The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) lodged a request for the review of constitutionality with the Constitutional Court of the Republic of Slovenia (US RS), since he believes that the arrangement of Article 169 of the Criminal Procedure Act (ZKP), which does not provide for the reply to the complaint of the state prosecutor against the decision of the pre-trial panel, with which the request for investigation was refused, is unconstitutional. In the Ombudsman’s opinion, in such cases the person whom the prosecutor demanded to be investigated should be enabled to state his or her position in relation to the lodged complaint prior to the decision of the Higher Court.
In the complaint considered by the Ombudsman, the investigating judge did not agree with the demand of the state prosecutor for investigation, therefore he demanded that the pre-trial panel decide on the matter. The mentioned panel refused the demand for investigation with a decision. The state prosecutor appealed against such ruling of the court. The Higher Court granted the appeal of the state prosecutor with a decision and opened an investigation against the complainant. In this proceeding, the court did not notify the complainant about the filed complaint and did not give him the opportunity to respond to it.
According to the ZKP, an appeal against decisions issued on second instance is excluded. When the investigating judge and the pre-trial panel previously do not agree with the opening of an investigation the accused is in a position deprived of the direct discretion of the higher court’s decision that allowed for the investigation based on the complaint of the state prosecutor. Hence, in the Ombudsman’s belief, it is all the more important that such a decision, which constitutes the beginning of a penal procedure and within it also a substantial intervention into the rights and interests of an individual, is adopted in a manner which guarantees an individual the position of a subject and not only the object of decision-making.
In general, in a procedure with a complaint against decisions issued based on this law, the ZKP does not predict contradictoriness within the meaning of informing the other party with the complaint and the possibility of preparing a response to it. According to the adopted position of the US RS, complete exclusion of a response to the complaint against the decision is unacceptable in the light of Article 22 of the Constitution of the Republic of Slovenia (equal protection of rights), “primarily when dealing with decisions with which the court decides on the merits about a matter or adopts a more important procedural decision”. Similar was emphasised by the Supreme Court of the Republic of Slovenia in its decision, i.e. that the accused must have an opportunity to give a statement about the complaint against a decision which “more significantly interferes with their rights or legal interests”.
A decision on the investigation can, in the Ombudsman’s opinion, undoubtedly belong among those decisions of the ZKP which more significantly interfere with the rights and legal interests of an individual or with which the court adopts a more significant procedural decision.
The law does not explicitly preclude the service of the complaint as a response to the counterparty, but it also does not impose it. In general, the Ombudsman warrants the possibility that individual courts or judges act in the manner that they notify the person, into whom the prosecutor has demanded an investigation, with the complaint of the prosecutor against the decision of the pre-trial panel. The actual case about which the complainant informed the Ombudsman does not confirm this. Namely, the complainant stated that the court did not notify him about the filed complaint, nor did it give him an opportunity to respond to it.
The positions of the US RS, which are adopted upon the substantive assessment of regulations, ensure the legal predictability and effective protection of human rights and fundamental freedoms. In the Ombudsman’s belief, Article 169 of the ZKP currently does not enable such predictability and effectiveness of human rights protection to a person into whom a prosecutor has demanded an investigation, since based on the law the person is not explicitly given a chance to be acquainted with the complaint and respond to it, and hence he also lodged the request for the review of constitutionality.
The Request for the Review of Constitutionality of Article 169 of the Criminal Procedure Act (ZKP; Official Gazette of the RS, nos. 176/21 – official consolidated version, 206/21 - ZDUPŠOP, 35/22 – US dec., 96/22 – US dec.) (full text)