Anti-Terrorism Related Criminal Law Reforms and Human Rights in Slovenia
After the break-up of the Former Yugoslavia in 1991, Slovenia adopted a new Criminal Code (CC) and Criminal Procedure Act in 1994, which came into force on 1 January 1995. Since then, CC has been amended several times. The Criminal Procedure Act was amended several times, mainly in the form of legislative changes and amendments as reactions to several decisions of the Constitutional Court of Slovenia. Recently, a new CC was adopted in a rather conspirative manner. It will come into force on 1 November 2008. A group of experts set up by the Slovenian Minister of Justice is also drafting a new Criminal Procedure Act. No complete draft is known to the (legal expert) public to this moment.
The Slovenian CC includes numerous incriminations on terrorism, the most general being Terrorism and International Terrorism. The act amending the Criminal Code from 2004 introduced a new incrimination Financing of Terrorist Acts. Slovenian CC includes some more special incriminations, which are adjusted to international conventions for the protection of air and sea traffic and persons under international protection. Beside these criminal acts, other articles are relevant, especially criminal acts related to nuclear and other types of weapons for mass destruction and criminal acts against life and physical integrity.
Although the legislation includes much useful incrimination, in its report on the evaluation of the Member States’ compliance with the Council Framework Decision of 13 June 2002 on Combating Terrorism, the European Commission emphasized some inconsistencies in Slovenian legislation. A report on the measures taken by all the Member States to comply with the mentioned framework decision, including Slovenia, was written by the European Commission in November 2007. Regarding the offences linked to terrorist activities, Slovenia currently completely fails to comply with the framework decision. Aggravated theft, extortion, and drawing up false administrative documents, all with a special view to committing one of the terrorist offences, are incriminated in the current CC, but the special aim of the perpetrator to commit these criminal acts to enable terrorist offences does not change the criminal act into an aggravated offence.
The newly adopted Criminal Code abandoned the division of internal and international terrorism and introduced a new classification. It regulates the incrimination of Terrorism, which includes terrorist acts against the Slovenian state and against other states and international organizations, Financing of Terrorist Acts, Public Provocation to Commit Terrorist Acts, and Recruitment and Training for Terrorist Acts. The criminal act of financing of terrorist acts remains punishable in the new CC and it also includes several special incriminations.
The Slovenian legal system does not recognize a special terrorist group, but it does include a more general criminal association. Generally speaking, this group complies with the definition of the terrorist group. Slovenian legislation also complies with the EU requirement that inciting, aiding, and abetting are punishable. It remains questionable, however, whether inciting is punishable in the current Slovenian CC. The newly adopted CC brings new solutions in the field of participation. It incriminates some new criminal acts, which are by their nature acts of aid, and also deals with new aspects of criminal association and brings new general rules regarding participation in criminal acts, which remain relevant for terrorist offences, because it still does not incriminate a special terrorist group.
Regarding criminal responsibility, the requirement of dolus directus is prescribed in the current and also in the new CC. The current CC demands direct intent with the special aim of jeopardizing the constitutional order or security of the Republic of Slovenia (with terrorism) or the special aim of inflicting damage on a foreign state or an international organization, compelling a legal person, international organization, or state to perform or to omit a certain act (with international terrorism). That excludes the use of dolus eventualis and demands even dolus coloratus; direct intention to commit these criminal acts, coloured with special aim. This is also true for the newly adopted CC.
The Slovenian CC introduced the liability of legal persons in 1994. It is regulated by a special act, the Act on Responsibility of Legal Persons. This act introduced a catalogue of criminal acts for which a legal person can be held responsible. Among these are also Criminal Association, Criminal Conspiracy, and Financing of Terrorist Acts, but not Terrorism, International Terrorism, and other more special criminal acts. The new CC keeps the legal basis for liability of legal persons; however, most important will be the amendment of the Act on Responsibility of Legal Persons, which will contain the amended list of criminal acts for which legal persons can be liable.
Regarding criminal procedural law, Slovenian theory observes that there are two general consequences in the field of criminal procedure due to an “efficient fight against terrorism” in all criminal legislations: an increase of power of authority by repressive authorities and a reduction of judicial control. In the course of criminal proceedings against defendants charged with a terrorist offence, the police, state attorney, and the judicial branch have numerous additional measures at their disposal, due to the dangerousness of the alleged criminal act. These measures are also those that infringe human rights (for example, the right to privacy and to personal liberty defined in the Slovenian Constitution) the most, for example, secret surveillance, metering, and monitoring and production order. Slovenian legislation in this field has already been amended according to the Constitutional Court case law. Consequently, it is in general compliance with criminal proceedings standards. In addition, in criminal procedures, authorities have not gotten any new special measures specific to the case of criminal act of terrorism, but general measures for the investigation and prosecution of serious criminal acts should be applied. Regarding the substantive rights (such as the rights to strike, to freedom of assembly, of association or of expression, to form and join trade unions, and to demonstrate), the core rule of substantive criminal law; rule of lex certa should be mentioned. It is defined in the Slovenian Constitution and in case law of the Slovenian Constitutional Court.
KeywordsEuropean Union Framework Decision Terrorist Group Criminal Offence Criminal Code
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