The Concept of the Phase of Investigation and Slovenian Criminal Procedure Legislation 2
4. Positive and negative aspects of the phase of investigation
Seeking the truth
There is a definite advantage to the investigating judge in the fact that he is a judicial authority and not party to the procedure.31 In the prosecutor-based investigations we can rely much less on the prosecutor to secure the evidence which proves the innocence of the defendant. A prosecu-tor is a party to the proceedings with one definite goal: to discover, indict and secure the convic-tion of the defendant. His efficiency is measured in the number of convicconvic-tions. This puts him in the position when (even unintentionally) he might be blind to evidence testifying to the defend-ant’s innocence. This is not the case with the investigating judge.32 Although not being complete-ly impartial (due to his investigative role), he still searches for evidence in favour of the defendant either upon his own initiative (ex officio, Art. 171 CCP) or while hearing a motion of the defence (art. 177 (1) CCP). He is bound by the duty to search for the truth and to seek incriminatory and exculpatory evidence (Art. 17 CCP).
Confused double role
On the other hand, the investigating judge in Slovenia is put in a confused role: on the one hand, he has to investigate and on the other he is a judge of freedoms.33 Those two roles are psycholog-ically incompatible: it is impossible to be neutral and impartial on the one hand and be active-ly involved as an investigator on the other. Therefore, it is speculated that Slovenian investigative judges tend to be biased more to the prosecutorial side; namely, they identified more with their original investigative role.34 However, it is also impossible to deny that the awareness of their role as a protector of human rights has strengthened in the last decades.
29 In Slovenia, the average phase of investigation consists of interrogation of the defendant and 1-2 witnesses. Bošnjak concludes that the most common purpose of the investigation is securing the evidence for the trial and not the investigation of the case. M. Bošnjak, Potek kazenskih postopkov v Sloveniji, Pravna praksa, Ljubljana, 2005, pp. 422-423.
30 T. F. Kiely, Forensic Evidence: Science and the Criminal Law, CRC Press, 2006.
31 V. L. Schwartz, Party-Prosecutor vs. Neutral Judge d’instruction, Stanford University, 2007, p. 8.
32 As Jörg points out about systems with prosecution-run pre-trial procedure: “There is no investigating judge to seek out ‘the truth’
and, despite official rhetoric about impartiality and prosecution the concrete legal duties of the police and prosecution lawyer do not extend to seeking out exculpatory evidence.” N. Jörg, Are Inquisitorial and Adversarial Systems Converging? In Criminal Justice in Europe: A Comparative Study (C. Harding, ed.), Claredon Press, Oxford, 1995, p. 48
33 Z. Fišer, Predkazenski postopek. In: Izhodišča za nov model kazenskega postopka (K. Šugman (ed.)), Inštitut za kriminologijo, Ljubljana, 2006, p. 74-75.
34 Vogler speaks of judges performing the contradicting roles of investigators and impartial guardians of rights. R. Vogler, Reform Trends in Criminal Justice: Spain, France and England & Wels, Washington University Global Studies Law Review, V. 4, 2005, p. 633.
More equality of arms
The positive side of the phase of investigation is the fact that theoretically and in practice inves-tigating-judge-run phase has a tendency to be more transparent and to guarantee more rights to the defendant. As Tak points out for the Dutch concept of the phase of the investigation: “...there is a greater degree of equality of arms between the defence lawyer and a public prosecutor, and there are greater possibilities for the defence counsel to play an active role. Moreover, the judi-cial preliminary investigation tends to be more transparent and the suspect has more rights than during the pre-trial police investigation.”35 This is without a doubt true for the Slovenian concept as well: the investigating judge, not being a party to the procedure, has no immediate interest in conviction. In this respect he acts much more transparently and impartially than the State pros-ecutor. In the phase of investigation the defence also exercises numerous rights: the right to pro-pose evidence (Art. 177(1) CCP), the rights to be present while the interrogation of witnesses or experts is taking place (Ar. 178(4) and (2) CCP), during the crime scene investigation (178 (2) CCP). The defendant and his counsel can also pose questions to witnesses and experts during the hearing and give remarks to the record (Art. 178 (7) CCP).36 Those rights could be much more limited in a pre-trial procedure conducted by a State prosecutor.
Length of the procedure
Finally, one of the frequently criticized features of the phase of the investigation is its length.
Slovenian prosecutors tend to automatically refer the case to investigation even though it is fre-quently not necessary;37 they could easily proceed with the so-called direct indictment. Secondly, the interrogations conducted by the investigating judge are too frequently just a repetition of what was already taking place in the police station or could be easily repeated later on, at the tri-al. Some therefore argue that the phase of the investigation has become redundant.38
Slovenian criminal procedure system inherited its structure including the phase of the investi-gation and the dominus litis of that phase, the investigating judge from the Yugoslavian criminal procedure. Despite the fact that in last 20 years numerous steps have been taken to get closer to the adversarial model, the phase of investigation is still present. It is, however, losing its impor-tance and its role in the existing system. There are numerous reasons for this: firstly the newly in-troduced mechanisms of plea agreement and the pre-trial arraignment grossly diminished the importance of the phase of the investigation. Secondly, the possibility of the prosecutor to file the so-called direct indictment avoiding the phase of the investigation has been extended to more serious criminal offences. And thirdly, the role of the investigating judge has changed from an
35 P. J. P. Tak, The Dutch Prosecutor: A Prosecution and Sentencing Officer. In: The Prosecutor in Transnational Perspective (E. Luna, M.
Wade eds.), Oxford University Press, Oxford, 2012, p. 142.
36 The defence has similar rights in the Netherlands. P.J.P. Tak, The Dutch Prosecutor: A Prosecution and Sentencing Officer. In: The Prosecutor in Transnational Perspective (E. Luna, M. Wade eds.), Oxford University Press, Oxford, 2012, p. 143.
37 Data from before 2005 show that the phase of investigation was required in about 73,7% of all the District Court cases which seems far too much and proves the hypothesis of “automatism”. P. Mozetič, Učinkovitost ugotavljanja dejanskega stanja v slovenskem kazenskem postopku. In: M. Bošnjak, Potek kazenskih postopkov v Sloveniji, Pravna praksa, Ljubljana, 2005, p. 363.
almost exclusively investigating one to a function of a judge of freedoms. This structural change has contributed a lot towards the self-perception of the investigating judges. They increasingly perceive themselves as the ones who guarantee the rights of the defendants and less and less as in-vestigators. This psychological change, based on the legislative change, has also transformed the functioning of the investigating judges and heightened the sensitivity for the protection of hu-man rights in the pre-trial procedure. In the future we can expect that the phase of investigation along with the investigating judge will be abolished, since there are convincing professional ar-guments and strong political pressures for doing so.
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• E. Luna, M. Wade (eds.), The Prosecutor in Transnational Perspective, Oxford University Press, Oxford, 2012.
• M. Ploscowe, The Organization for the Enforcement of the Criminal Law in France, Germany and England, American Institute of Criminal Law and Criminology, V. 27, 1936, pp. 305-327.
• N. Jörg, Are Inquisitorial and Adversarial Systems Converging? In: Criminal Justice in Europe:
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• T. F. Kiely, Forensic Evidence: Science and the Criminal Law, CRC Press, Boca Raton, 2006.
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• L. Meintjes-Van der Walt, Pre-Trial Disclosure of Expert Evidence: Lessons from Abroad, South African Journal of Criminal Justice, V. 13, 2000, pp. 145-159.
• P. Mozetič, Učinkovitost ugotavljanja dejanskega stanja v slovenskem kazenskem postopku.
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