Experiences of the Prosecution
4. Investigation as seen through the eyes of state prosecutors
Main participants in an investigation are: an investigating judge, the (authorised) prosecutor, the accused and a pre-trial chamber. Regrettably, the following paragraphs will focus, rather unsys-tematically since there is little objective information available, on the prosecution’s view of inves-tigation which is a typical judicial invesinves-tigation in Slovenia as mentioned above.
4.1. It is difficult to define the attitude of state prosecutors towards investigation as such or in general. On the one hand, it is a relatively mandatory phase in the proceedings and prosecutors are aware that they must request that an investigation be undertaken as soon as relevant condi-tions have been met. Prosecutors are expected to demonstrate that there is a sufficient probabil-ity that a criminal offence has been committed and that the accused is its perpetrator since in-vestigations, as opposed to preliminary investigation, may be conducted only against individual perpetrators.
4.2. The standard of proof for initiating an investigation (reasonable suspicion) is not controver-sial in principle. Problems occur because it has proved to be a fairly unstable category since prac-tice has not achieved to provide typical subject-matter for it. It is open to debate whether or not something like that is even possible in our criminal procedure. As a result, it seems that standards of proof are rather relative than absolute: reasonable grounds to suspect have to offer more than a reason to suspect, while reasonable suspicion has to offer even more – but what exactly is a ques-tion that is difficult to answer. For that reason, disputes over that issue are not rare.28
According to the current structure of investigation, a pre-trial chamber may assume the role of an arbiter in a dispute between the prosecutor and investigating judge. It can occur in prac-tice that the prosecutor and the judge enter into or conduct some type of negotiations, which
28 It should be stressed that disputes are not provoked only in cases when a decision needs to be made about initiating an investigation as such, but also in cases when the existence of reasonable suspicion, as some kind of a preliminary issue, is made part of the decision-making process concerning remand. Under the Constitution, there has to be reasonable suspicion as a condition for ordering remand in custody (Article 20). Since in most cases remand is ordered before initiating an investigation, the state prosecutor is obligated among other things to adduce evidence that there is reasonable suspicion, whereas the investigating judge has to find that there is reasonable suspicion if he is to order remand in custody lege artis. In some cases, a request for the protection of legality may be filed against a final decision on remand (Article 420, paragraph 4 of the CPC); as a result, the case law of the Supreme Court with regard to this matter is paradoxically richer when it comes to such, essentially incidental decision-making, than to actual decisions on launching investigations.
sometimes leads to prosecutor’s motion for conducting an investigation (and in consequence, a decision to initiate investigation) being amended without the involvement of the pre-trial cham-ber. Most often, amendments are made to the statement of facts of the offence, while other mod-ifications are rarer.29 Given the fact that the Code does not provide for such a solution, it seems that it cannot be supported for that reason alone.30 Moreover, such “negotiations” are conduct-ed somewhere behind the scenes, secretly, and in a non-transparent manner, conceivably even to the prejudice of defendants and even more likely to the detriment of other participants in the proceedings (for instance, the injured party).
However, nothing is that simple. In the first place, a situation can be conceived in which a pros-ecutor has made a mistake in his motion and a warning from an investigating judge could only be understood as a gesture of loyalty to one’s fellow colleague which serves to accelerate the pro-ceedings and to which no other meaning should be assigned. Nevertheless, often it is only a short step, sometimes in the wrong direction, from such a gesture to interfering in the content of the motion for conducting an investigation, which investigating judges are not allowed to take, but might wish just to demonstrate who is beyond the shadow of a doubt the true dominus li-tis. Sometimes, such negotiations are discernible from the case file, but more often than not they cannot be identified and we can only assume that they have been conducted. Even so, such situ-ations are not new and could have developed at any time in the past, up until the moment when the investigation as we know it today was legislated by the Code, which was why they had not been noticed.
If we disregard a possibility that they did exist but have not been reported, which seems less like-ly, a very realistic possibility is presented, namely that they should be assigned to the relationships between participants in the investigation which have recently been altered. Two changes seem worthy of consideration: the first one is the strengthening of the role of state prosecutors which has made them more aggressive in their motions for initiating investigations and thus more de-manding in their attitude towards investigating judges; the second one is a growing awareness of investigating judges that their role in the investigation is twofold – they are still investigators and at the same time judge-guarantors. From the point of view of its development, the focus of their function has been approaching their second role. If an investigating judge succeeds in convincing the state prosecutor to consider his objections, he will additionally strengthen his position even without the involvement of a pre-trial chamber.31
The third circumstance which in my judgement has brought about the shift in relationships be-tween prosecutors and investigating judges is of the most recent date: the introduction of nego-tiations into criminal procedure. By no means have negonego-tiations between an investigating judge and prosecutor been included in the Slovenian criminal procedure, certainly not, but the critical thing is that the philosophy underlying the proceedings has changed. Proceedings that used to
29 Usually, direct disputes do not arise about the issue of legal classification of criminal offences because judges are not bound by classifications set by prosecutors; however, in the above case, a legal classification may be changed indirectly.
30 On the other hand, some kind of a negotiation situation has long since been indicated by the institute of evidentiary hearing (Article 169, paragraph 3 of the CPC), which is hardly ever applied in practice.
31 The position of a pre-trial chamber as an arbiter in a dispute between an investigating judge and state prosecutor is rather unusual.
Even though we know when, why, and which model was followed when such a solution was adopted, I am convinced that the time is coming for a change. In my opinion, it would be possible to simplify the decision-making process in the investigation (if it remains as it is) and establish it by regulation on different grounds. A dispute may arise only between parties to proceedings, not between two state authorities. Such a dispute has to be resolved by a judge and if either party is not satisfied with his ruling, they must be guaranteed the right to appeal.
be manifestly unfavourably disposed towards any kind of negotiations have turned into proceed-ings which allow a broad scope for negotiations. In addition, negotiations have been given sur-prisingly favourable reception in practice. Therefore, it would not come as a surprise if their in-fluence started to spread across the limits set by the law. A definite opinion about the reasons why (secret) negotiations between state prosecutors and investigating judges occur cannot be formed until the phenomenon is examined in detail.
4.3. Investigating judges may sometimes set the requirements for initiating investigations too high. Usually, such exaggerations have been prevented early in the process by pre-trial cham-bers based on appeals from prosecutors; however, sometimes they were not prevented and crim-inal proceedings were not initiated. Recently, the state prosecution service has filed requests for the protection of legality in a number of cases and interestingly enough, the Supreme Court – al-most always in cases of economic crime – has adopted those requests and found that the law has been broken.32 An initiative was launched to amend the Code and allow prosecutors to file ap-peals which would be heard by a higher court, but it was not adopted.
And yet, it is not an end to the story. It happened in some potentially similar controversial cas-es that invcas-estigating judgcas-es started to deny motions for initiating invcas-estigations in order to al-low prosecutors the possibility to appeal before a higher court in the event of negative deci-sions by pre-trial chambers. We should be worried about the manner in which this situation has developed.
4.4. Investigations are often criticized for taking too long.33 Such an objection, even though it cannot be generalized about, should be seriously considered. Investigations into relatively com-plex cases actually last a very long time, in certain cases even years. Since there have been less and less investigations in simple cases, lengthy proceedings are becoming even more conspicu-ous. Precisely every participant in the investigation process is partly responsible for such a state of affairs: starting from crime detection authorities, then prosecutors who spend too much time on filing motions for initiating investigations, and finally to investigating judges. It is difficult to believe that an investigation can last several years due to objective circumstances, with excep-tional cases excluded (such as looking for the accused who is a fugitive, obtaining evidence from abroad, even though the procedure for mutual legal assistance in criminal matters has made con-siderable progress in recent years, then providing expert witness opinions in particularly compli-cated cases, and the like). Also, it is difficult to explain why so much time is spent not on investi-gative work in the narrower sense of the word, but on preparations and decision-making before investigations are initiated, as well as on making decision in the course of investigations. Cases in which the accused is in custody and investigations have to be completed within a time limit set in advance prove that things can be done differently.34 Prosecutors are mostly inclined to believe
32 Naturally, the judgement was a declaratory one (Article 426, paragraph 2 of the CPC), meaning that it was no longer possible to initiate criminal proceedings except if the prosecutor obtained new evidence (Article 409 of the CPC). Such a decision represented only a source of moral satisfaction for the prosecutor that he was right with regard to the motion for conducting an investigation; it served as a warning to the first-instance court that they had gone too far and as guidance in other cases for jurisprudence.
33 For more detailed information on the duration of investigations, see: Bošnjak, M. (ed.), “Potek kazenskih postopkov v Sloveniji”, Institute of Criminology at the Faculty of Law Ljubljana, 2005, as regards district courts, p. 109 and further.
34 It is true that lately there have been concerns that some more complex investigations into economic crime in cases when remand has been ordered cannot be completed within the maximum time limit (6 months), as defined by the Slovenian Constitution (Article 20, paragraphs 2 and 3). In particular, digital forensics has begun to cause delays in the process.
that too much time is lost on investigations and that they do not yield expected results. For that reason, they try to avoid them whenever possible.
4.5. In brief, it seems that prosecutors’ experiences in relation to the investigation are predomi-nantly negative; they are associated with its every stage, namely with its beginning or a motion for initiating an investigation, its course and time span, as well as with its conclusion. Many be-lieve that the investigation is more or less a waste of time for prosecutors, whereas defence at-torneys use it in the first place to establish which evidence prosecutors have obtained against defendant and to adapt their further actions accordingly. That is evident from the fact that de-fence attorneys mostly take a passive or reactive stance in the course of investigations, while ac-tive proposals are very rarely put forward by defence attorneys, actually they are the exception to the rule.
It is difficult to form an accurate picture of the investigation. Slovenian criminal procedure had for a long time been criticized for not allowing judgements of conviction to be pronounced un-der any conditions if the main hearing had not been concluded. Even when an investigation had been conducted resulting in a high degree of probability that a judgement of conviction would ensue, prosecutors had to file a charging document and the Court had to schedule a main hear-ing and adjudicate the case. This objection has been overcome by legislathear-ing the penal order, but the truth remains that penal orders with all of their advantages and disadvantages are for the mo-ment limited to summary proceedings35 and relatively mild criminal sanctions.
An essentially novel situation has arisen with the amendment CPC-K36 that legislated plea bar-gaining between the parties and allowed guilty pleas. At present, it is possible to conclude pro-ceedings without holding main hearings, even in cases of more serious offences37 and it seems that the investigation has risen in importance on account of that. This applies to both parties: at first glance, it applies more to defendants since they are in a position to judge more realistically the evidence gathered in the course of an investigation and weigh out the consequences of their decisions. As regards prosecutors, a successfully conducted investigation which results in a high degree of probability that a crime has been proven and that its perpetrator is guilty also creates a solid starting position for plea-bargain negotiations.38
Since it would seem that no radical turn will be made by introducing single preliminary proceed-ings in regulations governing criminal procedure in Slovenia in the near future, it would be wise to call for bringing needed improvements into the investigation within the scope of current reg-ulations and press for it to be adapted to our current needs.
35 The amendment CPC-M (in preparation) provides for extending the scope of the penal order to encompass some criminal offences that are otherwise prosecuted in regular proceedings.
36 This amendment was adopted in November 2011 (Official Gazette of the RS, no. 91/11), whereas it came into force in May 2012 in respect of plea-bargaining and institutes related to it.
37 Plea bargaining negotiations and agreements are allowed in Slovenia regardless of the seriousness of a criminal offence.
38 In particular if we consider initial information about plea-bargain negotiations which shows that they first take place at pre-trial hearings (and thus relatively late in the proceedings), whereas plea agreements concluded before that stage are fairly rare; virtually no plea agreement has been signed before formal proceedings are initiated even though they are allowed if certain conditions are met.
Aleksander Jevšek, MA1