the ground of substantial violation of provisions of the criminal procedure;
2) on grounds of violation of criminal law;
3) on the ground of erroneous or incomplete determination of the factual situation;
4) on account of the decision on criminal sanctions, confiscation of proceeds, costs of criminal proceedings, indemnification claims and the announcement of the judgement in the press and on radio or television.
Article 371
(1) A substantial violation of provisions of the criminal procedure shall be deemed to exist:
1) where the court was not properly constituted or the participants in the passing of the judgement included a judge or a juror judge who did not attend the main hearing or was excluded from adjudication under a final decision;
2) where a judge or a juror judge who should be excluded from participation in the main hearing participated therein (points 1 to 5 of Article 39);
3) where the main hearing was conducted in the absence of persons whose presence at the main hearing is obligatory under law, or where the defendant, counsel, the injured party acting as prosecutor or the private prosecutor was, notwithstanding his request, denied the right to use his own language in the main hearing and to follow the course of the main hearing in his language (Article 8);
4) where, in violation of law, the public was excluded from the main hearing;
5) where the court violated the regulations of the criminal procedure relating to the issue of whether there exists a charge by an authorised prosecutor, a motion of the injured person or the approval of the competent state agency;
6) where the judgement was rendered by a court which lacked subject-matter jurisdiction to hear the case, or where the court erroneously rejected the charge on the ground of subject-matter non-jurisdiction;
7) where the court in its judgement did not fully adjudicate the charges;
8) where the judgement rests on evidence obtained in violation of constitutionally granted human rights and fundamental freedoms, or on evidence on which, under the provisions of this Act, a judgement may not rest, or on evidence obtained on the basis of such inadmissible evidence;
9) where the limits of the charge were transgressed (first paragraph of Article 354);
10) where the judgement was passed in violation of Article 385 of this Act;
11) where the operative part of the judgement is incomprehensible or contradictory in itself or in contradiction with the reasons of the judgement; where the judgement lacks grounds altogether or reasons relating to crucial facts are not indicated or are completely vague or considerably inconsistent in themselves; or where there is considerable discrepancy between the statement of grounds relating to the content of documents or the records of statements given in the course of proceedings on the one hand and these documents or records themselves on the other.
(2) A substantial violation of the provisions of the criminal procedure shall also be seen to exist if in preparations for the main hearing or in the course of the main hearing or in rendering the judgement the court omitted to apply a provision of this Act or applied it incorrectly, or if the court in the course of the main hearing violated the rights of the defence, which act influenced or might have influenced the legality and regularity of the judgement.
Article 372
A violation of the criminal law shall exist if the criminal law was violated in respect of the issue of:
1) whether the act for which the defendant is prosecuted is a criminal offence;
2) whether circumstances exist which exclude criminal liability;
3) whether circumstances exist which exclude criminal prosecution and, in particular, whether criminal prosecution is statute-barred or excluded due to an amnesty or pardon, or the case has already been adjudicated by a final judgement;
4) whether in connection with the criminal offence tried an inapplicable law was applied;
5) whether in passing a decision on the sentence, suspended sentence or a judicial admonition, or in ordering a security measure or the confiscation of proceeds, the court transgressed its statutory right;
6) whether provisions were violated in respect of the inclusion in the extent of punishment of the period of detention and the period of an earlier served sentence.
Article 373
(1) A judgement may be challenged on grounds of an erroneous or incomplete determination of the factual situation where the court erroneously determined a material fact or omitted to determine it altogether.
(2) The factual situation shall also be considered as determined incompletely where so indicated by new facts or new evidence.
Article 374
(1) A judgement or a ruling ordering judicial admonition may be challenged in respect of a decision on punishment, suspended sentence and judicial admonition whereby the court, while not exceeding its statutory right (point 5 of Article 372) had nevertheless failed to mete out punishment adequately considering the circumstances influencing the determination of the amount of penalty; the aforesaid judgement or ruling may also be challenged in respect of the application by the court of provisions providing for the mitigation or remission of the sentence and for a suspended sentence or judicial admonition, and in respect of the failure of the court to apply these provisions even though statutory grounds existed for this. In the instance referred to in the third paragraph of Article 359 of this Act, a decision on punishment may also be challenged on the ground that the court did not make the right decision as to which penal institution the defendant should be placed in.
(2) The decision on a security measure or on confiscation of proceeds may be challenged on the grounds that the court, while not violating point 5 of Article 372 of this Act, had nevertheless passed this decision incorrectly, or failed to impose the security measure or the measure of confiscation of proceeds even though statutory grounds existed for this.
(3) The decision on the costs of criminal proceedings may be challenged if the court had determined these costs incorrectly or in violation of the provisions of this Act.
(4) The decision on indemnification claims and the decision on the announcement of judgement in the press, on radio or television may be challenged if the court had decided these issues in violation of the provisions of the law.
d) Appeal procedure
Article 375
(1) The appeal shall be filed with the court which rendered the judgement in first instance in a sufficient number of copies for the court and for the opposing party and defence counsel to reply to it.
(2) Belated (Article 389) and inadmissible (Article 390) appeals shall be dismissed by a ruling of the presiding judge of the court of first instance.
Article 376
The court of first instance shall serve a copy of the appeal on the opposing party (Articles 120 and 121) who may file a reply to the appeal with the court within eight days of the serving of the copy.The court of first instance shall send the appeal, the reply and all the related files to the court of second instance.
Article 377
(1) When the court of second instance receives the files with the appeal, the files shall be assigned to the reporting judge in accordance with the court rules.If a criminal offence subject to public prosecution is involved the reporting judge shall send the files to the competent public prosecutor who shall examine and return them to the court without delay.