I. Slovenian Implementation of the Framework Decision

1. Definition

A basic precondition for the analysis of the victim’s position in Slovenian law is the definition of a victim. According to the EU Framework Decision, a victim is a natural person who has suffered harm, including physical or mental injury, emotional distress, or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State.¹ According to the Slovenian CPA, the injured party (the legal term for a victim from the viewpoint of criminal procedure) is the person whose personal or property rights have been violated or jeopardised.² According to the linguistic interpretation, this includes natural as well as legal persons who are directly damaged by crime. In cases involving a minor or the contractual incapacity of the victim, his rights are turned over to a statutory representative. Slovenian criminal law provisions are even broader than EU legislation with regard to the definition of a victim; however, some problems still exist. For instance, such a definition is still too narrow and excludes cases in which the victim of a crime is not a natural or legal person, but, for example, the environment. In such cases, representative or general NGOs or other associations representing certain areas of interest should be able to enforce a victim’s rights, e.g., the right to subsidiary criminal prosecution or to compensation. In my opinion, a victim should therefore be defined in a more abstract and broader way.

In Slovenia, a victim can cooperate in criminal procedure as a victim as such (injured party), as a private prosecutor³ for crimes, for which only private and not state prosecution is defined in the CC-1,⁴ or as a subsidiary prosecutor, for cases in which the state prosecutor decides not to prosecute a certain crime or decides to suspend prosecution during the criminal procedure. In these cases, the injured party can step in as a subsidiary prosecutor and consequently has all the rights that the state prosecutor does, except for those that he has as a state authority.⁵

The EU framework decision requires Member States to ensure that particularly vulnerable victims receive specific treatment.⁶ This demand has also been recognised in Slovenian law, especially with regard to children and/or victims of sexual crimes. Their specific position can be seen in criminal procedure as well as in substantive criminal law. In substantive criminal law, the statute of limitation becomes relevant in this regard. Normally, the statute of limitation starts to run from the point in time that a crime is committed. However, in cases involving crimes against sexual inviolability and crimes against marriage, family, or youth, or committed against a minor, it begins when the injured person becomes an adult (that is, when he turns 18 years old).⁷ From the viewpoint of criminal procedure, the special position of a child and/or victims of sexual crimes can be seen especially in their strengthened right to legal representation and special protection measures during their questioning in judicial investigation and also in trial. Normally, every injured party is entitled to legal representation but should cover the costs himself.⁸ However, when we are dealing with a minor who is a victim of crimes against sexual inviolability, neglect, or maltreatment of a child (Art. 192 of CC-1) or trafficking in human beings (Art. 113 of CC-1), the minor victim is required to have legal representation from the beginning of the criminal procedure (in Slovenian law, that usually means from the beginning of judicial investigation or from filing direct indictment in standard criminal proceedings). The legal representative protects the victim’s integrity during judicial questioning and takes care of the victim’s right to compensation. If a minor does not have such representation, the court appoints one to him from a list of attorneys. In criminal procedure, as well as during the phase of police investigation already, a minor who is an injured party also has a right to the presence of the person that he trusts most. Such a person can also be present for injured parties or victims of violent crimes who are not minors.⁹

When a minor is questioned, especially if he is the victim of a crime, he should be treated with special consideration in order to prevent negative effects of questioning on his psychological well-being. If necessary, the questioning of any minor should be performed with a help of a trained professional. When questioning a minor under 14 years of age, a person that he trusts can be also present.¹⁰ Similar provisions apply to the trial phase. If a minor is present at trial as an injured party (or also as a witness), he should be removed from the court as soon as his presence is no longer necessary. Also, direct questioning of minors under 15, victims of crimes against sexual inviolability, neglect, or maltreatment of a child (Art. 192 of CC-1) or trafficking in human beings (Art. 113 of CC-1) is not allowed in trial. The court should instead read official records from questioning in judicial investigation. Parties to the criminal procedure are allowed to pose indirect questions. The court can decide to demand that the investigating judge perform certain investigative acts to clear the facts of the case, including questioning a minor who is an injured party. This is performed according to the rules of questioning in judicial investigation.¹¹

2. Procedural Rights

The Member State should also safeguard the possibility for victims to be heard during proceedings and to supply evidence. Victims do have such rights in Slovenian law. During judicial investigation, the injured party as such has a right to call attention to all facts and to offer evidence relevant to establishing the commission of a crime, the perpetrator, and the compensation claims. At the trial, an injured party is also entitled to produce evidence, to pose questions to the witnesses and experts, to comment on and clarify their depositions, and to make other statements and motions. The injured party is also entitled to inspect the case file and the material evidence. However, he may be denied the right to inspect the case file up to the point at which he is questioned as a witness. The investigating and presiding judges are obliged to inform the injured party of these rights¹² as an injured party as such, as a private prosecutor or also as subsidiary prosecutor.

In order to be able to perform these rights, the injured party is allowed to be present during investigative acts in the phase of judicial investigation. Specifically, he is allowed to be present at inspection of the crime scene, the questioning of an expert witness and the questioning of a witness, but only if it is expected that the witness will not come to the trial. The investigating judge is obliged to inform the injured party of investigative acts in an appropriate manner.¹³ The injured party is also allowed to propose certain investigative acts to the investigating judge or to the police and even to pose questions if the investigating judge allows.¹⁴

The EU Framework Decision also requires the Member State to ensure that victims have access to a wide range of information of relevance for the protection of their interests.¹⁵ According to the Slovenian CPA, the investigating and presiding judges have a duty to inform the injured party of his procedural rights,¹⁶ and they need to ask him, when questioned as a witness, whether he would claim compensation or not.¹⁷

Also, the Act on Compensation of Victims of Violent Criminal Acts states that the police provide information on victims’ rights and their relevant relatives (right to compensation, paid directly by the State).¹⁸ The Act on Free Legal Aid defines initial legal advice as being an explanation to the applicant about his legal position and as brief advice on mediation, rights, and duties in the relevant proceedings, the authorities of the court, rules of procedure, costs, and forms of legal aid. However, this first legal advice is already considered part of free legal aid, and only those applicants (in our case, victims) are entitled to it who fulfil certain (especially financial) conditions.¹⁹

The next regulated right of a victim is the right to protection. With this, the Slovenian CPA enables the court to exclude the public from the trial or from part of it at any time ex officio or upon the motion of the parties. This is always after it has heard the parties, if required in the interest of protecting secrets, maintaining law and order, due to moral considerations, protection of the personal or family life of the defendant or the injured party, the protection of the interests of minors, and if, in the opinion of the panel, a public trial would be prejudicial to the interests of justice. The exclusion of the public does not apply to parties, the injured person, their representatives, and counsel. However, the presiding judge must warn those attending a trial closed to the public of their obligation to keep secret all information that comes to their knowledge at the trial, and he must inform them that disclosure of any secrets is a crime.²⁰

In addition, the protection of victims is regulated in the CPA in the same way as the protection of witnesses, since the injured party is usually also a witness to the crime. If the body or life of a witness, his close relative, or other defined person is in danger due to disclosure of his personal data or his whole identity, the court is allowed to enforce protective measures, e.g., erasure of certain data from the court file, tagging of these data as officially confidential, an injunction to keep these data secret, using a fictitious name for the victim, questioning with a help of technical measures (safe wall, deformation of voice, separate rooms, etc.).²¹ Such protective measures may be proposed by a state prosecutor, witness, injured party, a defendant, or their legal representatives. They can also be enforced ex officio by the court.²² The court can also decide to completely withhold the identity of a witness from the defendant and his legal representative under certain strict conditions.²³

Of relevance in this regard are also provisions on the questioning of a witness by means of videoconference in judicial investigation or also in trial.²⁴ This covers the Framework Decision’s requirement of protection of victims when testifying in a manner that will enable the protection of a victim by any appropriate means compatible with basic legal principles.²⁵

The Witness Protection Act is, of course, also relevant. It regulates conditions and procedures for witness protection and for the protection of other persons who are endangered due to their cooperation in criminal proceedings.²⁶ In this aspect, the Slovenian act is broader than the EU Framework Decision, which regulates only victim protection, whereas the Slovenian act also protects others.²⁷ The decision to include a person in a witness protection programme or to terminate it is made by the Commission for witness protection upon the proposal of a supreme state prosecutor. The Commission has four members: a Supreme Court judge, a supreme state prosecutor, a representative of the Ministry of Interior, and a representative of the Ministry of Justice. The Act precisely defines measures for witness protection, including psychological, social, and legal assistance, which is emphasised within this framework. This Act ensures stronger protection than that offered by the CPA, which guarantees protection only in judicial investigations and during trial.

The Framework Decision also requires a State to ensure that contact between victims and offenders within court premises be avoided, unless criminal proceedings require such contact.²⁸ Of special relevance are provisions on the questioning of witnesses in judicial investigations and later during trial, where rules of judicial investigation for the questioning of witnesses are applied.²⁹ The state prosecutor, the accused, and his defence counsel may usually attend the examination of a witness. The investigating judge, however, may order the accused to be removed from questioning if a witness is unwilling to testify in the presence of the accused or if circumstances indicate that the witness will fail to tell the truth in the presence of the accused or even in instances where a recognizance will be required after hearing the witness. The accused may not be present during the questioning of witnesses younger than 15 who are victims of any of the crimes referred to in the third paragraph of Art. 65 of the CPA.³⁰

3. Right to Compensation

According to the Framework Decision, a victim also has a right to compensation in the course of criminal proceedings if this is possible within reasonable time. In Slovenian law, this is ensured in many different forms. First, the injured party is already allowed to claim compensation during the criminal proceedings.³¹ This is called adhesion procedure.

Claims for compensation arising from the commission of a crime should be dealt with in criminal proceedings upon a motion by rightful claimants, provided that the determination of the claims does not significantly protract the procedure. A claim for compensation may consist of a demand for compensation for damage, the recovery of property, or the cancellation of a legal transaction.³² Such a motion can be filed by the person entitled to assert such a claim in a civil action.³³ The motion should be filed before the end of the trial at a court of first instance.³⁴ The court must examine the circumstances of concern for the determination of the compensation claim. If the inquiry into the compensation claim would cause an undue delay in criminal proceedings, the court limits itself to collecting the data that would be impossible or very difficult to determine at a later stage.³⁵ The court must decide on this claim in its judgement. It may, in returning a verdict of guilty, grant the compensation claim of the injured party in full or only in part and direct the injured party to sue for the remainder in civil proceedings. If the data collected in criminal proceedings do not provide a reliable basis to award either full or partial compensation, the court instructs the injured party that he may seek full satisfaction in civil proceedings. If the court passes a judgement by which the accused is acquitted of charges or the charges are rejected, or if it renders a ruling by which criminal proceedings are discontinued or the indictment is dismissed, the court instructs the injured party that he may seek to satisfy his compensation claim in a civil action.³⁶ In most cases, the court advises the victim to start the civil procedure and does not decide on the compensation claim itself, except in simple cases of recovery of property or compensation of damages.

The CPA provisions on compensation mean that the victim claims compensation directly from the defendant. In certain cases, however, the Act on Compensation of Victims of Violent Criminal Acts puts the victim in a better position. It in fact enables him to claim compensation from the State and the State later reclaims the costs from the defendant. In this way, the victim is in a much better position and is able to receive compensation more quickly than by claiming it directly from the defendant. A victim is entitled to compensation under formal and substantive conditions. According to formal conditions, the applicant should be a citizen of Slovenia or another EU State.³⁷ The substantive conditions are numerous: probable cause that a violent crime has been committed towards the applicant, if the crime in question was committed on the territory of Slovenia (including its ship or aircraft), if relevant authorities have been informed of this incident as being a crime, if no such circumstances exist for the applicant (according to which he would not be entitled to compensation according to the Civil Code³⁸), if the applicant suffered bodily harm, damage to health, or psychological pain due to this crime, if the applicant suffered harm (acknowledged by the Act on Compensation of Victims of Violent Criminal Acts and probability that the perpetrator would not be able to compensate the damages³⁹). If a crime results in death of a victim, rights to compensation are automatically transferred to the next of kin.⁴⁰

It is assumed that the perpetrator would not be able to compensate the damages if he still remains unknown three months after the notification of a crime to authorities and if it is still unknown at the time of the commission’s decision on compensation whether the applicant is a child, a disabled person, a victim of domestic violence, or whether the crime was committed on the territory of Slovenia but the applicant is a citizen of another EU country.⁴¹

The applicant is obliged to claim compensation in a criminal or civil procedure according to Slovenian law, except in cases in which it can be assumed that the perpetrator is unable to pay. If a victim starts civil or criminal proceedings, he is later still able to claim compensation from the State according to this Act, if the execution in civil or criminal proceedings is not successful.⁴² This Act acknowledges compensation for bodily pain or damage to health, psychological pain, the loss of alimony, the costs of medical treatment, funeral costs, costs for damaged medical equipment, and costs for enforcing the compensation.⁴³

A victim can also file a civil suit separately from criminal proceedings under the Act on Civil Procedure and Civil Code.

Each State should also take appropriate measures to encourage the offender to provide adequate compensation to victims.⁴⁴ In my opinion, provisions from the CPA on settlement procedure and conditional suspension of criminal procedure should be taken into consideration here. Indeed, according to the provision on mediation, the public prosecutor may transfer the report on or the summary indictment for certain crimes into the settlement procedure. Settlement may only be implemented with the consent of the suspect and the injured party. The settlement agent strives to ensure that the contents of the agreement are proportionate to the seriousness and consequences of the crime. Upon receiving notification of the fulfilment of the agreement, the state prosecutor dismisses the report.⁴⁵

Furthermore, the state prosecutor may, upon consent of the injured party, suspend prosecution of certain crimes if the suspect commits himself to acting as instructed by the state prosecutor and to performing certain actions to allay or remove the harmful consequences of the crime. These actions may also be elimination of or compensation for damage, payment of a contribution to a public institution, charity, or fund as compensation for damage to victims of crimes, the performance of community service, or the fulfilment of an alimony obligation.⁴⁶

In this way, the perpetrator is encouraged to compensate the damages. A similar approach can be found in the regulation for suspension of sentence.⁴⁷ The court can condition the suspension of sentence with the restitution of property gained through commission of the crime, the compensation for damages caused by the crime, or the performance of other obligations prescribed under CC-1.⁴⁸ However, the suspension of sentence can be revoked if the perpetrator does not fulfil these obligations.⁴⁹

According to the Framework Decision, a Member State should also return without delay the recoverable property belonging to victims that was seized in the course of criminal proceedings.⁵⁰ In Slovenian law on criminal procedure, this measure is defined as a temporary confiscation of objects and later, after conviction, as a safety measure concerning confiscation of property.⁵¹ Consequently, the judge must return the objects after the criminal proceedings are over, unless he has authorisation based on the CPA or the CC-1 to keep them. Therefore, when the perpetrator is convicted, the objects used, intended to be used, or gained through the commission of a crime may be confiscated if they belong to the perpetrator. Such objects can be confiscated even though they do not belong to the perpetrator (and instead to the victim) if this is required for reasons of general security or morality and if the rights of other persons to claim damages from the perpetrator are not thereby affected.⁵²However, the CPA states that objects that are pursuant to criminal law may or must seized and should be seized even when criminal proceedings do not end in a guilty verdict − if there is a danger that they might be used for to commit a crime or where it is required in the interest of public safety or due to moral considerations. A special ruling thereon should be issued by the authority before which the proceedings were conducted at the time they ended or were discontinued.⁵³ In my opinion, this regulation enables the return of non-dangerous objects to the victim, but not prior to the issue of judgement, if they are needed as a proof.

II. Conclusion

I believe that the Framework Decision on the Standing of Victims in Criminal Proceedings has been thoroughly implemented into Slovenian law, at least from the core criminal law point of view. Victims have numerous rights and possibilities in criminal procedure − as a victim, as a witness, and even moreso as a (subsidiary or private) prosecutor. Many of these rights were implemented into Slovenian legislation long before the above-mentioned EU Framework Decision was enforced. Due to EU legislation, however, a major amendment of witness protection legislation has taken place, which also includes the protection of victims as witnesses. In particular, witness protection is one of the main areas of Slovenian legislation on criminal procedure where EU legislation has resulted in major amendments (besides extradition, other international cooperation, and joint investigation teams). What remains unfinished, in my opinion, is the definition of a victim, but not from the perspective of EU legislation, since EU legislation is even narrower than Slovenian law in this respect.

Sabina Zgaga

Assistant, Faculty of Law, University of Ljubljana