Several critical thoughts on the origins and basic structure of preliminary investigation and regulations which govern it

2.1. Those who still remember the Yugoslav CPC of 1977 and those who studied it are aware that its governing principle was that investigative activities should be conducted by the police (at that time referred to as: authorities of interior affairs), an independent administrative body. Police ac-tivities did not originally draw on the provisions of the criminal procedure law (or the CPC), but it was believed that they constituted an actual administrative activity of special type. As a result, the powers of law enforcement authorities concerning detection of criminal offences and offend-ers were rather suggested than specified.

Regardless of the above, the law enforcement authorities de facto had a very powerful position in the procedure. The first reason was the standard one, given the fact that the greatest power is concentrated in the hands of those to whom most of the information is available. The police can-not be rivalled in that regard and one should be aware of that. The impact of information collect-ed by the law enforcement authorities in the course of detection activities at the initial stages sur-passed by far the effect attributed to it by the legislator (grounds for decision by the prosecuting authority) and extended – sometimes directly, other times indirectly – to the final decision in a criminal case.⁴ The legislator should be held responsible for the second reason. The model he had conceived (a division of tasks and responsibilities, as well as excluding the police from criminal proceedings) was idealistic and could not function successfully, among other things owing to the fact that other participants in the proceedings – in particular the public/state prosecutor as the prosecuting officer – were too weak.

De iure, or more precisely, as conceived by the then legislator, the key authority in preliminary investigation was to be the prosecuting authority and that was the public/state prosecutor. His most important task was to decide whether or not he was going to bring criminal prosecution in

4 I would not elaborate on this issue if it did not also concern the central problem of the so-called latter-day reformed criminal proceedings. It is perhaps even more strongly manifest in them. As opposed to the previous situation in which the investigation, i.e. judicial stage in the proceedings was present in the basic structure of proceedings, located in between the investigative stage managed by the police and the trial, it is absent from the reformed proceedings. Schematically speaking, there is a direct transition from the stage of police investigation into a trial. This could explain why some speak in favour of referring to the initial stage in the proceedings as an investigation (which can be associated with judicial investigation from the point of view of terminology), thereby only just covering up the fact that the judicial inter-phase (which undoubtedly fulfilled the function of judicial oversight and thus of the guarantor) is actually gone.

a particular case. In principle, when making such a decision, he had to observe the principle of legality. Preliminary investigation was his investigation in a way or a procedure primarily con-ducted for his purposes. Such an investigation should provide or result in collecting a sufficient amount of information needed by the prosecutor to reach his decision. Information collected at that stage, as well as later in the course of proceedings, was used for the purpose of conduct-ing proceedconduct-ings.⁵ The preliminary investigation was (and in that regard it still is) a type of an in-formational framework of criminal proceedings initiated in connection with criminal offences prosecuted ex officio. The relationship between the police and the state prosecutor was the key re-lationship in the preliminary investigation.

From the very beginning, it was planned that there would be another participant in preliminary investigation on the side of the state – an investigating judge. His role, although less prominent with regard to the quantitative aspect of that stage, was essential, even though, at least initially, it was not possible to claim that it was clear to the legislator which decisions should be made by an investigating judge and to which end.⁶ In any case, we can assert with certainty that the leg-islator had not envisioned that stage as a judicial proceeding or as a proceeding under the con-trol of the court.

The above mentioned three-way relationship between the police, state prosecutor, and investi-gating judge was the true folie a trois. The police were independent in their actions and most-ly did not tolerate well anyone’s interference in their work. The police had developed a theory of the so-called separate success, which held that police’s task was to draw up a solid criminal charge, whereas other matters did not concern them. It was revealed in practice that the police had lacked knowledge of the procedural matter necessary for carrying out efficient investiga-tions (in terms of the direction which should be taken in each particular investigation, evidence that should be collected, the issues of substantive and procedural law which were decisive in each specific case, etc.) and that their experience with regard to procedural law was, understandably, (almost) non-existent.⁷ Supposedly, the “law” was to blame since it had left the police out of the criminal proceedings and deprived them of having any official influence thereon.

The Code had pushed back state prosecutors into the position of an office-based authority, ing them a type of armchair prosecutors. As previously mentioned, they were tasked with mak-ing decisions to brmak-ing prosecution, then issue indictments and represent them before the court.⁸ Police activities aimed at discovering perpetrators and finding evidence were of little interest to them, other than in exceptional cases, even though they had the right to set the course of prelim-inary investigation.⁹ A softer option for achieving balance in the relationship between the police and prosecuting authority was selected. The police remained independent and prosecutors were

5 In order to avoid misinterpretation, it needs to be stressed that this concerns more the information about sources of evidence, i.e.

information which can be used to obtain media probandi suitable to be used at the trial stage, than information obtained during the investigative stage that can be directly used in the trial.

6 However, the law still insists, in the manner of the good old Hans Gross, that in urgent cases investigating judges should take part in crime scene investigation, although it is widely known that such practice has been stopped in the overwhelming majority of cases and that the focus of actions taken by judges in preliminary investigation has shifted to entirely different tasks.

7 It is implied that this statement refers to criminal cases which are complicated in some respect (complex factual situations, borderline classifications of offences, high standard of proof) and to common crimes.

8 This is still the case; see Article 135 of the Constitution of the Republic of Slovenia (RS).

9 A provision governing public/state prosecutors’ right to direct the course of preliminary proceedings was included in the CPC when it underwent a wide-ranging reform of procedural law in 1967; see Article 44, paragraph 2, item 1 of the CPC (Official Gazette of the SFRY, no. 23/67).

given an opportunity to influence police work, although it was not planned that it would be un-der their (direct, operational) control.

At first, the role of investigating judges was pretty much up in the air. As we have seen, preliminary investigation had not been designed as their procedure. Over time, the competences related to the infringement of human rights and freedoms occurring in the investigative stage of the proceedings had begun to be associated with investigating judges, up until the moment when the proceedings would in any case come within their jurisdiction. Such an idea has never been systematically pro-vided for by the law, but truth to be told, up until this point, that pattern has already become so well-formed, fixed and clear that it has to be taken into account as reality. It can be seen from the meas-ure in which it has spread into that section of the Slovenian Code which should govern preliminary investigation¹⁰ and ultimately, from the title of a separate chapter in the Code.¹¹

The relationships that built between the three participants in preliminary investigation were rather interesting. Even though the closest and strongest relationship should have been estab-lished between the police and state prosecutors, that has not always been the case. That did not mean that there were not numerous promises of cooperation in principle or effective cooperation in specific cases, but there was no true “love”. The prosecuting authority faced difficulties when it came to instructing the police, which had impacts on various levels; the prosecution lacked both experience and knowledge needed to provide instruction and there were never enough prosecu-tors to deal with far more numerous police and the like. Paradoxically, when the process of giving instructions was concerned, it depended in the first place on those who needed to be instructed.

If the police failed to submit to the prosecution concrete and adequate information about a crim-inal offence, prosecutors could not – as simple as that – efficiently direct the police. Also, even when an effort was made to regulate the notification system, it turned into formalism, as we will see, because the very starting point was flawed. Instead of realizing that instructing the police what to do constituted prosecution’s right and that it was a process that was markedly related to the issue of quality (rather than quantity), there were attempts to regulate a number of technical details, which threatened to end in failure legislator’s perfectly sound idea.

For a long time, the Code had disregarded the role of the prosecutor as the prosecuting authority because it was obviously believed that stress should not be laid on prosecutor’s decision to bring criminal prosecution as his key and central role. In other words, procedure was definitely regard-ed as actions taken by public authorities rather than as adversary proceregard-edings or some small-scale version thereof. Instead of providing for a chain of decision-making that would clearly and without any exceptions start with the police, after which the prosecution and finally the judge would take over (when necessary), it was not rare that the Code simply overlooked the prosecu-tion and provided for or allowed direct communicaprosecu-tion between the police and judges.

However, such a situation was untenable because it created at least two essential dysfunction-alities: in the first place, the police had become an authority that instituted criminal proceed-ings (which the law aimed to prevent); also, it was equally wrong to consider such a measure as

10 Presently, there are 33 Articles in the chapter, some of which are several pages long. Practically, there has been no amendment without a new article being incorporated into it and new articles are also planned to be included in a forthcoming act (currently being drafted).

11 See Chapter XV of the CPC, whose title is Preliminary Investigation. This is the first chapter in the part two of the Code titled Preliminary Investigation. It is followed by Chapter XVI: Investigation.

judicial action by virtue of office since in such cases judges would take over the function of the prosecuting authority. In short, it was a non-systematic solution because under no circumstanc-es should it have been allowed that the authority which decided whether or not there would be criminal prosecution at all was left out or excluded from the decision-making process. A definite sign indicating that the actual situation with regard to that issue had become clear to the stake-holders was a decision by the Constitutional Court of the Republic of Slovenia (RS) on undercov-er investigative measures late in 1997.¹² The Constitutional Court found that, inter alia, the police might only give the initiative to the state prosecutor for such actions to be taken, but the prosecu-tor was the only one who could file a motion to such end to an investigating judge.¹³

It was also convenient for the police to communicate directly with investigating judges simply because their decisions acknowledged police endeavours to the greatest possible extent. An in-vestigating judge was not a demanding partner to the police since, as a rule, he could not request anything from them, in particular activities in terms of criminal prosecution: that would be out-side his jurisdiction. As opposed to this, state prosecutors did make demands to the police if they opted for directing them. With the aim of ensuring successful prosecution in the future, prosecu-tors usually demanded a lot from the police, more than they were willing to do.

2.2. As a challenge, I described preliminary investigation as a non-existent procedure some time ago. My intention in doing so was to draw attention to the fact that it was a stage in the proceed-ings which was not provided for or regulated by the legislator.¹⁴ Regulations to that end have been adopted over time and step by step. Actually, it was a phase that has always been present (investi-gative activities which followed directly after the perpetration of a crime), the only difference be-ing that legislators would, dependbe-ing on their own concept of criminal procedure, arrange it in this or that order, without providing for it by law in a systematic manner.

It was becoming evident that the position on strict division between detection and prosecu-tion was untenable. On the one hand, the amount of evidence collected in the course of prelim-inary investigation which had decisive effect on rendering decisions on the matter was increas-ing. Undercover investigative measures come to mind as they are routinely undertaken in the early stages of proceedings and can provide important if not crucial evidence for conviction.

12 Or on special operational methods and techniques as we used to call them. See a decision by the RS Constitutional Court, no. U-I-25/95 dated November 27, 1997. For more on this: Fišer, Z., “Posebne operativne metode in sredstva ter delitev procesnih funkcij v predkazenskem postopku”, PP, 1997, no. 17/18, pp. IV-VIII.

13 It came as a great surprise that only recently has the Constitutional Court of the RS rendered a decision by which it defined the same conditions for searches of residence. The law requires that the search of residence shall be ordered by the Court (as a rule), but it does not specify who can apply for it. For a long time, the case was that the police could apply for search warrants, even though such a solution was inconsistent with the system of procedural law since the police could not “go over the head” of the authority which decided whether or not criminal prosecution would be instituted at all. It would be equally inadequate if one presumed that a judge could order investigation ex officio because if that were the case, he would transform from the guarantor into a judge-investigator or even someone who fulfilled the function of the prosecution. Nowadays, it is clear that only prosecutors are authorised to apply for search warrants. What was interesting in this process was that prosecutors were not thrilled with the decision, even though it acknowledged their role in criminal proceedings. Truth to be told, prosecutors’ reservations were not a matter of principle, but they pertained to the fact that as a result, the volume of prosecutors’ work had increased considerably. Those matter-of-principle reservations emerged among prosecutors in the second half of the 1990s when the Constitutional Court decided that remand (and other restrictive measures imposed on persons and property) could be ordered only if an authorised applicant (state prosecutor) applied for it and that it could under no circumstances be ordered by the Court acting ex officio. It is evident from this very instance how slowly has the concept of an active role of the prosecuting authority in proceedings which are not established as adversary proceedings spread.

14 Even though the legislator knew that he had to regulate it. Thus, the chapter previously titled Criminal Charges was renamed by the legislator to Preliminary Investigation in the CPC passed in 1994. Ever since (or if truth be told, few of them existed before), provisions governing the activities of various authorities from the moment a crime is perpetrated to the moment a criminal case comes under the jurisdiction of the Court have started to be included in that chapter.

Some criminal offences are proven in such a manner with increasing frequency. In cases when evidence obtained during preliminary investigation can constitute grounds for a decision on the matter, the cooperation from the Court or Court’s actions are literally imperative. Subsequent ju-dicial control exercised at the trial stage may not suffice. Procedure that does not guarantee judi-cial control of decisive evidence at the time at which it emerges, at least as much as possible, can-not be considered fair criminal procedure.

On the other hand, measures which encroach upon human rights and freedoms may not be tak-en without a court decision. This refers in the first place to restrictive measures imposed on per-sons or property. Some of them are implemented later in preliminary investigation, in particular those pertaining to property (asset freezing). In terms of their contents, these actions are exten-sive and often time-consuming. From that perspective, custodial remand is fairly unproblematic in our legal system because the Constitution has already laid down a high standard of proof for it as well as that the Court has sole jurisdiction over it. It certainly does not mean that the legislator did not have difficulties with regard to its compliance with the Constitution.

And so, the preliminary investigation as we know it now has emerged gradually, as already noted, in a complex interaction between the legislator, theory and practice, and Constitutional Court decisions which have had a crucial influence on its structure. The manner of its emergence de-scribed above has without any doubt left a mark on Slovenian preliminary investigation: although the existing legal order manages somehow to fulfil its function, I would not take it as an example.

2.3. A decision whether or not to initiate criminal prosecution has traditionally been made inde-pendently by the prosecutor. The only corrective to his decision not to prosecute would be a po-tentially dissatisfied injured party who has been allowed to take over the role of the prosecutor as the so-called subsidiary prosecutor. By making a decision to bring criminal prosecution before a court of law, the prosecutor would subject his theory of the case to the judgment of the court.

If a prosecutor had decided to request an investigation – a solution provided for by the legislator as a common one in cases of criminal offences that have specific degree of seriousness – a crim-inal case came under the jurisdiction of the Court. When the investigation had been launched,

If a prosecutor had decided to request an investigation – a solution provided for by the legislator as a common one in cases of criminal offences that have specific degree of seriousness – a crim-inal case came under the jurisdiction of the Court. When the investigation had been launched,