114.     The heaviest disciplinary sanction against minors sentenced to the correctional measure of committal to a correctional centre is “committal to a special room for seven days”, as specified in article 209 of the ZIKS.[37]  This disciplinary sanction is pronounced by the warden of the correctional centre.  Prior to pronouncing this disciplinary sanction, the minor must be “questioned and his statement of defence examined” (article 209/II of the ZIKS).  This disciplinary sanction is pronounced in the form of a written decision (article 209/II of the ZIKS).

115.     Various secondary legislation regulations issued on the basis of the Criminal Sanctions Enforcement Act, and in particular the Regulations on the Enforcement of Prison Sentences (Ur. l. SRS No. 3/79) and the Regulations on the Enforcement of the Correctional Measure of Committal to a Correctional Centre (Ur. l. SRS No. 3/79), set out in detail the rights and obligations of offenders sentenced to different sentences.  The Regulations on the Enforcement of Prison Sentences include provisions which specify that the living premises of convicts must be “bright, dry, airy and sufficiently large” (article 24), that every convict must have “his own bed, equipped with a suitable mattress, two blankets, a pillow and an adequate number of sheets” (article 26/I), that the convict’s bedlinen must be “changed at least every 14 days” (article 26/II), that convicts must receive “a minimum of three daily portions of food:  breakfast, lunch and dinner”, that this food must be “fresh and varied, must include vitamins, must be tasty, and must be distributed in suitable dishes with suitable knives, forks and spoons” (article 29).  In addition, the exerting of pressure by groups or individuals on other groups or individuals, and mutual confrontation or intimidation, abuse, insults, humiliation or contempt”, etc. are not allowed (article 66).  The Regulations on the Enforcement of the Correctional Measure of Committal to a Correctional Centre similarly set out that minors’ free time must be organized in such a way that “they spend enough time outdoors, including walks, sports and other activities”, etc. (article 14).

116.     In the Republic of Slovenia only the criminal sanctions which meet the above legal criteria are permitted to cause any “pain or suffering which results from legal sanctions exclusively and which is inseparable from these sanctions or is caused by these sanctions”; such pain and suffering (excluded by the concept of “torture” within the meaning of the Convention) is explicitly permitted by the last sentence of article 1/I of the Convention against Torture.

(f)

117.     The special administrative provisions on the deprivation of liberty are incorporated in Slovene positive law governing the procedure of the expulsion of foreign persons.[38]  Article 28 of the Foreign Persons Act (Ur. l. RS No. I - 1/91, 44/97) specifies:  “(…) For foreign persons who reside in the Republic of Slovenia illegally and who, for whatever reason, cannot be immediately removed but there is a suspicion that they will attempt to evade the measure, the national administrative body responsible for internal affairs shall order that they reside in the transitional centre for foreign persons, but for no longer than 30 days.  For foreign persons who, due to objective circumstances, cannot immediately leave the Republic of Slovenia, the national administrative body responsible for internal affairs may order that they reside in some other place of residence”.  Separately, with respect to minors, article 29 of the same act specifies:  “The apprehending of a foreign minor who has arrived in the Republic of Slovenia without a valid travel document and without the knowledge or permission of his lawful representatives, or who has remained without special protection, supplies and means of survival, or who has failed to act in accordance with the regulations of the Republic of Slovenia, shall be immediately reported by the authorized officials of the internal affairs agency to the diplomatic/consular representative office of the country of which the minor is a national, or to the security bodies of a neighbouring country; the minor shall be handed over to the body responsible for social care based in the municipality in which the minor was apprehended.”  Under the provision of article 30, “in the event that it is not possible for the minor foreign person referred to in the preceding article for whatever reason to be immediately extradited to the body of the country of which he is a national, the body responsible for social care shall place the minor in the transitional centre for foreign persons, in the department for minors”.

(g)

118.     Legal protection against different forms of abuse in medical activities, relevant to the Convention against Torture, is contained in different legal acts in Slovenia.

119.     Articles 64-66 of the Penal Code of the Republic of Slovenia set out the criteria for the pronouncement of forced treatment as a penal sanction (the security measures of compulsory psychiatric treatment and care in a health institution, compulsory psychiatric treatment in the community, and the compulsory treatment of alcoholics and drug addicts).

120.     The text of article 64 of the KZRS reads:  “(I) Compulsory psychiatric treatment and detention shall be ordered for a perpetrator who commits a criminal offence in a state of insanity or diminished responsibility, if, given the gravity of the offence and the gravity of the perpetrator’s mental disturbance, the court has ascertained that the perpetrator might commit serious criminal offences against life, limb, sexual integrity or property if he were at liberty and that such danger can be avoided only by means of medical treatment and detention in a health institution.  (II) The discharge of the perpetrator from the health institution shall be ordered by the court upon its determining that treatment and detention are no longer necessary.  After the lapse of each consecutive period of one year, the court shall decide whether further treatment and custody are necessary.  (III) The measure outlined in the first paragraph of the present article may be ordered for a perpetrator deemed to be not responsible for his actions for a period not exceeding 10 years.  (…)”.

121.     The text of article 65 of the KZRS reads:  “(I) Compulsory psychiatric treatment in the community shall be ordered for a perpetrator who commits a criminal offence in a state of diminished responsibility when the court has ascertained that such a measure is necessary and represents a sufficient guarantee that he will not commit further serious criminal offences.  (…) (III) Compulsory psychiatric treatment in the community may be ordered for a period not exceeding two years.  After a period of one year, the court shall consider whether further compulsory psychiatric treatment is necessary.  (IV) If the perpetrator is not willing to undergo treatment in the community, if he gives up the treatment of his own free will or if the treatment does not prove successful, the court may, under conditions outlined in the first paragraph of the preceding article, order the measure in question to be exercised in an appropriate health institution.  In such a case, the period of treatment may also not exceed two years.  After a period of one year, the court shall consider whether further compulsory treatment is necessary.”

122.     The text of article 66 of the KZRS reads:  “(I) The court may order compulsory medical treatment for a perpetrator who committed a criminal offence due to his addiction to alcohol or drugs and is deemed likely to commit further offences.  (II) The measure outlined in the preceding paragraph may be carried out in a penal or health institution.  Time spent in the health institution shall count towards the serving of the sentence.  (III) When pronouncing a suspended sentence, the court may order the perpetrator to submit himself to treatment at liberty, whereby, in particular, his willingness to do this shall be taken into account.  If the perpetrator either does not commence his treatment with good reason or gives up the same of his own free will, the court may revoke the suspended sentence.  (IV) If the measure in question has been ordered in addition to a sentence of imprisonment, it may be exercised for as long as the sentence is served, while if it has been ordered within the terms of a suspended sentence, it may not last for more than two years.”

123.     “A juvenile offender who has suffered disturbance in his physical or mental development shall be committed to an appropriate training institution (...).  The court may order such a measure in place of compulsory psychiatric treatment and detention in a health institution if the necessary treatment and detention of the offender can be provided in the institution and the purposes of the security measure in question can thereby be achieved.  The offender shall stay in the institution as long as is necessary for his training, treatment or detention, but for not more than three years.”

124.     This, among other things, is specified by article 81 of the KZRS.  The enforcement of this correctional or correctional/security measure is set out in more detail in articles 213 and 214 of the ZIKS.

125.     Special mention needs to be made of the provision of article 108/II of the KZRS, under which “medical or psychological methods or methods of reform which interfere with the offender’s personality and whose implementation the offender repudiates with just cause shall not be allowed to be implemented”, as well as the provision of article 155 of the ZIKS which, with respect to the security measure of compulsory psychiatric treatment and protection in a health institution, specifies:  “In the case of persons against whom the security measure of compulsory psychiatric treatment and protection in a health institution is being implemented, only those restrictions relating to movement and contact with the outside environment shall be permitted which are necessary for their protection and treatment”.

126.     In the Republic of Slovenia only compulsory treatment, as a criminal sanction (safety or correctional or correctional/security measures), which meets the above legal criteria is permitted to cause any “pain or suffering which results from legal sanctions exclusively, and which are inseparable from these sanctions or are caused by these sanctions”; such pain and suffering (excluded by the concept of “torture” within the meaning of the Convention) are explicitly permitted by the last sentence of article 1/I of the Convention against Torture.

127.     According to the valid legal system of Slovenia (Healthcare Activities Act - Ur.1. RS Nos. 9/92, 37/95, 8/96), forced medical treatment is, in principle, not permitted (article 47).  The free consent of the patient is an indispensable condition for a medical intervention to be legal.  The only exceptions are cases in which doctors, in the interests of the patient’s health, may (or even must) conceal specific facts from the patient’s medical documentation (“discreet silence” according to article 47/I); this kind of patient consent is legally valid although, due to insufficient information, it cannot be considered free.  Furthermore, there are proxy consents where, on behalf of persons aged under 15 and persons in custody, consent is given by their parents or custodians (article 47/II), urgent medical interventions (article 48 in accordance with the criteria of extreme necessity set out by criminal law - article 12 of the KZRS), and cases of patients “who, as a result of their mental disease, threaten their own lives as well as the lives of other people, or cause damage to themselves or other people” (article 49/I).  The latter categories of patients are, for obvious reasons, particularly problematic from the point of view of the Convention against Torture.

128.     Slovene positive law regulates the material (substantive) conditions for forced detention and treatment in a psychiatric health institution outside criminal proceedings in the Non-Contentious Proceedings Act (Ur. l. RS No. 30/86).  Chapter 7 of this act sets out in detail the procedure for the detention of persons in psychiatric health organizations, and when these persons are not dealt with in criminal proceedings, the provision of article 70 defines the material conditions for detention:  “when these persons, due to their mental disease or state of mental health (…), threaten lives or cause serious damage to themselves or to other people”.

129.     Forced detention (under article 71/III of the Non-Contentious Proceedings Act) is also deemed to be an act where “from the behaviour (of the detained person), expert findings on this person’s state of mental health and other circumstances, it is clear that this person can express his own free will but does not want to undergo treatment in a health organization, when this person cannot express his own free will, or when the act involves a minor or a person who has been

deprived of his capacity to do business”.  The law permits such detention only in extreme cases, when the possibilities for resorting to less radical encroachments on the patient’s rights in order to achieve the objectives have been exhausted.

130.     Valid Slovene law also incorporates various procedural legal systems of supervision of the legality of the implementation of forced medical treatment.  These include criminal law and civil non-contentious, as well as administrative legal proceedings.  The ZKP sets out in detail the procedure in cases where the security measures of compulsory psychiatric treatment and protection in a health institution or compulsory psychiatric treatment in the community for mentally-incapacitated perpetrators of criminal offences are pronounced.  Under article 491/II of the ZKP, the defendant must, in all such cases, have a defence counsel from the time of the submission of a proposal for pronouncing the security measure of compulsory psychiatric treatment.  Under article 492/II of the ZKP, psychiatric experts must be present, and the defendant’s immediate relatives must also be summoned:  the spouse, the parents of the defendant and, possibly, other close relatives as well.  The defendant shall be summoned if his condition permits his attendance at the trial.

131.     Article 496 of the ZKP sets out the procedure for the supervision of the enforcement of these security measures, and the extension or cancellation of these measures:  “The court of original jurisdiction which pronounced the security measure of compulsory psychiatric treatment and custody of the perpetrator in a medical institution, or the compulsory psychiatric treatment of the perpetrator at liberty, shall, ex officio or upon the motion of the medical institution and on the basis of the opinion of specialists, adopt all further decisions in respect of the duration and modification of the measure referred to in articles 64 and 65 of the Penal Code of the Republic of Slovenia”, states the provision of article 496/I of the ZKP.  Under paragraph III of the same article, the perpetrator must have defence counsel during the procedure.

132.     Article 49/II of the Healthcare Activities Act demands that the admission of a patient who, without his consent, was directed or admitted to treatment in a psychiatric hospital (because he threatened his own life or the lives of other people, or caused damage to himself or to other people due to his mental disease) “must be reported by the authorized person of the hospital to the court of jurisdiction within 48 hours of admission”.[39]  The Non-Contentious Proceedings Act sets out in detail the ex-officio judicial supervision of involuntary detention in a (psychiatric) health institution.  Within this procedure the court must, as soon as possible, question the detained person ex officio, unless the questioning would damage his health or if, given his medical state, this is not possible[40] at all (article 74).  The court must also question the doctors in charge of treatment and “other persons who can provide data on the mental state of the detained person” (article 75/I), and must order “that the detained person be examined by a specialist psychiatrist from another health organization” (article 75/II).  No later than 30 days from the receipt of notification by the authorized person of the hospital on the detention of the patient for psychiatric treatment, the court must issue a decision on this matter.  If it orders detention, this detention may last one year at most (article 76/II).  This decision must be submitted to the detained person, his representative (if he has one), his custodian, the social care body and the health organization (article 77/I).

133.     In the procedure of forced detention and treatment in a health institution outside criminal proceedings (that is, in accordance with the Healthcare Activities Act and the Non-Contentious Proceedings Act), a legal representative is not obligatory in Slovenia.

134.     On 4 April 1997 the Republic of Slovenia also signed the “Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine” (Council of Europe, 1997).

2.

135.     There are a number of other pieces of primary and secondary legislation in Slovenia which, in one or another way, touch upon issues relating to torture and other cruel, inhuman or degrading treatment or punishment.  In the area of national defence, for example, the Defence Act specifies in various places that all forms of military and civil defence are based on and carried out in accordance with the principles of the international military code and adopted international obligations (article 4 and, in a similar way, article 7/II).  Article 43/VIII further sets out that:  “No one may issue a command or be under an obligation to carry out an order if it is obvious that by doing so he would commit a criminal offence or violate the provisions of the international military code”.  Separately, it stresses that “military personnel shall be criminally liable under the Penal Code of the Republic of Slovenia” (article 56/I).[41]  The provision of article 57, with respect to violations of military discipline, additionally qualifies as disciplinary offences:  “offensive or violent behaviour towards subordinates, superiors or military personnel of the same rank, or towards civilians”.

136.     There are even more details contained in the Rules of Service in the Slovene Armed Forces (Ur. l. RS No. 49/96); according to point 2 of the rules, they apply to all persons performing military service in the Slovene armed forces (both professional and non-professional military persons).  Point 6 includes the rule that military persons must “respect the person, human rights and basic freedoms of all members of the Slovene armed forces in accordance with the Constitution and statute, (and) respect the human rights and basic freedoms recognized by basic United Nations acts, as well as the human rights and basic freedoms recognized by international military law”.  Under point 15, members of the Slovene armed forces are bound, in carrying out military tasks in peacetime, “to consistently comply with international military and humanitarian law”, while under point 21 “military persons must act in accordance with general moral principles”.  Under point 22, “with their example and work, military persons shall positively influence their subordinates”, while under point 25, “superiors and subordinates (...) shall express mutual respect and mutual trust”, “relations between military persons, respect for superiors and subordinates and civilian persons in the Slovene armed forces shall be based on the general principles of civil society”.  Under point 28, “military persons shall consistently respect human rights and basic freedoms, and the principles of international military and humanitarian law”, and “any action in contravention with these principles shall be deemed dishonourable and in contravention with the interests of the Slovene armed forces and national defence”.

137.     As for workers at internal affairs agencies, article 6/I of the Internal Affairs Act states:  “In performing tasks under their jurisdiction, workers of internal affairs agencies may use only those coercive measures which are determined by law and which achieve the execution of official tasks with the most harmless possible effects on citizens.”

138.     The SRS Rules for Exercising the Authorizations of Authorized Persons of Internal Affairs Agencies (Ur. l. SRS No. 44/88) - a particularly comprehensive act comprising 485 articles - sets out in detail police authorizations and the authorizations of members of other services within the RS Ministry of the Interior “whose work is directly linked to the carrying-out of operative tasks” (article 41/I).  Article 6 specifies:  “In performing tasks under their jurisdiction, authorized persons may use only those coercive measures which are determined by law and which achieve the execution of official tasks with the most harmless possible effects on citizens (...).  Persons with whom authorized persons come into contact while carrying out their tasks must be treated considerately and attention must be given to ensuring that authorized persons do not harm their honour and good name, affect their personal dignity, alarm them unnecessarily, or impose unnecessary obligations on them.”

139.     Article 45/I (3) of the State Administration Workers Act (Ur. l. RS No. 15/90), which governs the obligations of workers employed in state administration, including inspectors, deems the following to be one of the major violations of work duties:  “indecent, offensive or in other ways improper behaviour towards (...) parties in procedures at a State body”.  Those who violate this provision are liable to dismissal (article 45/II).

140.     By the nature of the matter itself, a typical potential threat to the human rights of socially‑disadvantaged people, including the possibility of torture and other cruel, inhuman or degrading treatment or punishment, is posed by the relation between holders of academic authority and children in schools, particularly within the framework of compulsory schooling.  The Slovene Organization and Financing of Schooling and Education Act (Ur. l. RS No. 12/96) and the School Inspection Act (Ur. l. RS No. 29/96), for example, contain a number of provisions that can be understood as instruments of protection against this type of severe encroachment on the human rights of the child.  The provision of indent 2 of article 2 of the Organization (...) Act declares that “the aim of schooling and education shall include the observation of children’s and general human rights and basic freedoms”.  Article 35 of the same act requires that schools and nursery schools which carry out publicly-valid programmes shall be entered in a special register (record) at the RS Ministry of Education and Sport, and shall be deleted from the record “if they have been banned from carrying out a publicly-valid programme with a legally-valid decision”, including and in particular in cases in which this ban has been pronounced due to violations of the rights of a child.  Under article 36 of the same Act, the same applies to deletions from the register (record) of private entities which carry out educational activities (this register is also prescribed to be kept at the RS Ministry of Education and Sport).

141.     Indent 1 of article 8 of the School Inspection Act requires a special administrative procedure (including an expert in educational issues) if there is a suspicion of the violation of the rights of a child.  Under article 9 of this act, the annual report by the chief national schools inspector, which describes the work of the inspectorate and which the chief inspector is obliged to submit to the RS Minister of Education, must contain a “general assessment of the situation with regard to the observation of the lawfulness and protection of the rights of children and of participants in the educational process, as well as professional workers in nursery schools and schools, data on ascertained violations, pronounced measures and the enforcement of these measures, and data on the number of inspections carried out by individual nursery school and school”.  If a school inspector determines that the rights of a child have been violated, he must, under article 14 of this act, notify the founder of the nursery school or school of the ascertained violations and of special measures for eliminating these violations, and propose the introduction of a procedure against these violations, or even a criminal procedure.  The inspector must pronounce the measure of suspension from work for the perpetrator if there is a well-founded suspicion that he has committed an offence by “subjecting children or participants in the educational process to physical violence”.

142.     Similar legal provisions which explicitly or duly refer to the prohibition of torture and other cruel, inhuman and degrading treatment or punishment within the meaning of the Convention against Torture can be found in the Slovene legal system in the following general and abstract legal acts at the lower level:  “Instruction on the Use of Coercive Means (Ur. l. SRS No. 25/81, amended by Ur. l. RS Nos. 79/94 and 3/95); “Regulations on the Implementation of Tasks of Authorised Officials in Correctional Institutions” (Ur. l. SRS Nos. 3/79, 2/83, 23/87, amended by Ur. l. RS No. I - 10/91); “Regulations on the Execution of the Correctional Measure of Committal to a Correctional Centre”; “Regulations on the Enforcement of Prison Sentences”; “Instructions on the Treatment of a Minor Who is Evading the Execution of a Correctional Measure” (Ur. l. SRS No. 12/79); etc.  Legal acts of an expressly internal character which are not published in the official gazette and which contain explicit or implicit rules regarding the prohibition of torture and other cruel, inhuman and degrading treatment or punishment within the meaning of the Convention against Torture comprise:  “Rules on Police Stations” (act issued by the RS Ministry of the Interior); the prison rules for various institutions for the enforcement of criminal sanctions (prepared by the institutions themselves and approved by the RS Ministry of Justice); various instructions by the ministers of defence, of the interior and of justice; and, last but not least, various ethical codes issued by workers engaged in a number of different professions (health workers and police workers, for example).

143.     (See the report on article 13 of the Convention against Torture below for a separate discussion of the individual possibilities for appeal with respect to potential torture and other cruel, inhuman and degrading treatment or punishment.)

144.     (See the report on article 11 of the Convention against Torture below for a separate discussion of the systematic official supervision of the situation in practice with respect to the interrogation and guarding of persons deprived of freedom of movement, and a discussion of the treatment of these persons in general.)

3.

Statistics and specific features in practice

145.     (See the special appendix to this report (Source:  National Statistical Office) for details on criminal statistics for 1996 as compiled by the National Statistical Office.)

146.     (See the special appendix to this report (Source:  RS Ministry of the Interior) for details on criminal statistics for 1996 as compiled by the RS Ministry of the Interior.)

147.     It appears worthwhile to include in this report a summary of specific important facts from the official reports issued by individual executive authority bodies of the RS, in particular by ministries, on the practical interpretation and implementation of the Convention against Torture.

(a)

148.     Separately, in relation to the deprivation of liberty until a legally-valid ruling or misdemeanours decision is issued, it is worth stressing the well-established practice of internal affairs agencies according to which detained persons are enabled (both technically and, if necessary, financially) to contact their defence counsel by telephone if they so require.  If they do not know any defence counsels, the official of the relevant internal affairs agency provides them with a written list of lawyers whose head office is in the area in which the order on the measure of detention has been issued (Source:  MNZ RS).

149.     The decision on detention, which in accordance with the ZKP is issued by internal affairs agencies, is standardized in terms of form.  It contains data on the agency which ordered detention and issued the decision, detailed personal data on the detained person, the duration of detention (the beginning and the end of detention expressed in hours and minutes), the reasons for initiating detention or the reasons for custody, an explanation of the decision, legal instructions on the rights of the detained person in accordance with the ZKP, data on whether the detained person required a defence counsel, the time of arrival of the defence counsel, the possible appointment of a defence counsel by the internal affairs agency, data on the method, time and level of success of informing those persons whom the detained person wished to inform, a special legal instruction in relation to the issued decision, the signatures of the issuer of the decision and the detained person, and data on the date and exact time of delivery of the decision to the detained person (Source:  MNZ RS).

150.     According to the ZKP, authorized officials do not routinely check whether the detained person enjoys the status of a person with deputy immunity (National Assembly deputy, National Council councillor) or the status of a person with diplomatic immunity.  These statuses are observed only if the detained person refers to them separately or if they are otherwise clear.

151.     According to the ZKP, detained persons shall not unnecessarily and intentionally be exposed to rain, extreme sunshine, heat, cold, noise, dust, damp, etc.  As soon as possible, a detained person must be placed in special detention premises in a suitable police station (Source:  NZ RS).  In 1995, 1,652 suspects were detained in accordance with the provisions of article 157/II of the ZKP (Source:  MNZ RS).

152.     The determination of intoxication (with alcohol) as a basis for detention in accordance with the Misdemeanours Act is, in practice, based on the free judgement of the authorized person and only exceptionally on a determination of intoxication using special devices (alcohol breath tests).  This type of detention is ordered verbally (under article 108/II of the Misdemeanours Act - in the event of the detention of an intoxicated person the detained person is by definition unable to read or sign the special decisions issued, let alone write an appeal against them).  A special official note is always made on this type of detention.  These persons are, as a rule, detained in special premises at a police station or police department until they sober up.  If they are in need of medical attention, they must be transported to the nearest health institution (Source:  MNZ RS).

153.     The figures on detention pursuant to article 108/II of the Misdemeanours Act in the RS are as follows:  2,291 in 1993; 221 in 1994; 173 in 1995 (Source:  MNZ RS).

154.     Detentions in accordance with the Misdemeanours Act are generally ordered verbally, but they must be officially entered in the acts on individual misdemeanour cases, specifying the exact time of the beginning and end of detention.  This entry must be signed by the official who ordered detention, where the detainee confirms that he has been informed of the order and its content by supplying his signature (Source:  MNZ RS).

155.     In accordance with the Regulations on the Exercise of Authorizations of Officials Authorized by Internal Affairs Agencies, the detained person shall be brought, as soon as possible, to the premises of the internal affairs agency, where a proposal for the introduction of a misdemeanours procedure is written.  If necessary, the identity of the accused person is determined in the same premises (Source:  MNZ RS).

156.     The following are the figures for detentions in the RS pursuant to article 109/II of the Misdemeanours Act:  1,097 in 1993; 792 in 1994; 1,601 in 1995 (Source:  MNZ RS).

157.     Detentions in accordance with the Internal Affairs Act are, in practice, ordered by means of a written decision.  The decision is submitted to the detained person within the first few hours of the start of the period of deprivation of liberty (Source:  MNZ RS).

158.     Persons against whom detention of up to 24 hours has been ordered in accordance with the Internal Affairs Act are, as a rule, detained in the premises of police units or police departments (Source:  MNZ RS).

159.     In all cases of detention in accordance with the Misdemeanours Act and the Internal Affairs Act, internal affairs agencies must make a suitable official entry on detention in appropriate and relevant records, including the personal data of the detained person, the reason for detention, the exact time of detention, the legal basis for detention, data on informing the detained person of his rights regarding deprivation of liberty, data on the medical state of the detained person, and data on supervision of the detained person.  In addition, they must enter in the special book of detentions the personal data relating to the detained person, the agency which ordered the detention, the reasons for detention, the exact times of the beginning and end of detention, and possible injuries suffered by the detained person (including descriptions of these injuries).  If the detained person has been dispossessed of any items (either at the location of detention or upon his committal to special detention premises), a special receipt must be drafted and signed by the person who dispossessed the detainee of his possessions and by the detainee.  After detention ends, these items must be returned to the detainee and a written record made of this.  The detention is also entered separately in the report by the officer on duty at the police station (Source:  MNZ RS).

160.     No later than upon the committal of the detainee to special detention premises must the detainee be subjected to a search for the purpose of removing from him any items suitable for assault, escape or for the self-infliction of injury (particularly suicide).  Detained persons who exhibit tendencies towards the self-infliction of injuries must be supervised throughout their detention.

161.     On the basis of a special instruction by the MNZ, police units must notify internal affairs administrations of all detentions on a day-to-day basis.  If necessary, they must also notify foreign diplomatic/consular representative offices of relevant detentions (Source:  MNZ RS).

162.     According to the data provided by the Administration for the Enforcement of Criminal Sanctions at the RS Ministry of Justice, on 1 January 1996 there were 166 detainees, on 1 January 1997 198 detainees, and on 31 December 233 detainees.  According to different official positions, the RS Ministry of Justice recognizes that the living conditions for these detainees are often unsatisfactory, particularly because of the shortage of adequate premises or, more precisely, because of the lack of funds for providing such premises (Source:  MP RS).

(b)

163.     With regard to the practical enforcement of criminal sanctions in the Republic of Slovenia, we can briefly refer to the two annual reports issued by the Administration for the Enforcement of Criminal Sanctions at the Ministry of Justice for 1996 and 1997, to the conclusions from the Report to the RS Government on the Visit to Slovenia carried out from 19‑28 February 1995 by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT/Inf (96) 18 - see the appendix to this report for the full text), as well as to the RS Government’s reply to this report, including a report on measures for improving those elements which were subjected to criticism during the visit.

164.     On 1 January 1996 there were 425 convicts serving time in prison on the basis of sentences pronounced within criminal proceedings in the Republic of Slovenia.  Among newly‑admitted prisoners, 16 per cent were foreign citizens.  On 1 January 1996 eight minors were in juvenile detention in institutions.  In 1996 the security measure of compulsory psychiatric treatment and protection in an institution was pronounced for two offenders, and the security measure of the medical treatment of alcoholics and drug addicts for 14 offenders.  On 1 January 1996, 20 juvenile offenders were subject to the correctional measure of committal to a correctional centre.

165.     On 1 January 1997 there were 439 convicts serving prison sentences pronounced within criminal proceedings and 485 convicts on 31 December 1997.  Among newly-admitted prisoners, 16 per cent were foreign citizens.  On 1 January 1997 eight offenders were serving juvenile detention sentences, while on 31 December 1997 there were four such offenders.  In 1997 the security measure of compulsory psychiatric treatment and protection was pronounced for three offenders, and the security measure of the medical treatment of alcoholics and drug addicts for 19 offenders.  On 1 January 1997, 25 juvenile offenders were being subjected to the correctional measure of committal to a correctional centre (28 juvenile offenders on 31 December 1997).

166.     On 1 January 1996, 16 persons were serving prison sentences pronounced within misdemeanour proceedings; the number of these persons on 1 January 1997 was 23, and on 31 December 1997, 20.

167.     According to sources at the RS Ministry of Justice, there were 48 instances of the use of coercive means on detainees and convicts in 1996 - a gas sprayer was used once and a truncheon three times.  In 1997 coercive means were used 45 times - a gas sprayer was used once and a truncheon four times.  The position of the Ministry of Justice is that all instances of the use of force were lawful (Source:  MP RS).

168.     In 1996, 246 disciplinary sanctions were pronounced for convicts and 60 disciplinary sanctions for minors in the correctional centre.  In the same year, nine complaints were registered against pronounced disciplinary sanctions.  In 1997 there were 225 disciplinary sanctions in total, and an additional 70 disciplinary sanctions for minors in the correctional centre.  Eighteen convicts in total complained against pronounced disciplinary sanctions.  (See appendices for statistical details and the report on the treatment of convicts.)

169.     In its official position of 5 May 1998, the RS Ministry of Justice estimated that “the general conditions in institutions for the enforcement of prison sentences and in the juvenile detention centre (...) have been brought into compliance with international legal acts ratified by the Republic of Slovenia (…).  National and international legislation, which can be accessed by all persons imprisoned in these institutions, is implemented for the most part consistently in practice” (Source:  MP RS).  According to the ministry’s statements, “upon their admission to the institution or correctional centre all convicts are always informed of the rights and obligations they have during their sentence, of the method of exercising their rights, of the disciplinary sanctions that may be pronounced, and of the benefits they can enjoy” (Source:  MP RS).

170.     According to estimates by the RS Ministry of Justice, in the last five years there have been no major organized or spontaneous rebellions by persons imprisoned in institutions.  One exception was the collective rebellion of minors in the Radeče Correctional Centre in early 1998.  In this case, the special investigating commission at the RS Ministry of Justice determined that the rebellion was not instigated as a result of unlawful treatment by workers at the correctional centre, or as a result of possible torture within the meaning of the Convention against Torture. This event, however, attracted substantial media attention.  (See the appendix to this report for the report by the said commission.)

171.     In 1995 Slovenia was visited by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, which compiled a report on its visit (see the appendix to this report).  From this report it is clear that “the CPT delegation did not receive any complaints due to the torture of persons detained by the police”, and that “the delegation did not find any evidence of such treatment during its visit”, as well as that “the delegation did not receive any complaints due to torture nor did it collect any evidence on such treatment of convicts (…) that would be committed by staff in the institutions visited or in other institutions under the jurisdiction of the (RS) Ministry of Justice”.  The delegation did, however, draw attention to specific irregularities or circumstances which give rise for concern.  Thus the report includes the conclusion that a number of persons claimed “that police officers used excessive force at arrests (primarily truncheon strikes)”, and that during investigations they suffered “blows (slaps and punches)” from police investigators.  It is also clear from the report that the medical staff notified the delegation of the Council of Europe that in 1995 traces of physical injury were found on 25 persons referred to health institutions from institutions for the

enforcement of prison sentences after police detention.  In at least two cases, the Council of Europe delegation collected evidence demonstrating that the injuries suffered by the relevant persons were the result of excessive use of force.

172.     In its report on the situation in Slovenia, the Council of Europe delegation drew particular attention to the very poor conditions in the detention premises at the Ljubljana Central Police Station, comparing the premises to a “dungeon”.  The delegation also drew attention to the fact that two convicts serving their prison sentence in Dob prison complained that prison staff beat them up; one of them was beaten up in May 1994 and the other in June 1994.  The delegation claims that medical documentation exists which proves that these complaints were based on actual facts.  In addition, the delegation particularly stressed and criticized the use of force on juvenile detainees in the Radeče Correctional Centre on 9 January 1995.  When, on that day, a small group of minors refused to work and began to exhibit various types of destructive behaviour, seven guards of the special intervention group used force to confront them.  The incident resulted in, as was confirmed after the investigation by the Ministry of Justice and reiterated by the delegation of the Council of Europe, the “premature and disproportionate use of force”, including the “use of a truncheon (two strikes) against a minor even after the minor was clearly subdued”, the use of a truncheon (one strike) against a minor during the investigation, although it was clear that the minor did not offer any resistance”, and the use of a truncheon (two strikes) against a person who refused to get out of bed”.  In its report the delegation of the Council of Europe particularly stresses that in this matter “the minors were medically examined as late as the following day”, quoting the medical findings of these examinations, which included bruises, and marks from blows and injuries suffered by six minors.

173.     The Government of the Republic of Slovenia responded to the criticisms in the Council of Europe delegation’s report by introducing various measures, which are described in a special written report (see the appendix to this report).  Among other things, renovation was carried out of the entire detention premises at the Ljubljana Central Police Station, which were subject to the harshest criticisms by the Council of Europe delegation.

(c)

174.     See the findings and criticisms by the RS Human Rights Ombudsman included in various chapters of this report for separate discussions of the problem of psychiatric treatment and the potential danger of torture within the meaning of the Convention against Torture.

(d)

175.     Separate important discussions of issues relating to fighting threats of torture and other cruel, inhuman or degrading treatment or punishment within the meaning of the Convention against Torture can be found in the conclusions included in the most recent annual reports compiled by the Office of the Human Rights Ombudsman of the Republic of Slovenia and submitted to the National Assembly of the Republic of Slovenia (report for 1996 published in May 1997, and the accessible official material for 1997[42]).  In these reports (Source:  Human Rights Ombudsman of the RS[43]), the Human Rights Ombudsman states that the provision of

legal assistance for parties unfamiliar with legal issues in administrative proceedings, and the provision of parties with information on possibilities for appeal, are still not developed to a sufficient extent in Slovenia (pp. 14-15/1996).

176.     In a special chapter of the 1996 report (“Restrictions on Personal Freedom”), the Human Rights Ombudsman dealt separately with the problem of detention.  He maintained that Slovene judges issued rulings specifying less drastic measures for ensuring the presence of an accused person (particularly in relation to bail) with reluctance, resorting relatively hastily to the most drastic measure envisaged for this, i.e. detention (p. 32/1996).  In addition, in some cases Slovene courts unnecessarily protracted the delivery of a ruling on detention to detained persons.  The Human Rights Ombudsman drew attention to an instance of unreasonably long (two-year) detention in a specific case (p. 35/1996) and to a number of late written compilations of rulings with respect to detention cases, including cases of the disregard of appeals against these delays (p. 36/1996).  He also quotes a case of an eight-month transgression of the legal time limit for compiling a written ruling, as well as a number of cases of presidents of courts failing to act despite the extremely long delays in compiling written rulings involving detention cases.

177.     On page 37 of the 1996 report, in connection with conditions in detention premises in Slovenia, the Human Rights Ombudsman reported:  “In Slovenia, detention premises are mostly located in separately-enclosed parts of institutions for the enforcement of prison sentences or in their units.  Detention premises are often in the basement or semi-basement sections of old and poorly-insulated buildings.  Many detainees must go through detention lasting several months or even several years in premises which are damp and which do not have sufficient daylight; these spartan premises have sanitary and physical hygiene equipment which hardly meets the minimum standards deemed acceptable for people at liberty.  The premises are characterized by a lack of space, so that two or more detainees are often forced to reside together.  Each of the detainees has his own bed, if only a bunk, while chairs and tables are frequently shared with other inmates.  Poor ventilation (grids on usually small windows) results in poor air in the detention premises, particularly if there are more detainees in them.  A special problem is caused by smoking.  Despite our warnings, it appears that it has not yet been ensured that smokers and non-smokers are accommodated in separate premises in all detention institutions.[44]  We are not surprised by many detainees’ claims that their health is jeopardized in detention premises.  The poor living conditions and psychological tensions resulting from prolonged isolation and protracted judicial proceedings often lead to mental trauma and even to extreme reactions, such as suicide attempts.  There are also many complaints relating to poor medical and, in particular, psychiatric care, which in most cases offers drug treatment exclusively.  This often leads to drug addiction and to an even worse mental and physical state of health.  (…) “The Human Rights Ombudsman further draws attention to the fact that possibilities for the physical recreation of detainees are mostly confined to their detention cell”; he is particularly critical of the fact that outdoor recreation, as part of recreation under detention, is not ensured to a sufficient extent (p. 38/1996).

178.     It appears appropriate to highlight here a specific issue which the Human Rights Ombudsman explicitly qualified as the “inhuman and degrading treatment of a detainee” (pp. 38‑39/1996).  The case involved the use of means for cuffing a detainee (“handcuffs” used on his legs) who was recuperating in hospital after a medical operation.  The doctor in charge protested against this kind of treatment of the patient-detainee in the hospital several times, contacting different responsible bodies, including the court, and claiming that this coerced cuffing of the patient hindered medical treatment and caused suffering.  All his appeals were in vain.

179.     On pp. 40-41 of the 1996 report, the Human Rights Ombudsman drew attention to the fact that none of the Slovene detention institutions observed the legal provisions which stipulate that defence counsels may talk to detainees at all times, while he also mentions “hesitations (…) regarding the granting of permission for visits by journalists” (p. 41/1996).  The Human Rights Ombudsman (despite the concrete normative incompleteness of this issue) criticized a case where the court did not notify the relatives of a detainee, who then attempted to commit suicide and in so doing inflicted severe injuries on himself (p. 41/1996).  He also criticized the “unreasonably long withholding of a detainee’s mail at the court (10 days)”.  In addition, he stated that in specific cases judges even opened letters addressed to the Human Rights Ombudsman, which is in contravention of the Human Rights Ombudsman Act (p. 42/1996).

180.     With respect to the treatment of prisoners (legally-convicted persons) in Slovene prisons, the Human Rights Ombudsman highlights the unsatisfactory level of psychological assistance in cases of mental distress (p. 46/1996) and in particular the fact that in 1996 five inmates committed suicide in Slovene prisons (of whom one was a detainee).[45] [46] [47]

181.     The Human Rights Ombudsman's 1996 report also included criticism of discrimination against a prisoner in the exercise of his rights arising from health insurance in a specific case (the prisoner was denied hospitalization in a specialist health institution).

182.     On page 48 of the 1996 report, the RS Human Rights Ombudsman criticized specific practice where the rights to unrestrained contact with a defence counsel of a detainee who at the same time was a prisoner were violated.  The prison management wrongfully treated the detainee in accordance with the rules applying to prisoners, thus restricting his contact with a defence counsel and contravening the ZKP.

183.     On the same page of the 1996 report, the Human Rights Ombudsman highlighted the modest possibilities in practice that prisoners have for movement out of doors.  He also criticizes the fact that many prisoners are involuntarily exposed (which has been proved to be harmful) to cigarette smoke and passive smoking.  This practice is in contravention to Slovene valid legislation governing the restriction of the use of tobacco products (p. 49/1996).

184.     Here we must also place emphasis on the RS Human Rights Ombudsman’s statement that the practice of placing minors in detention while waiting for admission to the correctional centre is impermissible (p. 50/1996).

185.     On pages 52-55 of the 1996 annual report, the Human Rights Ombudsman extensively criticized legislation, as well as practice, and in particular the ineffective judicial supervision of forcibly-hospitalized psychiatric patients.  He proposed that compulsory representation of this type of patient and other forms of free legal assistance be introduced, as these do not currently exist in Slovenia.  The Human Rights Ombudsman warned that even modest legal regulation failed to be observed in practice.  So, for example, the 48-hour time limit for notifying the court of the forced detention of a patient in a psychiatric health institution (in accordance with the Non-Contentious Proceedings Act) was not abided by at all times.  The situation was even worse regarding the legal time limits to be complied with by courts.  “The Ljubljana District Court practically never visits persons detained in psychiatric hospitals within the legally-prescribed time limit (…)” (p. 54/1996).

186.     The Human Rights Ombudsman continued his criticisms regarding the observation of the rights of psychiatric patients in Slovenia in 1997.  In a special report on the visit to the Ormož Psychiatric Hospital public health institution carried out on 16 December 1997, the Human Rights Ombudsman stressed the problem of overcrowded rooms, particularly in enclosed departmental sections.  He also drew special attention to the competent court’s practice, where in recent years the court has failed to complete any detention proceedings case by adopting a decision (issuing of a resolution) that a detained person should either continue to be detained or be released.  In particular, the judge of the competent court failed to visit detained persons as specified in the valid Non-Contentious Proceedings Act (article 74) or to carry out any procedural action on the basis of a received notification on detention, even when this detention was longer than usual.  Detained persons were visited by the judge only in the event of a complaint, where the Human Rights Ombudsman found this to be contra legem and a reason for serious concern in a State governed by the rule of law.  In his separate opinion, the Human Rights Ombudsman in 1997 wrote that “judicial control of hospitalization in the enclosed departmental sections of the Ormož Psychiatric Hospital (…) is not exercised in accordance with valid regulations”, or that legally-prescribed judicial control “practically does not exist” (Source:  1997 Special Report).

187.     In the other special reports for 1997, the Human Rights Ombudsman quoted cases 2.3‑1/97, 2.3-6/97 and 2.3/96, criticizing a similarly unlawful practice which took place in Ljubljana (Ljubljana-Polje Psychiatric Clinic, competent court) (Source:  special reports for 1997).

188.     The Human Rights Ombudsman of the RS warned that in a specific case in 1996, the police handcuffed a suspect at his home, but officially claimed that the suspect was deprived of his liberty three hours later at the police station.  In so doing, the police violated the legally‑permissible time limit for detention of 48 hours (p. 122/1996).  In 1996 the Human Rights Ombudsman also discussed the detention of a minor twice in a row, when the length of deprivation of liberty was effectively 96 hours without interruption (p. 123/1996).  The Human Rights Ombudsman particularly stressed that improper and unlawful practices on the part of police officers was often inadequately and insufficiently-strictly sanctioned in formal terms (p. 123/1996).  He also highlighted blatant cases of the police wrongfully referring to consent given by suspects (e.g. to polygraph testing).  (See p. 124 of the 1996 annual report.)

189.     In the special report for 1997, the Human Rights Ombudsman drew attention to a case (6.1.17/97) of the unlawful deprivation of liberty and of a number of other errors made by a police officer from Koper police station.  The police officer delivered a verbal summons to a suspect to attend the police station, which meant that the police officer, without good cause, transported the suspect to the station in the enclosed section of the official police vehicle; he also kept the suspect for an excessively long time in this section, and he failed to instruct the suspect of his rights in accordance with the ZKP (Source:  1997 Special Report).

190.     The Human Rights Ombudsman also discovered a number of procedural irregularities during an informative conversation at the Ljubljana Central Police Station with reference to case No. 6.1-14/96 (Source:  1997 Special Report).

(e)

191.     Among the legally valid rulings relevant to the definition of torture specified in the Convention against Torture, there have been few serious cases in the last five years.  One exception is the relatively infamous ruling which was passed in 1996 and which received extensive media attention.  The case involved the criminal offence of the violation of human dignity by abuse of office or official duties according to article 270 of the KZRS.  In its ruling No. Kp 391/96 (on the basis of an appeal against the ruling in the first instance), the Ljubljana Higher Court found H.Z., a police officer at the Crime-Fighting Unit of the Ljubljana Internal Affairs Administration, guilty.  The police officer had been charged with acting intentionally in contravention to the valid instructions on the use of coercive means during the arrest procedure, inflicting light bodily harm on the arrested person and exhibiting generally exceptionally brutal behaviour during the arrest.  As a result, the court ruled a suspended sentence of four months in prison with a probation period of two years for H.Z. (see the appendix to this report for the full text of this ruling).

192.     In addition, two more rulings (K 23/95 and Kp 901/96) deserve mention.  B.J., a police officer at Jesenice police station, was found guilty of committing the criminal offence of violation of human dignity by abuse of office or official duties pursuant to article 270 of the KZRS, and at the same time of inflicting extremely severe injuries pursuant to article 135/I.  While exercising traffic control, the accused officer acted brutally against the driver of a personal vehicle, and severely damaged one of the driver’s eyes by using his foot.  The court ruled a suspended prison sentence for B.J. (see the appendix to this report for the full text of this ruling).

(f)

193.     In addition to Amnesty International, the following officially registered non‑governmental organizations in the Republic of Slovenia are the most active and influential organizations monitoring compliance with the prohibition of torture within the meaning of the Convention against Torture:  the Association for Developing Preventive and Voluntary Work, the Helsinki Monitor, Labeco, Retina Ljubljana, REC, the Centre for Assisting Young People, the “Project Man” Association, the SOS Telephone Hotline Association, Stigma (Stigma Association), the Peace Institute, the Youth Guild, OZARA (Association for Quality of Life), KUD (Exiles Project), the Most Association, KOMISP (the umbrella organization of international professional student associations), the Informal Association of Same-Sex Persons, the Agency for Developmental Initiatives, the “N’č posebnega ali nočna mora” Association, the SOS telephone hotline, the Women’s Advice Office, the Altra Association, Šent (Organization for Mental Health), Umanotera (Slovene Foundation for Sustainable Development), the Federation of Young Slovenes Living in Rural Areas, the Handicap Theory and Culture Association, the Federation of Friends of Young People, SEZAM (Association of Parents and Children), the “Živozeleni” Association, the “Jernejeva Pravica” Association, the Women’s Forum, the Slovene Foundation, UNICEF (the Slovene UNICEF Committee), the Non-Violent

Communication Association, Karitas of Slovenia, Autonomous Women’s Groups, the Centre for Psycho-Social Aid for Refugees, the Quality of Life Association, and the Civil Society for Democracy.[48]

4.

194.     Since ratifying the Convention against Torture in 1993, Slovenia has not declared a state of war or a state of emergency within the meaning of article 16 of the Constitution of the Republic of Slovenia, or article 5/I (4) and (5) of the Defence Act, nor has it experienced any serious internal political instability or any other similar state of emergency within the meaning of article 2/II of the Convention against Torture.

195.     As has already been explained briefly (Introduction, C.), the prohibition of torture and inhuman or degrading treatment or punishment is set out as a general prohibition by article 18 of the Constitution of the Republic of Slovenia, where the explicit provision of article 16/II permits no temporary revocation or restriction.  This obligation also arises from the provision of article 2 of the Ratification of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment Act, which entered into force on 29 May 1993.

196.     In the five-year period under discussion, the Republic of Slovenia (its legislative, executive and judicial bodies) has never referred to emergency circumstances to justify any type of torture (i.e. declare its compliance with the Slovene legal system, i.e. declare it to be “not unlawful”) within the meaning of the Convention against Torture, and in particular any torture under national jurisdiction of the Republic of Slovenia.  In the five-year period under discussion there have been no known cases in which the perpetrators of torture or other cruel, inhuman or degrading treatment or punishment would, in any type of legal proceedings, refer to circumstances that would exclude the unlawfulness of their action, such as:  references to provisions governing self-defence; action as last resort; use of force under threat; use of force with the victim’s consent, etc.

197.     Although both theory and practice do not exclude the possibility that the perpetrator may be forced to torture other people within the meaning of article 1/I of the Convention against Torture in order to protect his own life against a threat posed by a third person, and that according to the standards applying to the use of force as a last resort and under appropriate circumstances this could not be unlawful in accordance with Slovene criminal law, Slovenia has hitherto not encountered this type of case.

5.

198.     The provision of article 283 of the KZRS (chapter 27, entitled “Criminal Offences against Military Duty”) deals with the general criminal liability of military subordinates who fail to execute an order by their superiors.  The provision reads:  “A member of the military who commits a criminal offence upon an order or command given by his superior, where this order or command is related to military duty, shall not be liable for committing such an offence, unless the offence constitutes a war crime or any other severe criminal offence or if he was aware that the execution of a particular order or command constituted a criminal offence”.

199.     The provision of article 43/VIII of the Defence Act concretizes the above provision of the KZRS as follows:  “No one may issue, nor shall anyone be obliged to execute, an order if it is clear that this would result in a criminal offence or the violation of provisions of international military law”.

200.     According to the Rules of Service in the Slovene Armed Forces (point 53/IV), “in accordance with law a military person may not execute an order which is in contravention with international military law or if it is clear that the execution of the order would result in a criminal offence”.  Military persons must refuse to execute such an order and, as soon as possible, notify the superior of the person who issued this order.  The military person who issued such an order may not prevent such notification of a superior.  The superior who received such notification must notify his superior headquarters, which in turn must notify the General Headquarters of the Slovene Armed Forces” (ibidem).[49]

201.     According to the general rules of the ZKP, any person, which therefore includes military persons, may report a criminal offence directly to the responsible national (civil) bodies, i.e. a criminal offence which is liable to public prosecution (article 146/I of the ZKP).  Under articles 285 and 286 of the KZRS, military persons may even be liable for committing a criminal offence if, under certain conditions, they fail to report that a specific criminal offence has been committed, or even if a criminal offence is planned to be committed (including criminal offences committed or planned to be committed by military superiors).[50]

202.     Criminal liability acting upon an order issued by a superior outside the military (in other public-law hierarchical institutions) is not separately regulated by Slovene positive criminal law.  However, most Slovene criminal law theory stresses that,[51] in such instances of orders, conditions for the unlawfulness of the execution of the order would in principle be valid, where only the liability of the subordinate could be excluded using the criterion of legal error (see the provision of article 21/I of the KZRS[52]).

Article 3

1.

203.     In accordance with the Slovene legal system, foreign persons are permitted to be expelled as part of certain proceedings:  misdemeanours proceedings (in the form of the security measure of the removal of a foreign person pursuant to article 40 of the Misdemeanours Act) or criminal proceedings (in the form of the sentence of the deportation of a foreign person pursuant to article 40 of the KZRS).  In both cases, expulsion is carried out by force on the basis of articles 27 and 28 of the Foreign Persons Act if the foreign person, after the pronouncement of a measure of removal or deportation, fails to leave the country voluntarily within the prescribed time limit.

204.     Another possibility is the administrative cancellation of a foreign person’s temporary or permanent residence in Slovenia, which may also eventually result in the forced removal of that foreign person from the country.  This measure is set out in articles 23 and 24[53] of the Foreign

Persons Act, and falls within the jurisdiction of responsible administrative bodies.[54]  The measure of cancellation of residence may not be shorter than six months or longer than five years (article 25/III of the Foreign Persons Act).

205.     In the widest sense, all general possibilities for appeal may be exercised against court or misdemeanours judge decisions involving sanctions of expulsion pronounced within criminal and misdemeanours proceedings, including an appeal against the type and severity of the pronounced criminal sanction.[55]  The administrative procedure in the Foreign Persons Act in relation to the cancellation of residence envisages a special possibility for appeal:  “The decision on the cancellation of a foreign person’s residence shall be issued by the responsible body in whose area the foreign person resides or has a registered temporary residence permit, or by the national administrative body responsible for internal affairs in the event of the cancellation of a foreign person’s permanent residence.  In making the decision on cancellation, the body shall take into account the length of stay of the foreign person in the country, his personal, economic and other ties with the Republic of Slovenia, and the consequences which the foreign person and his family would suffer as a result of the cancellation.  (…)  In assessing how long the foreign person should be banned from entering the country, the body which issues the decision on the cancellation of residence shall take into account the gravity of the committed misdemeanour or criminal offence, as well as other circumstances for which residence of the foreign person is undesired.  (…)  The foreign person may appeal against (this) decision within three days.  Appeals by foreign persons who have resided in the Republic of Slovenia in accordance with the first paragraph of article 13 of this Act (entry in the RS on the basis of a valid passport or visa) or on the basis of a permit for temporary residence shall not stay the execution of the decision”.

206.     As is the case in principle in all administrative proceedings, judicial protection is also permitted here.  Under the Administrative Disputes Act, the responsibility for such protection is the administrative court in this instance as well.[56]

207.     In all cases described above, irrespective of the nationality of the appellant, it is possible to file a constitutional appeal in accordance with the general rules of the Constitutional Court Act (see below the report on the implementation of article 13 of the Convention against Torture for details).

208.     A special criminal procedure for the extradition of an accused and convicted person from Slovenia to a foreign country is set out in chapter XXXI of the ZKP (see below).  If an international treaty to which the RS is bound prescribes a special procedure, article 521 stipulates that the procedure described in this international treaty shall apply.

209.     The provision of article 33 of the Foreign Persons Act applies to all the cases described above:  “The forced extradition of a foreign person to a country in which his life would be threatened because of racial, religious or national prejudice, or political persuasion, or if there is a danger that once extradited the foreign person would be subjected to torture, inhuman or degrading treatment, shall not be permitted”.  In addition to this provision, as already mentioned, the provision of article 3 of the Convention against Torture and all other relevant provisions of ratified international treaties apply directly.

2.

210.     A separate chapter of the Criminal Procedure Act entitled “Proceedings for the Extradition of Accused and Convicted Persons” (chapter XXXI) permits, in principle, the extradition of a foreign person to another country, while it also sets out (article 530/II) that the Minister of Justice may refuse to extradite a foreign person if this person is granted the right to refuge in the Republic of Slovenia, or if a political or military criminal offence is in question.  He may also refuse extradition in all cases involving criminal offences for which Slovene law prescribes prison sentences of up to three years, or if a foreign court has pronounced the sentence of deprivation of liberty for up to one year.  Under the provision of article 531 of the ZKP, in the decision on the extradition of a foreign person the RS Minister of Justice must specify that the foreign person to be extradited may not be prosecuted for some other criminal offence; that no sentence for some other criminal offence committed prior to the extradition may be implemented; that no severer sentence may be imposed on him than that pronounced for the committed offence; and that he may not be extradited to a third country to be prosecuted for a criminal offence which he committed before extradition was permitted.  In addition to these conditions, the Minister of Justice may lay down other conditions for extradition (article 531/II).[57]

211.     The Republic of Slovenia is also bound by various international multilateral and bilateral agreements (see the appendix for a list), which impose specific restrictions regarding the extradition of foreign persons and set out the extradition procedure in detail.

212.     The responsible national judicial and executive bodies observe all relevant international treaties that bind the Republic of Slovenia in all expulsion procedures.  As for the danger of the person to be expelled being subjected to torture within the meaning of article 3 of the Convention against Torture, the RS Ministry of Foreign Affairs must give its opinion on all cases.  In the procedure of investigating this danger, the responsible service at the RS Ministry of Foreign Affairs must, in confidentiality, obtain the opinions of Slovene consular/diplomatic representative offices based abroad, and must take into account all other available information on the current state of protection accorded to human rights in the country to which an individual is to be expelled in a specific case.  On the basis of this information, the RS Ministry of Foreign Affairs compiles a written report on a specific case and submits this report to the body responsible for deciding on the extradition in question.

3.

Statistics and specific features in practice

213.     In 1996 the total number of convicts admitted to institutions for the enforcement of prison sentences in the Republic of Slovenia included 80 foreign persons for whom the subsidiary sentence of expulsion from the country was pronounced as part of criminal proceedings; in 1997 the number of such convicts/foreign persons was 56.

Article 4

1.

214.     With respect to liability for attempts to commit individual criminal offences involving torture in the widest meaning of the word, we include the basic data obtained by reviewing incriminations set out in the positive criminal law of the Republic of Slovenia (see the report on the implementation of article 1 of the Convention against Torture above).  For the purpose of drawing as complete a picture as possible of how Slovene criminal law addresses liability for criminal attempts, the following sections of the report set out in detail the general regulation of liability for criminal attempts according to the KZRS.

215.     In the chapter of the KZRS entitled “Criminal Attempt”, the following definitions can be found:  “(I) Anybody who intentionally initiated a criminal offence but did not complete it shall be punished for the criminal attempt, provided that such an attempt involved a criminal offence for which a sentence of three years’ imprisonment or a heavier sentence may be imposed under the statute; attempts involving any other criminal offence shall be punishable only when so expressly stipulated by the statute.  (II) Against a perpetrator who attempted to commit a criminal offence, the sentence shall be applied within the limits prescribed for such an offence, or it shall be reduced as the case may be” (article 22 of the KZRS).  And further:  “If the perpetrator has attempted to commit a criminal offence by inappropriate means or to damage an inappropriate object, his sentence may be withdrawn” (article 23 of the KZRS).

216.     Article 25 of the KZRS defines complicity:  “If two or more persons are engaged jointly in the commission of a criminal offence by collaborating in the execution thereof or by the performance of any act representing a decisive part of the commission of the offence in question, each of these persons shall be punished according to the limits set down in the statute for the offence in question.”

217.     Article 26 of the KZRS defines criminal solicitation:  “(I) Anybody who intentionally solicits another person to commit a criminal offence shall be punished as if he himself had committed it.  (II) Anybody who intentionally solicits another person to commit a criminal offence for which a sentence of three years’ imprisonment or a heavier sentence may be imposed under the statute shall be punished for the criminal attempt even if the commission of such an offence was never attempted.”

218.     Article 27 of the KZRS defines criminal support:  “(I) Any person who intentionally supports another person in the commission of a criminal offence shall be punished as if he himself had committed it, or his sentence shall be reduced as the case may be.  (II) Support in the commission of a criminal offence shall be deemed to be constituted, in the main, by the following:  advising or instructing the perpetrator on how to carry out the offence; providing the perpetrator with instruments of crime; the removal of obstacles for the commission of crime; a priori promises to conceal the crime or any traces thereof; concealment of the perpetrator, instruments of crime or objects gained through the commission of crime.”

219.     Criminal liability for solicitation and support is also separately defined in article 28 of the KZRS (“if the perpetration of a criminal offence falls short of the intended consequence, those soliciting or supporting the criminal attempt shall be punished according to the prescriptions that apply to the criminal attempt”), while article 29 of the KZRS additionally sets out the limits of the criminal liability and punishability of participants in crime:  “(I) The accomplice in crime shall be liable within the limits of his intent or negligence as the case may be, while those soliciting and supporting are liable within the limits of their respective intents.  (II) If the accomplice, the person soliciting or the person supporting the criminal attempt has voluntarily prevented the intended criminal offence from being accomplished, his sentence may be withdrawn.  (III) Personal relations, attributes and circumstances on the basis of which criminal liability is excluded or sentence withdrawn, reduced or extended shall be taken into consideration only with respect to the accomplice, the person soliciting or the person supporting the criminal attempt in whom such relations, attributes and circumstances inhere.”

220.     To determine whether it is possible to qualify an action of an accused person in law as a non-punishable preparatory action, whether an action of the accused shows signs of torture but falls short of generating the prohibited consequences (severe human pain and suffering within the meaning of article 1/I of the Convention against Torture) or, in the event of torture, what constitutes the beginning of execution of signs of individual incriminations within Slovene positive criminal law will, by all means, depend on individual legal definitions and the concrete circumstances of a particular case, and chiefly on the perpetrator’s intent.  Slovene criminal law theory and judicial practice uniformly stress the importance of objective criteria for determining the gravity of a specific contribution to an offence.  This may include the preparation of implements of torture, the placing of electrodes on a person’s body, stripping a person, tying and positioning a person and so on - all with the aim of shortly or in the near future implementing torture.  It is stipulated that this action, in essence still merely preparatory, inflicts severe (primarily mental) pain and suffering on the victim and therefore objectively constitutes finalized torture within the meaning of the commission of various criminal offences against limb set out in the KZRS.  In Slovenia those who are not aware that by preparing implements of torture or carrying out other preparations for torture they inflict severe (mental) pain or severe (mental) suffering on other persons cannot be deemed liable for an intentional criminal offence against limb.

221.     In Slovenia the agreement of two or more persons to commit a criminal offence – even criminal torture within the meaning of article 1/I of the Convention – is not deemed in itself to constitute an agreed criminal offence, irrespective of the level of formality of such an agreement.  It may, however, develop into an independent criminal offence in accordance with article 298 of the KZRS (“whoever agrees to commit a criminal offence with another for which a punishment exceeding five years’ imprisonment may be imposed”).[58]  This criminal offence is prosecuted ex officio.

2.

222.     The sentences prescribed for the officially-prosecutable criminal offences which are discussed in this report and which, according to Slovene criminal legislation, are relevant to cases involving torture and other cruel, inhuman or degrading treatment or punishment are as follows:  article 134/I of the KZRS (aggravated bodily harm) – imprisonment of between six months and five years; article 135/I of the KZRS (grievous bodily harm) – imprisonment of

between 1 and 10 years; article 141/III of the KZRS (qualified violation of the right to equality) – imprisonment of up to three years; article 143/II of the KZRS (qualified false imprisonment) – imprisonment of up to three years, imprisonment of between three months and five years; article 147/II of the KZRS (qualified unlawful search of a person) – imprisonment of up to two years; article 152/III of the KZRS (qualified criminal trespass) – imprisonment of up to two years; article 261/I of the KZRS (abuse of office or official duties) – imprisonment of up to one year; articles 261/II, 261/III, 261/IV of the KZRS (various qualified forms of abuse of office or official duties) – imprisonment of up to three years, imprisonment of between three months and five years, imprisonment of between one and eight years; article 270 of the KZRS (violation of human dignity by abuse of office or official duties) – imprisonment of up to three years; article 271/II of the KZRS (extortion of statement) – imprisonment of between three months and five years; article 271/II of the KZRS (qualified extortion of statement) – imprisonment of between one and eight years; article 278/II of the KZRS (maltreatment of a subordinate) – imprisonment of up to three years; article 278/II of the KZRS (qualified maltreatment of a subordinate) – imprisonment of up to five years; article 180/II of the KZRS (qualified rape) – imprisonment of between 3 and 15 years; article 181/II of the KZRS (qualified sexual violence) – imprisonment of between 3 and 15 years; article 127/II of the KZRS (qualified murder) – imprisonment of between 10 and 20 years.  The KZRS, as a rule, prescribes the maximum prison sentences for criminal offences committed against humanity and international law.

Article 5

223.     The KZRS contains a special chapter within the general section (chapter 13) entitled “Applicability of the Penal Code”.  The chapter sets the criteria for the applicability of penal legislation in cases including international elements.  The full text of the provisions of this chapter read as follows:

224.     Applicability to Persons for Criminal Offences Committed in the Republic of Slovenia (article 120).  (I) The Penal Code of the Republic of Slovenia shall apply to any person who commits a criminal offence in the territory of the Republic of Slovenia.  (II) The Penal Code of the Republic of Slovenia shall also apply to any person who commits a criminal offence on a domestic vessel irrespective of its location at the time the offence was committed.  (III) The Penal Code of the Republic of Slovenia shall apply to any person who commits a criminal offence either on a domestic civil aircraft in flight or on a domestic military aircraft irrespective of its location at the time the offence was committed.

225.     Applicability to Persons for Specific Offences Committed Abroad (article 121).  The present Code shall apply to any person who, in a foreign country, commits either the criminal offence under article 249 of the present Code referring to domestic currency or any of the criminal offences under articles 348-362 of the present Code.

226.     Applicability to Citizens of the Republic of Slovenia for Criminal Offences Committed Abroad (article 122).  The Penal Code of the Republic of Slovenia shall be applicable to any citizen of the Republic of Slovenia who commits any criminal offence abroad, other than those specified in the preceding article, and who has been apprehended in or extradited to the Republic of Slovenia.

227.     Applicability to Foreign Citizens for Criminal Offences Committed Abroad (article 123).  (I) The Penal Code of the Republic of Slovenia shall apply to any foreign citizen who has, in a foreign country, committed a criminal offence against the Republic of Slovenia or any of its citizens and who has been apprehended in the territory of the Republic of Slovenia or has been extradited, even though the offences in question are not covered by article 121 of the present Code.  (II) The Penal Code of the Republic of Slovenia shall also be applicable to any foreign citizen who has, in a foreign country, committed a criminal offence against a third country or any of its citizens and has been apprehended in or extradited to the Republic of Slovenia, provided the offence concerned is punishable by a prison sentence of at least three years according to the present Code.  In such cases, the court shall not impose a sentence on the perpetrator heavier than the sentence prescribed by the law of the country in which the offence was committed.

228.     Special Conditions for Prosecution (article 124).  (I) If, in cases under article 120 of the present Code, the criminal procedure has been initiated or discontinued in a foreign country, the perpetrator may be prosecuted in the Republic of Slovenia only with the permission of the RS Ministry of Justice.  (II) In cases under articles 122 and 123 of the present Code, the perpetrator shall not be prosecuted:  (1) if he has served the sentence imposed on him in the foreign country or if it was decided in accordance with an international agreement that the sentence imposed in the foreign country is to be served in the Republic of Slovenia; (2) if he has been acquitted by a foreign court or if his sentence has been remitted or the execution of the sentence has fallen under the statute of limitations; (3) if, according to foreign law, the criminal offence concerned may only be prosecuted upon the complaint of the injured party and the latter has not been filed.  (III) In cases under articles 122 and 123, the perpetrator shall be prosecuted only insofar as his conduct constitutes a criminal offence in the country where it was committed.  (IV) If, in the case under article 122, the criminal offence committed against the Republic of Slovenia or a citizen thereof does not constitute a criminal offence under the law of the country in which it was committed, the perpetrator of such an offence may be prosecuted only with the permission of the RS Ministry of Justice.  (V) If, in the case under the preceding article, the criminal offence is not punished in the country where it was committed, the perpetrator may be prosecuted only with the permission of the RS Ministry of Justice and with the proviso that, according to the general principles of law recognized by the international community, the offence in question constituted a criminal act at the time it was committed.  (VI) In the case under article 120, the prosecution of a foreign person may be transferred to another country under conditions provided by the statute.

229.     Credit for Detention and Sentence Served Abroad (article 125).  Any period of detention, confinement during the extradition procedure or sentence of imprisonment served under the judgement of a foreign court shall be credited towards the sentence imposed for the same criminal offence by the domestic court.  If a different type of sentence is imposed on a perpetrator by the domestic court, the latter shall decide on the appropriate method of deduction of the period served abroad.

230.     Because of the legal frameworks (particularly those provided by substantive and procedural criminal law) in the Republic of Slovenia and because of a specific interpretation of international law, acts of torture within the meaning of the Convention against Torture are, by their very nature, in accordance with the “general legal principles recognized by the international community” within the meaning of the provisions of the KZRS cited above.

Articles 6-8

231.     As has been shown in the report on the implementation of article 5 of the Convention against Torture (see above), valid Slovene legislation provides for the prosecution of all perpetrators charged with committing torture within the meaning of the Convention against Torture - both suspects who are Slovene citizens and foreign suspects.  In all criminal and misdemeanours proceedings, Slovene suspects are, in principle, subject to the same procedural rules as foreign suspects, except for the rules on the right of a foreign person to contact representatives of diplomatic/consular services from the foreign person’s country of origin (see the ZKP and the ZIKS).  Both Slovene suspects and foreign suspects have the right to an interpreter.

232.     As explained in the report on the implementation of article 3 of the Convention against Torture (see above), foreign persons suspected of committing the criminal offence of torture are permitted to be extradited to a foreign country in accordance with a special legal (judicial) procedure.  Articles 526, 534 and 527-530 of the ZKP set out the status of a foreign person in the procedure of adopting a decision on extradition in relation to criminal offence cases.  Clearly, charges of the criminal offence of torture do not constitute a reservation for extradition here, while, as mentioned in article 33 of the Foreign Persons Act, the threat of torture by a suspect abroad is an a priori reservation for extradition even in cases where the suspect himself is under suspicion of having committed the criminal offence of torture.

233.     The procedure of a foreign person’s extradition to a foreign country must take into account all provisions of relevant international treaties binding on Slovenia and applying to a concrete case.

234.     The Republic of Slovenia has ratified (and, in accordance with regulations, published) a number of international conventions and multilateral international treaties in the area of international legal assistance in the wider meaning of the term.  The texts of these treaties set out in detail the procedure of international assistance to and the specific special rights of accused foreign persons (see appendices).  As a member of the Council of Europe, the Republic of Slovenia is bound to comply with the judicature of the Commission and the Court of Human Rights in this area.

235.     Special attention needs to be drawn to specific bilateral agreements which additionally bind the Republic of Slovenia (for example, extradition agreements which the Republic of Slovenia has signed with Spain, Austria, Germany, Croatia, etc.).  See appendix for details.

236.     Finally, Slovenia is not a signatory to any international treaty which would deem criminal offences involving torture to be non-extraditable.

237.     (See also the reports on the implementation of other articles of the Convention against Torture (in particular, the reports on articles 2, 4, 9, 11 and 12) for details on the procedure of international legal assistance in the wider sense, as well as for details on criminal proceedings against foreign defendants.)

Article 9

238.     The Criminal Procedure Act contains a separate chapter (chapter XXX) entitled “Procedures for international legal aid and the execution of international agreements on matters of penal law”.  The full text of the provisions of the first part of this chapter, dealing separately with international legal aid with respect to criminal law, reads as follows:

239.     Article 514.  International aid in criminal matters shall be administered pursuant to the provisions of the present Code, unless provided otherwise by international agreements.

240.     Article 515.  (I) Petitions by domestic courts for legal aid in criminal matters shall be transmitted to foreign agencies through diplomatic channels.  Foreign petitions for legal aid from domestic courts shall be transmitted in the same manner.  (II) In urgent cases, petitions for legal aid may be transmitted via the Ministry of the Interior, provided reciprocity exists.

241.     Article 516.  (I) The Ministry of Foreign Affairs shall send petitions for legal aid received from foreign agencies to the Ministry of Justice, which shall forward them for consideration to the circuit court in whose territory the person who should be served with a document, interrogated or confronted, or in whose territory an investigative act should be conducted, resides.  (II) In instances referred to in the second paragraph of article 515 of the present Code, petitions shall be transmitted to the court by the Ministry of the Interior.  (III) The permissibility and manner of performance of an act requested by a foreign agency shall be decided by the court pursuant to domestic regulations.  (IV) If a petition relates to a criminal offence for which no extradition is provided by domestic regulations, the court shall consult the Ministry of Justice as to whether or not to grant the request. 

242.     Article 517.  (I) Domestic courts may grant the request of a foreign agency for the execution of a conviction passed by a foreign court, if so provided by the international agreement or if reciprocity exists.  (II) In the instance referred to in the preceding paragraph, the domestic court shall execute punishment imposed by the final judgement of a foreign court by imposing sanctions in accordance with the legislation of the Republic of Slovenia.  (III) The court of jurisdiction shall pass judgement in the panel of judges referred to in the sixth paragraph of article 25 of the present Code.  The state prosecutor and defence counsel shall be informed of the session of the panel.  (IV) The territorial jurisdiction of the court shall be determined according to the last permanent residence of the convicted person in the Republic of Slovenia.  If the convicted person had no permanent residence in the Republic of Slovenia, territorial jurisdiction shall be determined according to his place of birth.  If a convicted person neither had permanent residence nor was born in the Republic of Slovenia, the Supreme Court shall assign the conduct of proceedings to one of the courts of real jurisdiction.  (V) In the enacting terms of the judgement from the third paragraph of this article, the court shall enter in full the enacting terms of the judgement of the foreign court and the name of the foreign court, and shall pronounce a sanction.  In the statement of reasons, the court shall state the grounds for the sanction which it has passed.  (VI) An appeal may be lodged against a judgement by the state prosecutor, the convicted person and his defence counsel.  (VII) If a foreign person sentenced by a domestic

court, or a person authorized under a contract, files with the court of first instance a petition for him to serve the sentence in his own country, the court shall be entitled to grant the petition, if so provided by the international agreement or if reciprocity exists.

243.     Article 518.  In the case of the criminal offences of counterfeiting money and of putting it into circulation, the illicit production, processing and sale of narcotics and poisons, the white slave trade, the production and dissemination of pornographic material, or some other criminal offence for which centralization of data has been provided under international agreements, the agency which conducts criminal proceedings shall be bound immediately to send to the Ministry of the Interior data relating to the criminal offence and its perpetrator, and the court of first instance shall, in addition, send the finally-binding judgement.

244.     Article 519.  (I) If a foreign person who permanently resides in a foreign country commits a criminal offence in the territory of the Republic of Slovenia, all files for criminal prosecution and adjudication may, notwithstanding the conditions specified in article 522 of the present Code, be surrendered to the foreign country if it agrees to receive them.  (II) The decision on the surrendering of files shall, before the ruling on investigation has been rendered, lie with the competent state prosecutor.  During the investigation the surrender shall be decided by the investigating judge upon the motion of the state prosecutor, and until the opening of the main hearing it shall be decided by the panel (sixth paragraph, article 25), which shall also handle matters from the jurisdiction of the district court.  (III) The surrendering of criminal files may be allowed where criminal offences punishable by up to 10 years’ imprisonment are involved, as well as in the case of criminal offences against the safety of public transport.  (IV) The surrendering of criminal files shall not be allowed if the injured party is a citizen of the Republic of Slovenia who opposes it, except where his indemnification claim has been secured.

(V) If the defendant is on remand, the foreign country shall be requested, through the shortest possible channels, to report within 15 days on whether it assumes prosecution.”[59]

Article 10

245.     Since, in accordance with general education legislation (article 2 of the Financing of Schooling and Education Act), the provisions on the objectives of schooling and education in Slovenia explicitly refer to “education for respecting children’s and human rights and basic freedoms” (indent 2), the Slovene education authority and all other entities involved in educational relations are obliged to do everything in their power to include teaching content aimed at pursuing this objective in curricula, and in the everyday implementation of schooling and education.

246.     A special duty to inform people of the prohibition of violations of human rights can also be found in the provision of point 20 of the Rules of Service in the Slovene Armed Forces, according to which “military persons must be informed of the military rules of service immediately upon their appointment to military service positions”.

247.     Criminal substantive law, criminal procedural law and international public law (including international military and humanitarian law) are compulsory teaching subjects within undergraduate law studies at faculties of law in Slovenia.  Misdemeanour law, international criminal law, European law, international organizations and similar subjects of study are either compulsory or optional compulsory subjects at faculties of law in Slovenia.  Teaching content on human rights is an essential constituent part of practically all subjects taught by these faculties.  This material is also on the reading list for examination papers.

248.     The teaching programme of the Police and Security Higher School, which is an associate member of the University of Ljubljana, covers content on human rights, forming an essential part of at least the following subjects:  constitutional law, criminal law, criminal procedural law, administrative procedure and administrative dispute, international law, police authorizations, the normative regulation of private security, supervision of the operation of the state administration and administrative ethics, the personal status of an individual, the theory of police work, border problems and foreign persons.  Students at this school are systematically acquainted with the provisions of the main chapters of international legal acts in the area of the protection of human rights.  This material is also on the reading list for examination papers.

249.     Students, cadets and all other police officers are separately acquainted with the Police Code of Ethics.

250.     The beginnings of the Police Code of Ethics, or the idea for formulating this document, date from before the democratic changes which took place in Slovenia.  The Code was later determined as the major objective of the Proposal for the Macro-Organization of Internal Affairs Agencies (December 1991).

251.     The Police Code of Ethics contains general and fundamental principles, sets out mutual relations between authorized officials of internal affairs agencies in the Republic of Slovenia and their relations with citizens, institutions and bodies, and defines liability for violations of the Code.  The Code observes the provisions of international conventions, declarations and moral-ethical police standards.  It was adopted in September 1992.

Article 11

1.

252.     Slovene legislation incorporates a number of provisions introduced to facilitate the systematic supervision of the rules, instructions, methods and practice of interrogation, of guarding arrested, detained and imprisoned persons, and of the treatment of these persons in general.  These provisions are implemented by special inspection services and by obligatory periodical field supervisions exercised by these or other services, by various ex officio competencies vested in different services, obligatory reports which must be submitted to superior and competent services, and so on.

253.     For example, the Criminal Procedure Act contains a special provision according to which an internal affairs agency which has detained or restricted the movement of a specific person (article 148 of the ZKP - see above for details, under II) must send a special report on these measures to the state prosecutor “even if the information gathered provides no basis for a crime report” (article 148/VII).  This involves an important instrument for restricting the (excessive) use of these measures and, at the same time, for supervising these measures.

254.     Under article 6/II of the Internal Affairs Act, an “internal affairs agency director who has been informed that an internal affairs agency worker has done something in contravention to his duty or failed to do something in line with his duty (…) must, within 30 days, notify the person who informed him of this of what action he has taken in connection with this”.  This is a special form of legally-regulated and comprehensive public supervision of the operation of internal affairs agencies (particularly of the police force).[60]

255.     In accordance with the Rules on the Exercise of the Authorizations of Authorized Officials of Internal Affairs Agencies, the lawfulness of all police detentions ex officio is supervised by police unit chiefs.  Under the same rules, the officer on duty in a police station must continuously monitor detained persons (via acoustic or optical systems, or directly) and is obliged to prevent any attempt by a detained person to inflict an injury on himself or an attempt by a third person to harm a detainee unlawfully.

256.     If a foreign person is detained in Slovenia, the Rules on the Exercise of the Authorizations of Authorized Officials of Internal Affairs Agencies specify that these authorized officials must, via the RS Ministry of the Interior or if necessary the RS Ministry of Foreign Affairs, immediately notify the relevant diplomatic/consular representative office.  This is an additional method of facilitating supervision of the lawfulness of deprivations of liberty.

257.     Under the provision of article 525/II of the ZKP, in the event of the detention of a foreign person “the internal affairs agency shall, without delay, bring the arrested foreign person before the investigating judge of the court with jurisdiction for interrogation”.  The following provision of the same paragraph is particularly interesting:  “If the investigating judge orders the remand in custody of the foreign person, the investigating judge shall inform the Ministry of the Interior thereof”.  This is a form of additional official supervision of the exercise of the foreign person’s right to freedom in Slovenia.

258.     Under the provision of article 200/II of the ZKP, “remand in custody shall last the shortest possible time.  All agencies participating in criminal proceedings and agencies which provide legal assistance to them shall be duty bound to proceed with special dispatch if the accused has been remanded in custody”.  In this sense the said entities are bound, ex officio, to be alert to possible delays and to take all steps necessary to facilitate the proceedings.

259.     Under the provisions of article 213/I of the ZKP and article 101/I (9) of the Courts Act, supervision of the treatment of detainees is exercised ex officio by the president of the locally competent circuit court, i.e. the higher form of court of the first instance.  The ZKP states:  “The president of the court or a judge designated by him shall visit detainees at least once a week and, if he deems it necessary, gather information from detainees, even without the presence of the warden or guards, about the quality of the food, the provision of other supplies and the way they are treated.  He shall be bound to take the necessary steps to remove the irregularities found during the inspection of the prison.  The judge designated by the president of the court may never be the investigating judge.”

260.     Under the provision of article 473/III of the ZKP, in relation to minors on remand the juvenile judge shall have the same rights as the investigating judge in relation to detainees.

261.     Under the provisions of article 31/II of the ZIKS and article 101/I (9) of the Courts Act, supervision of the treatment of prisoners is exercised ex officio by the president of the locally‑competent circuit court.  In his exercise of supervision, the judge “gathers information from detainees on how they are treated and on the implementation of their rights without the presence of any workers employed at the correctional penitentiary institution” (ZIKS).

262.     Under the provision of article 489 of the ZKP, the administration of an institution in which a correctional measure against a minor is implemented “shall be bound to report every six months on the conduct of a minor to the court which pronounced the educational measure”.  The juvenile judge may pay personal visits to minors committed to the institution.  The juvenile judge may gather information on the enforcement of other educational measures through the intermediary of a social welfare agency, and may entrust this task to a particular specialist (social worker, special-education teacher and others) if there is one on the court staff.  Under the explicit provision of article 489/II of the ZKP, “the social welfare agency shall be bound every six months at least to inform the court which pronounced the educational measure of the implementation thereof”.

263.     General supervision of the enforcement of prison sentences is also performed by the RS Ministry of Justice (article 31 of the Criminal Sanctions Enforcement Act), or more precisely, its organizational unit (the Administration for the Enforcement of Criminal Sanctions).

264.     The Criminal Sanctions Enforcement Act incorporates a number of general and special duties vested in national bodies; one such duty is to monitor, ex officio, the protection of human rights in relation to the enforcement of criminal sanctions.  So, for example, article 5/II of the ZIKS contains the following provisions:  “In order to improve the measures relating to the enforcement of criminal sanctions, the RS Ministry of Justice and other bodies responsible for the enforcement of criminal sanctions shall cooperate with scientific organizations, professional associations, and other interested bodies, organizations and communities”.  With regard to the repeated disciplinary sanction of a minor serving a juvenile detention sentence, article 107/III of the ZIKS sets out the special duty to inform the RS Ministry of Justice of the following:  “In the event that the disciplinary sanction of committal to confinement is pronounced for a minor for the second time within three months, the warden of the correctional penitentiary institution shall inform the RS Ministry of Justice of every further pronouncement of this punishment”.

265.     Under article 201/III, supervision of the correctional centre is exercised ex officio by the RS Ministry of Justice.

266.     As for the security measure of compulsory psychiatric treatment under the KZRS, the court which pronounced this measure is responsible for monitoring its enforcement.  The provision of article 64/II of the KZRS states:  “The discharge of the perpetrator from the health institution shall be ordered by the court upon its determining that treatment and detention are no longer necessary.  After the lapse of each consecutive period of one year, the court shall decide whether further treatment and custody are necessary.”  Similarly, the provision of article 65/III of the KZRS states:  “After a period of one year, the court shall consider whether further compulsory psychiatric treatment at liberty is necessary”.

267.     Related official duties are vested in the court with respect to the supervision of the enforcement of a pronounced educational or educational/security measure of committal to a training institution.  Article 81/IV of the KZRS includes the following provision:  “If such an educational measure has been ordered for a juvenile offender instead of the security measure referred to in the second paragraph of the present article, after the lapse of each consecutive calendar year the court shall reconsider whether further treatment and custody are necessary for the offender.  When the juvenile offender becomes an adult, the court shall examine whether his further stay in the institution is necessary or whether he should be transferred to a corresponding institution for adults”.

268.     In addition, the court monitors ex officio the enforcement of the pronounced educational measure of committal to a correctional institution.  The provision of article 80/III of the KZRS prescribes the following:  “Such a measure shall be administered for an indefinite period of time and the court shall subsequently order its termination”.

269.     A special possibility for supervision of the treatment of accused minors is set out in misdemeanours proceedings.  Under article 234 of the Misdemeanours Act, the following entities are charged with the special right to be informed of developments within proceedings against minors, as well as the right to give proposals and draw attention to facts and evidence important for passing a just ruling:  social care bodies, the parents of the accused, or the adoptive parent, foster parent or custodian of the accused.  This is a special form of supervision of the operation of the State, which is potentially effective in terms of preventing torture and related unlawful encroachments on the rights of accused or convicted persons.

270.     Official supervision of the military is separately regulated in article 85 of the Defence Act.  The full text of this article reads as follows:  “(I) The minister shall be obliged to enable the working body of the National Assembly competent for supervision of the work of security intelligence services to exercise constant supervision of the work of the security intelligence service at the ministry and the military police.  (II) The minister shall submit to the working body referred to in the previous paragraph a regular annual report on the work of the security intelligence service at the ministry and the military police, as well as on the use of special operational methods and means”.  Similarly, article 86 of the same act sets out the obligations of the Defence Inspectorate and, along with them, official supervision of the observation of human rights in the military.

271.     Under article 32 of the Defence Act, the supplementary special services (the intelligence security service of the RS Ministry of Defence and the military police) are obliged to carry out, ex officio, the prevention, detection and legal investigation of criminal offences at the ministry and in the Slovene Armed Forces, including cases which involve torture and other cruel, inhuman and degrading treatment or punishment.

272.     Under the provision of point 43/II of the Rules of Service in the Slovene Armed Forces, all persons who have higher ranks or positions are obliged to intervene in order to prevent other persons from committing a criminal offence, irrespective of whether they have the power to issue orders or not.  This undoubtedly includes the prevention of torture and other cruel, inhuman and degrading treatment or punishment in the military.

273.     According to the Rules of Service in the Slovene Armed Forces (point 53/IV), military persons facing an order which at the same time constitutes solicitation to commit a serious criminal offence “must refuse to execute such an order (…) and as soon as this is possible notify the superior of the military person who has issued such an order of this”.  The superior who receives this notification must then notify his superior headquarters, which in turn must notify the General Headquarters of the Slovene Armed Forces.

274.     Under article 42 of the Human Rights Ombudsman Act (Ur. l. RS No. 73/93), the Human Rights Ombudsman may “enter the official premises of any national body, local community body or holder of public authorizations” and, in particular, “carry out examinations of prisons and other premises in which persons deprived of their liberty reside, as well as of other institutions in which freedom of movement is restricted; he may also do so upon his own initiative” (article 26/II).

275.     In conclusion, we must stress the efforts made by the law and other sciences towards a prompt analysis of rules, instructions, methods and practices of interrogation within the meaning of article 11 of the Convention against Torture.  With respect to their central activities, this problem is dealt with by various bodies and organizations at the Slovene universities and at independent higher education institutions.  For example, in the last five years scientific legal and criminological research has been carried out by the Faculty of Law of the University of Ljubljana, the Institute of Criminology at this faculty, and others.

2.

Statistics and specific features in practice

276.     On page 43 of his 1996 annual report to the RS National Assembly, the Human Rights Ombudsman stated that judges, as a rule, regularly monitored detainees by carrying out the prescribed personal visits while also drawing attention to the concrete example of an institution for the enforcement of sentences which was not visited by judges on a regular basis for several weeks during the year.  He also drew attention to a statement (which in his opinion is legally unacceptable) made by a judge/president of a circuit court (a higher form of a court of the first instance), claiming that “the procedure of monitoring a detainee (…) does not cover the detainee’s treatment of himself” or, in other words, does not cover any danger that a detainee with strong suicidal tendencies might pose to himself.

277.     As mentioned before (see report above), since the very beginning of his work the Human Rights Ombudsman has regularly criticized the insufficient judicial and other types of supervision of forced hospitalization in psychiatric institutions.

278.     As an interesting issue, which at least implicitly shows the level of qualification of State officials directly charged with tasks relating to the protection of persons who have been deprived of their liberty, we would like to mention the educational structure in institutions for the enforcement of prison sentences and in the Radeče Correctional Centre (the only correctional centre in the RS) as on 31 December 1997.  According to official data (Source:  MP RS), on that day, of the total number of employees (866), 63 employees had less than secondary level education (7.2 per cent), 566 employees had a secondary education (65.4 per cent), 142 had two years of higher education (16.4 per cent) and 95 employees had higher education (11 per cent).  None of the employees had a Master’s degree or doctorate.

Article 12

1.

279.     Since the treatment covered by the Convention against Torture (articles 1/I and 16/I) is rendered a criminal offence by criminal law in Slovenia (see the above report on article 1 of the Convention against Torture for details), criminal sanctions arising from it are pronounced by courts (in accordance with the ZKP and the Courts Act).  The role of prosecution in courts is played ex officio by State prosecutors (in accordance with the ZKP and the Office of the State Prosecutor Act, Ur. l. RS No. 63/94), while preliminary criminal investigation is the responsibility of the police, under the special supervision of the competent State prosecutor (in accordance with the ZKP and the Internal Affairs Act).

280.     Under article 125 of the Constitution of the Republic of Slovenia, “judges shall independently exercise their duties and functions in accordance with this Constitution and with the law”.  This provision is concretized in a number of provisions of the Constitution (method of election, incompatibility of the function of a judge with certain other functions and activities, the criminal-law immunity of judges) and in specific pieces of primary and secondary legislation.  The strict educational and other criteria for selection and permanent office (in accordance with the Judicial Services Act, Ur. l. RS No. 19/94) additionally guarantee elementary independence for the judiciary.  In addition, judges are guaranteed a relatively good economic status by law.

281.     The system of regular and extraordinary legal instruments within criminal proceedings (the ZKP) ensures a great deal of formal independence for courts of the lower instance even with respect to standpoints held by courts of the higher instance, since there is no formal dependence of lower-instance judges on decisions rendered by higher-instance courts.

282.     An instrument of formal internal control within the judiciary aimed first and foremost at confronting unnecessary delays can be found in particular in the provisions of article 185 of the ZKP.  This article reads as follows:  “(I) If an investigation is not completed within a period of six months, the investigating judge shall be bound to inform the president of the court of the reasons for this.  (II) The president of the court shall take the necessary steps for the investigation to be brought to a close.”

283.     State prosecutors are appointed by the RS Government at the proposal of the RS Minister of Justice, as the supreme body of executive power in the country, except for the Attorney-General, who is appointed by the RS National Assembly (in accordance with the Office of the State Prosecutor Act).  The selection criteria are linked to the criteria applying to judges.  The term of office of State prosecutors is permanent.  As with judges, State prosecutors are guaranteed a relatively good economic status by law.

284.     In accordance with the ZKP, State prosecutors officially (ex officio) prosecute all officially prosecutable criminal offences, i.e. criminal offences for which substantive criminal

law does not separately provide for private-law prosecution or criminal prosecution on the basis of a proposal (according to valid Slovene legislation, the great majority of offences are officially prosecutable in accordance with the KZRS).[61]

285.     Supervision of the work of prosecutors is set out in the Office of the State Prosecutor Act. Among other things, this act governs the supervision of the work of lower-level prosecution entities by higher-level prosecution entities, and the relation between the RS Ministry of Justice and Slovene lower- and higher-level prosecution entities.  For example, the following provisions can be found:  “(I) Regional State prosecutor’s offices shall be obliged to inform the Office of the State Prosecutor of the Republic of Slovenia without delay of criminal matters of wider public importance or in which the basic legal issues of criminal prosecution are unclear.  (II) In connection with the carrying-out of his competencies, the Minister of Justice may demand that State prosecutor’s offices report to him on matters they are dealing with.”  Article 62 further declares:  “State prosecutor’s offices shall send an annual report to higher-level State prosecutor’s offices and to the Ministry of Justice, and the Office of the State Prosecutor of the Republic of Slovenia shall send a combined annual report on the work of State prosecutor’s offices to the National Assembly.”  In addition, article 64 states:  “(I) The Attorney-General of the Republic of Slovenia shall issue general instructions on the activities of State prosecutors relating to the uniform application of the law in State prosecutor’s offices and to the coordination of prosecution policy.  (II) In matters within their competence, the heads of regional or higher State prosecutor’s offices may issue compulsory general instructions on the activities of State prosecutors and State prosecutor’s offices.  (III) Before a State prosecutor issues instructions under the first or second paragraph of this article, the proposed instructions must be debated at a meeting of regional and higher State prosecutors.  (IV) The instructions under the first and second paragraphs of this article must be issued in writing.”

286.     Special attention must be drawn to article 65 of the same Act, which reads:  “(I) If a State prosecutor believes that following the instructions would lead to a decision that would be in violation of the Constitution or the law, or if he has other serious doubts concerning the instructions, he shall report this (in writing) to a higher leading State prosecutor and to the issuer of the instructions.  He shall send this notification before performing the procedural act or applying the measure to which the instruction relates, unless delaying the procedural act or measure would have irredeemable legal or material consequences.              (II) If a State prosecutor is convinced that unconstitutional or damaging actions are being required of him, the higher State prosecutor shall relieve him of further work in the matter concerned, unless there is a danger that this could lead to an irredeemable delay to an urgent procedural act or measure.  (III) In the case referred to in the second paragraph of this article, the superior State prosecutor shall decide on the matter or shall allocate it to another State prosecutor with his consent.”

287.     The other relevant articles of this act read as follows.

288.     Article 66.  A superior and higher State prosecutor may take over an individual matter or task for which a lower State prosecutor is otherwise competent.

289.     Article 67.  (I) A higher State prosecutor’s office shall carry out an inspection of the operations of regional State prosecutor’s offices in its area by inspecting the documents to which it demands access and in some other appropriate manner, and at least once every three years by directly reviewing the documentation and the records at the regional State prosecutor’s office.

(II) The Office of the State Prosecutor of the Republic of Slovenia shall also exercise its right to the inspection of lower-level State prosecutor’s offices in the manner stipulated in the preceding paragraph, whereby it must carry out a direct inspection of the operations of higher State prosecutor’s offices at least once every three years, and the operations of regional State prosecutor’s offices at least once every four years.  (III) The reports on the general inspections referred to in the first paragraph of this article shall be sent to the Attorney-General of the Republic of Slovenia and to the Minister of Justice.  Reports on the general inspections referred to in the preceding paragraph shall also be sent to the Minister of Justice.  The State prosecutors at the body whose operations were inspected must be acquainted with the findings of the inspection.

290.     Article 68.  (I) Complaints based on inspection in connection with the work of a regional State prosecutor shall be sent to the competent head of the higher State prosecutor’s office, and complaints based on inspection in connection with the work of other State prosecutors shall be sent to the Attorney-General.  If a complaint based on an inspection is not obviously  unsubstantiated, the competent head of the State prosecutor’s office shall acquaint the State prosecutor to whose work the complaint pertains with its contents, and require from him an explanation or a report on the circumstances or facts cited by the complainant.  (II) Unless otherwise determined by law, inspection of the records and other documentation of a State prosecutor’s office shall only be permitted by State prosecutors and State officials from the Ministry of Justice assigned to the ministry as State prosecutors.  (III) A court or the National Assembly may demand to inspect the documents referred to in the preceding paragraph insofar as they relate to the subject of criminal proceedings or to a parliamentary inquiry.  (IV) The Minister of Justice may permit the inspection of the records and documents of a State prosecutor’s office by persons who demonstrate that the data contained in the records is required for scientific research.  This permission may be limited to archived documents and records.

291.     Of course, anyone has the right to file a suit against criminal offences committed by a State prosecutor by way of the transgression or abuse of his official authorizations, although the suit can be lodged only with the competent State prosecutor (which in practice and as a rule is the State prosecutor against whom the suit is being lodged).

292.     A special supervisory function in Slovene criminal proceedings is performed by the possibility of subsidiary prosecution, i.e. privately assuming the prosecution case from the State prosecutor as generally specified in the ZKP.  Among other things this act states the following.

293.     Article 60.  (I) If the public prosecutor finds that there are no grounds for prosecuting a criminal offence by virtue of office or for prosecuting some of the accused participants, he shall, within eight days, inform the injured party thereof and shall instruct him that he may start prosecution by himself.  The same procedure shall be applied by the court when the public prosecutor abandons prosecution.  (II) The injured party shall be entitled to institute or continue prosecution within eight days of the day he received the information from the preceding paragraph.  (III) If the public prosecutor withdraws the charge sheet, the injured party may continue prosecution under the preferred charge sheet, or may file a new charge sheet.  (IV) Where the injured party has not been informed that the public prosecutor has failed to begin prosecution, the injured party may, within three months of the day the public prosecutor dismissed the crime report, declare before the competent court that he wishes to continue prosecution.  (V) The public prosecutor or the court shall, in informing the injured party that he may begin prosecution, also instruct him of the steps he may take to exercise that right.  (VI) If the injured party, in his capacity as prosecutor, dies before the term for starting the prosecution expires, or if he dies while proceedings are in progress, his spouse or the person with whom he was living in domestic partnership, as well as his children, parents, adopted children, adoptive parents, brothers and sisters may, within three months of his death, institute prosecution or declare that the prosecution be continued.

294.     Article 61.  (I) If the State prosecutor withdraws the charge sheet at the main hearing, the injured party shall be bound to declare forthwith whether he intends to continue with prosecution.  If the injured party, after being duly summoned, fails to appear at the main hearing, or if the summons could not be served on him for failure on his part to inform the court of a change of address or place of residence, it shall be considered that he does not intend to continue with prosecution.  (II) The presiding judge of the panel of the court of first instance shall grant the reinstatement of the previous state of affairs to the injured party who was not duly summoned or, although duly summoned, was for legitimate reasons prevented from appearing at the main hearing at which, following the withdrawal of the charge sheet by the public prosecutor, a ruling was passed to drop charges, provided that within eight days of the day the ruling was served on him the injured party requested the reinstatement of the previous state of affairs and declared in the request that he wished to continue with prosecution.  In that case, a new main hearing shall be scheduled and the previous ruling invalidated by a ruling issued on the basis of the new main hearing.  If a duly-summoned injured party fails to appear at the new main hearing, the previous ruling shall remain in force.  (III) In the case referred to in the preceding paragraph, the provisions of the third and fourth paragraphs of article 58 of the present Code shall be applied.

295.     Article 62.  (I) If within the time limit prescribed by law the injured party fails to institute or to continue with prosecution, or if the injured party, in his capacity as prosecutor, fails to appear at the main hearing although duly summoned, or if the summons could not be served on him because of his failure to inform the court of a change of address or place of residence, it shall be considered that he has abandoned the prosecution.  (II) In a case where the injured party, after being duly summoned, fails to appear at the main hearing, the provisions of the second to fourth paragraphs of article 58 of the present Code shall be applied.

296.     Article 63.  (I) The injured party, in his capacity as prosecutor, shall have the same rights as the public prosecutor, with the exception of those vested in the public prosecutor ex officio.

(II) In proceedings conducted at the request of the injured party in his capacity as prosecutor, the public prosecutor shall be entitled to take over and act for the prosecution at any time pending the conclusion of the main hearing.

297.     Article 64.  (I) Where the injured party is a minor or a person declared legally incapable of work, his legal representative shall be entitled to make all statements and perform all acts which the injured party is entitled to make or perform under the present Code.  (II) An injured party who has reached the age of 16 shall be entitled to make statements and perform procedural acts by himself.

298.     Article 65.  (I) The private prosecutor, the injured party and the injured party in his capacity as prosecutor, as well as their legal representatives, may exercise their rights in connection with the proceedings through the intermediary services of an attorney.  (II) If a criminal offence punishable by imprisonment of more than three years is tried in court, the court may, upon petition of the injured party acting as the prosecutor, appoint an attorney for the injured party if that is in the interests of the proceedings and if the injured party cannot afford to pay the expenses of representation.  The petition shall be decided upon by the investigating or presiding judge, and the attorney shall be appointed by the president of the court from among members of the Bar.

299.     The final appointment of misdemeanours judges in the Republic of Slovenia is the responsibility of the RS National Assembly (Misdemeanours Act (Changes and Additions), Ur. l. RS No. 87/97).

300.     The Human Rights Ombudsman, as an institution anchored in article 159 of the Constitution of the Republic of Slovenia and the Human Rights Ombudsman Act, is responsible ex officio for monitoring the observation and exercise of human rights in Slovenia (see especially article 26/II of the Human Rights Ombudsman Act).  In addition, he is also responsible ex officio for introducing suitable procedures in the event that he receives an initiative for the introduction of proceedings relating to violations of human rights (article 28 of the Human Rights Ombudsman Act).  Under articles 2 and 12 of the Human Rights Ombudsman Act, or chapter II of this Act, the Human Rights Ombudsman is elected by the National Assembly by means of a qualified majority.  The Human Rights Ombudsman enjoys independence in the performance of his work.  To date, no public complaints against possible partiality or against potential political or other biases by the Human Rights Ombudsman have been recorded.

2.

Statistics and specific features in practice

301.     The deprivation of any person’s liberty without legal basis (i.e. unlawfully) in any legal proceedings (including criminal, misdemeanour, disciplinary, administrative, non-contentious and other proceedings) constitutes unlawful treatment, which is officially prosecuted in Slovenia as a criminal offence (false imprisonment, article 143/II of the KZRS) and, at the same time, in parallel, as a disciplinary offence (article 4 of the State Administration Workers Act and article 57 of the Defence Act).  In practice, both criminal procedures, as a rule, run parallel to each other and are dependent on one another.  By the nature of the matter, the disciplinary procedure is normally completed before the criminal procedure.

302.     The situation in practice is similar in cases of discrimination, extortion, maltreatment, bodily harm and so on, when these phenomena emerge within the said legal proceedings dealing with the transgression or abuse of official authorizations.  All these violations involve aspects of both criminal offence and disciplinary offence, and both procedures run parallel to each other as a rule.  In this sense, an unlawful act committed in the military and with aspects of a criminal offence must always be investigated twice.  This is because any criminal offence committed in the military is always, at least implicitly, also defined as a disciplinary offence.

303.     As for the judicial protection of human rights, in his 1996 annual report to the National Assembly (Source:  RS Human Rights Ombudsman) the RS Human Rights Ombudsman states that “most judicial procedures (…) are unreasonably long”.  This results in huge delays in courts, undermining the legal protection of people (p. 107/1996), while the number of criminal prosecution cases subjected to the statute of limitations is also rising at an abnormal rate (see p. 117/1996).  The Human Rights Ombudsman maintains that the so-called supervisory appeals arising from unreasonable delays in pursuing legal remedy (p. 111/1996) are particularly ineffective.  In addition, he draws attention to two cases of incorrect response by judges to legal interventions initiated by the Human Rights Ombudsman (p. 112/1996).

304.     The RS Human Rights Ombudsman also believes that the number of delays related to the work of misdemeanours judges and the number of misdemeanour cases subjected to statutes of limitations are at a critical level and entirely unacceptable for a State governed by the rule of law (p. 118/1996).  This can also be construed from the Human Rights Ombudsman’s special reports for 1997 (Source:  RS Human Rights Ombudsman).

305.     On page 117 of his 1996 report to the RS National Assembly, the RS Human Rights Ombudsman stated that the number of initiatives in connection with the work of State prosecutors was “relatively low”.  Most of these initiatives were introduced by injured parties which, in their complaints, stressed that there had been either unreasonable delays in the decision-making process or expressed disagreement with the ruling passed on the basis of the lodged crime report.  The Human Rights Ombudsman highlighted the fact that the response by State prosecutors to his interventions was “prompt and correct”.  He also stressed that, in practice, there were very few complaints lodged on the basis of article 148 of the ZKP (complaint lodged with a prosecutor against actions of internal affairs agencies within preliminary criminal proceedings).  The Human Rights Ombudsman’s special reports for 1997 included no significant criticisms of the work of State prosecution bodies (Source:  RS Human Rights Ombudsman).

306.     Special attention should be given to the danger of discrimination against members of certain special population groups within criminal proceedings, either in terms of the discriminatorily strict treatment of perpetrators who are members of these groups, or in terms of the discriminatorily superficial treatment of victims who are members of these groups (also, and in particular, with respect to issues of torture within the meaning of the Convention against Torture).  In addition to various ethnic groups, foreign persons, homosexual and transsexual persons, members of the Roma community are, for various reasons (which are very complex and hard to control), subjected to potential discriminatory treatment.

307.     The authorities of the Republic of Slovenia have stated that, in Slovenia, Roma occupy a “significant place” among “those who violate laws and other regulations”, and that (also as a result of this) they are frequently the target of “indisposition and intolerance on the part of the majority population” (Source:  Information of the RS Government on the Position of Roma in the Republic of Slovenia), and therefore implicitly subject (at least potentially) to state prosecution in practice.  For the purpose of eliminating potential discrimination against Roma, the RS Government is carrying out various projects of adjustment of the lifestyle of Roma to that of the local population, with the eventual aim of improving their overall social status (see appendices on the Roma question).  The Government is also carrying out media and related activities aimed at increasing the majority population’s tolerance of Roma.  With these measures the RS Government wishes to indirectly reduce the probability of the actual unequal treatment of Roma within criminal proceedings,[62] particularly in procedures conducted by the police, including possible cases of torture within the meaning of the Convention against Torture.

308.     The position of Roma and of other marginal population groups (in particular, foreign persons) in the Republic of Slovenia is more or less systematically monitored by different non‑governmental organizations based in Slovenia, which report their findings to the media, the authorities and foreign entities.  Their operation must therefore be dealt with separately as part of the fight against torture within the meaning of the Convention against Torture.

309.     The RS Government has two commissions coordinating the operation of national bodies responsible for minorities.  The Commission for Ethnic Community Issues coordinates the realization of the constitutional obligations which the State has towards the Italian and Hungarian ethnic communities, while the Commission for Roma Issues monitors the implementation of government measures for the protection of Roma.  Both commissions consist of all government departments’ representatives responsible for carrying out individual tasks, as well as representatives of both indigenous ethnic minorities and of Roma.  As a special body of the RS Government, the Ethnic Minorities Office coordinates the work of the two commissions.

Article 13

1.

310.     On the basis of the Constitution of the Republic of Slovenia, whose article 22 declares that “each person shall be guaranteed equality in the protection of his rights in any proceedings before a court, as well as before any government body, local government body or statutory authority which determines the rights, obligations or legal entitlements of such a person”, while article 25 adds that “each person shall be guaranteed the right to appeal and the right to any other legal redress in relation to the decision of any court, government body, local government body or statutory authority which determines the rights, obligations or legal entitlements of such a person”, various Slovene acts govern the rights to lodge a crime report against a criminal offence, appeal or complaint, and the right to other legal redress that can be used in relation to cases of torture within different legal proceedings.

311.     Article 146/I of the Criminal Procedure Act states that:  “Any person may report a criminal offence which is liable to public prosecution ex officio”.  This provision also covers temporarily-detained, detained and imprisoned persons, including persons committed to compulsory psychiatric treatment on any legal basis, soldiers detained by the military police, defendants in criminal proceedings, juvenile detainees in correctional centres, and persons serving prison sentences.  In accordance with article 147/I of the ZKP, crime reports are submitted to the State prosecutor.  Crime reports submitted to the court, an internal affairs agency or an unauthorized State prosecutor are accepted and forwarded to the competent public prosecutor (article 147/III of the ZKP).

312.     In addition to crime reports, preliminary criminal proceedings allow a wide range of appeals that can be lodged with the competent State prosecutor by any directly-affected persons against various coercive measures by internal affairs agencies (the police) and against detention executed by officials at the Ministry of the Interior (the police), while a special appeal may be lodged against the decision on such detention with the external-level panel (panel of three judges) of the circuit court (article 25, in connection with article 157/VII of the ZKP).  The panel must rule on the appeal within 48 hours.

313.     Under the Internal Affairs Act (Ur. l. SRS Nos. 28/80, 38/88 and 27/89, amended by Ur. l. RS Nos. 8/90, 19/91, 4/92, 58/93, 87/97 and 87/97), with respect to possible violations of the rights of a detainee who has been deprived of his liberty by officials at the Ministry of the Interior (including the police), a special appeal may be lodged with the Minister of the Interior (which must rule on the appeal within 48 hours) against any measure executed by officials at the Ministry of the Interior, including police officers.  The same act envisages another possibility for appeal:  an appeal lodged with the Office for Appeals and Internal Protection, a special organizational unit at the RS Ministry of the Interior.  It consists of employees of the Ministry of the Interior, who are appointed by the RS Minister of the Interior.[63]

314.     The Internal Affairs Act sets out a special appeal against detention in accordance with this act.  Articles 50/VI, VII and VIII state:  “Detained persons shall have the right to lodge an appeal with the Minister of the Interior against a decision on detention within 24 hours.  The body which ordered detention must send the decision and the relevant records to the minister for consideration.  The minister must rule on the case within 48 hours.  The appeal shall not stay the execution of the measure.”

315.     Different criminal proceedings envisage a substantial number of various primary possibilities for appeal (e.g.  under article 202/IV or article 432/II of the ZKP) against detention in a criminal case.

316.     Various additional appeals against decisions on detention may be lodged with higher courts, for example, under articles 205/II, 307/II in connection with article 205/II, and 472/II in connection with article 451 of the ZKP.  Another possibility is to use the extraordinary legal instrument – request for the protection of legality (articles 420 to 428 of the ZKP).

317.     In the event of delays to judicial rulings on individual rights or legal interests, an appeal may be lodged with the president of the court or with the RS Ministry of Justice (article 72 of the Courts Act); in addition, an appeal may be filed with the RS Constitutional Court (under articles 50/I and 52/II of the Constitutional Court Act).  In this connection, the provision of article 191 of the ZKP needs to be stressed.  It reads:  “(I) Parties and the injured person may always turn to the president of the court before which an investigation is conducted to complain against procrastination and other irregularities during the investigation.  (II) The president of the court shall examine the allegations contained in the complaints and inform the person who lodged the complaint of any steps taken thereon.”

318.     Under the provision of article 213 of the ZKP and article 101/I (9) of the Courts Act, supervision of the treatment of detainees is exercised by the president of the circuit court, i.e. a higher form of court of the first instance.  As already mentioned in the report, the ZKP stipulates that:  “(I) The president of the court or a judge designated by him shall visit detainees at least once a week and, if he deems it necessary, gather information from detainees, even without the presence of the warden or guards, about the quality of the food, the provision of other supplies and the way they are treated.  He shall be bound to take the steps necessary to remove the irregularities found during inspection of the prison.  The judge designated by the president of the court may never be the investigating judge.  (II) The president of the court and the investigating judge may visit detainees, talk to them and hear their complaints at any time.”  This is an important informal and very simple way to complain, including complaints due to possible torture and other cruel, inhuman or degrading treatment or punishment.

319.     In general and in accordance with the general principles of the right to appeal covered by the criminal procedural law included in the ZKP, there are a number of different possibilities for appeal against all important rulings by judges in criminal proceedings.

320.     Under the Criminal Sanctions Enforcement Act, a convict who believes that his rights were violated during his sentence, “or because of other irregularities”, may appeal to the warden of the institution in which he is serving his sentence (article 75).  If he does not receive a response to his appeal or if he is not satisfied with the warden’s decision, he has, in principle, the right to appeal to the RS Ministry of Justice (with the exception of decisions on the pronouncement of disciplinary sanctions, excluding the severest disciplinary measure of committal to confinement, where appeal is nevertheless permitted).

321.     An appeal against the disciplinary sanction of committal to confinement may be filed with the RS Ministry of Justice (Administration for the Enforcement of Criminal Sanctions at this ministry) within three days of the receipt of the decision.  The ministry must rule on the appeal within three days by upholding, modifying or annulling the decision (article 79/III of the ZIKS).

322.     Under the explicit provision of article 75/III of the Criminal Sanctions Enforcement Act, a convict is also always entitled to the right to file an appeal “due to violations of his rights and because of other irregularities” with the president of the locally-competent circuit court, who is responsible for exercising supervision of the enforcement of prison sentences (article 101/I (9) of the Courts Act).

323.     Under the provision of article 107 of the ZIKS, the disciplinary sanction of committal to confinement may be pronounced for a convicted minor serving a juvenile detention sentence for the severest violations of prison rules, work discipline and official orders, but may not exceed seven days of confinement.  The procedure of pronouncement and the possibilities for appeal are the same as those applying to adult convicts in accordance with article 102 of the ZIKS.  A special mention must be made here of article 107/III of the ZIKS, which reads:  “In the event that the disciplinary sanction of committal to confinement is pronounced for a minor more than once within a period of three months, the warden of the penitentiary correctional centre must notify the RS Ministry of Justice (Administration for the Enforcement of Criminal Sanctions at this ministry) of every repeat pronouncement of this disciplinary sanction.”

324.     An appeal against a decision on the disciplinary sanction of committal to a separate room as the severest disciplinary sanction during the enforcement of the educational measure of committal to a correctional centre may be filed by the minor with the RS Ministry of Justice

(Administration for the Enforcement of Criminal Sanctions at this ministry) within three days of the pronouncement of this sanction.  The ministry must rule on the appeal within three days by upholding, modifying or annulling the decision (article 209/IV of the ZIKS).

325.     The Criminal Sanctions Enforcement Act and the Regulations on the Enforcement of Prison Sentences contain a number of detailed provisions on the convict’s rights to exchange correspondence in an institution for the enforcement of sanctions.  Both legal acts generally permit the free sending and receiving of letters, and in particular the unrestricted filing of requests, initiatives and appeals.[64]

326.     Under the Human Rights Ombudsman Act, persons deprived of their liberty have the “right to send to the Human Rights Ombudsman an initiative for the introduction of a procedure in a sealed envelope” (article 27/III).  The same act authorizes the Human Rights Ombudsman to “perform inspections of prisons and other premises in which persons deprived of their liberty reside, and of other institutions in which freedom of movement is restricted” (article 42/II).  He also has the right to hold conversations with persons kept in these institutions without the presence of other persons (article 42/III).

327.     Judicial protection is, in principle, also permitted with respect to the provisions on the enforcement of criminal sanctions:  an administrative dispute before the RS Administrative Court.

328.     Within misdemeanours proceedings, an appeal against a decision in the first instance may, in principle, be filed with the relevant-instance body.  In addition, a number of extraordinary legal instruments may be used (chapter 13 of the Misdemeanours Act), including a request for judicial protection, which must be lodged with the Supreme Court of the Republic of Slovenia (article 201/II).  Under the provision of article 202, an appeal may also be lodged against a decision issued in the second instance if a prison sentence has been pronounced in misdemeanours proceedings.  This is possible if the misdemeanours ruling is deemed to have violated substantive or procedural law, if the procedure of determining the actual state of affairs was incomplete, or if incorrect conclusions regarding the actual state of affairs were made on the basis of the facts decided (article 203).

329.     Under the Rules of Service in the Slovene Armed Forces, which apply to all persons carrying out military service and as such subjected to obedience to superiors defined by public law, military persons have, under article 94, the right to file an objection or an appeal.  The appeal may refer to official affairs, or to treatment by another military person, superior or unit.  The complaint may be filed only via official channels, i.e. directly with the superior officer who has the authority to decide.  The latter must investigate the complaint and, if it is within his competence, to rule on the complaint within seven days; otherwise, he must, within three days, deliver the complaint to the competent person, who must then rule on the complaint within seven days.  Under article 95/II, a superior may not retain a complaint which he is not competent to rule on.  If a superior does not rule on the complaint within the prescribed time limit, or if the complainant is not satisfied with his decision, the complainant may file his complaint with a higher-ranked superior (article 96); again, he may do so only via official channels or, in other words, file the complaint directly with the superior.  The filing of a complaint directly with a higher-ranked superior is not separately envisaged in law.

330.     Under article 86 of the Defence Act, a military person has the right to “notify the Defence Inspectorate”, which is a body with administrative/inspection authorizations in the area of defence.

331.     In accordance with article 26 of the Human Rights Ombudsman Act, like any other person who believes “that a document or an action by a state body, local government body or holder of public authorizations violates human rights or basic freedoms”, including violations by military persons or superior officers in the military, military persons may file an initiative for the initiation of a procedure with the Human Rights Ombudsman.  This possibility for an appeal is also explicitly permitted by the provision of article 52 of the Defence Act (“military personnel may request that the Human Rights Ombudsman initiate a procedure if they believe that their rights or basic freedoms have been limited or violated during military service”), and by article 104 of the Rules of Service in the Slovene Armed Forces, although as a piece of secondary legislation issued on the basis of the Defence Act the Rules of Service declare the appeal to the Human Rights Ombudsman to be a subsidiary instrument to be used when all other appeal channels within the military system are exhausted (article 104/II of the Rules of Service).

332.     The Organization and Financing of Schooling and Education Act envisages special appeal channels in the event of violations of the rights of a child in nursery schools and schools.  Under the provision of article 49, the councils of public nursery schools and schools “decide on complaints related to the rights, obligations and responsibilities of workers arising from labour relations, complaints expressed by parents in relation to schooling and educational work in nursery schools and schools”, including violations which exhibit signs of torture and other cruel, inhuman and degrading treatment or punishment.  Under the provision of the fifth indent of article 66/III of the same act, the parents’ association, as a special counselling and supervisory body in schooling and educational institutions, deals among other things with complaints raised by parents in relation to schooling and educational work.

333.     With respect to violations of the rights of a child in school, the possibility of “reporting violations” to the school inspectorate is envisaged in the Education Inspection Act.  An appeal may be lodged with the RS Ministry of Education and Sport against a decision by the inspectorate (article 21).

334.     Under article 492/V of the ZKP, an appeal may be lodged within the security measure procedure which results in forced detention in a psychiatric institution against the court’s decision (written ruling) on the compulsory detention of a person who has committed a criminal offence in an incapacitated state; this kind of appeal has very wide active legitimacy (in addition to the accused person, it may include his defence counsel, spouse, extra-marital partner, lineal relatives, brother, sister, adoptive parent, adoptive child and custodian).

335.     According to the Non-Contentious Proceedings Act, it is also possible to file a similar appeal in cases of forced detention in a psychiatric institution outside criminal proceedings.  The act declares that “(…) An appeal against a ruling on detention may be filed by the detained person, his legal representative or custodian, the competent social care body, the spouse or the person who has lived with the detained person in extra-marital community for a longer period, lineal relatives, persons related to the detained person collaterally up to two removes, and a health organization.  The appeal must be filed within three days (of the receipt of the decision on detention).  The appeal shall not stay the execution of the decision.  The appeal shall be decided by a court of the second instance within three days.  A revision shall be permitted against the decision by the court of the second instance” (article 77).

336.     Slovene health administration law envisages various channels through which appeals may be filed against measures of medical treatment, including forced detention in a psychiatric health institution:  an appeal filed with the health institution, the Slovene Chamber of Medical Practitioners, the Slovene Health Insurance Institute, and the RS Ministry of Health.  Of course, an administrative dispute can also be initiated as judicial protection.  In addition, persons in forced detention may always resort to filing a crime report arising from negligent medical treatment, maltreatment, false imprisonment, bodily harm or any other criminal offence prosecuted ex officio or at the proposal of the injured party.  Finally, under the Human Rights Ombudsman Act, an initiative may be filed with the RS Human Rights Ombudsman.

337.     Under the Constitutional Court Act, anyone who can prove his legal interest (a fact testifying that a regulation or a general act on the exercise of public authorizations proposed to be reviewed by the initiator directly encroaches upon his rights, legal interests or legal status) in a specific case may put forward an initiative for testing the constitutionality and lawfulness of various general legal acts (article 24).

338.     In addition, an appeal may be filed with the Constitutional Court by anyone who believes that an individual act issued by a state body, local government body or holder of public authorizations violates some of his human rights or basic freedoms (article 50/I).  Under the provision of article 51, a constitutional appeal may be filed only when all other legal instruments available in the country have been exhausted.  Exceptionally, the Constitutional Court may rule on a constitutional appeal before all extraordinary legal instruments have been exhausted “if the alleged violation is palpable and if the appellant would suffer irredeemable consequences as a result of the execution of an individual act” (article 51/II).  A constitutional appeal must be filed within 60 days of the receipt of an individual act against which it is possible to file a constitutional appeal (article 52/I).  In particularly justified cases, the Constitutional Court may, pursuant to article 52/III, exceptionally decide a constitutional appeal filed after the expiry of the prescribed 60-day time limit.

339.     The National Assembly incorporates a special working body - the Petitions and Appeals Commission - which deals with appeals arising in all areas.  The Commission normally refers the appellant to the competent bodies (courts, state prosecutor’s offices, etc.) while sometimes acting as an intermediary for finding a non-bureaucratic solution to the appellant’s problems.

340.     The Office of the President of the Republic of Slovenia incorporates a special service:  the Amnesty and Petitions Service.  This service also refers petitions for which it is not competent, or the petitioners themselves, to the competent bodies.

341.     The Office of the Prime Minister of the Republic of Slovenia operates a special service for the protection of the rights of individuals:  the VOX.  Like the service described above, this service also refers petitions for which it is not competent, or the petitioners themselves, to the competent bodies.  This service sometimes acts as an intermediary for finding non-bureaucratic solutions to problems.

342.     Last but not least, with the ratification of the Convention against Torture on 15 April 1993 (published in Ur. l. RS - International Treaties, No.  7/93, 14 May 1993), and with the statement of the National Assembly, Slovenia accepted the jurisdiction of the Committee against Torture, in accordance with article 22 of the Convention.  This means that anyone who alleges that he or somebody else has been a victim of violations of the provisions of the Convention committed by the Republic of Slovenia, or in the territory that falls under the jurisdiction of the Republic of Slovenia, may lodge an individual appeal with the Committee against Torture.

343.     Slovene positive law does not envisage any special legal protection for the appellant or for persons who report an offence within any legal proceedings in relation to torture or other cruel, inhuman and degrading treatment or punishment which would effectively protect these persons against maltreatment or intimidation resulting from a filed appeal or given statement; nor is such protection implemented in practice.  These persons are therefore provided only with the general possibilities of filing an appeal or reporting an offence (see above).

2.  Statistics and specified features in practice

344.     According to its management, the Slovene Police Force “is doing everything to constantly improve the quality of its services”, but mistakes and misjudgements still nevertheless occur.  In 1996, 1,443 complaints were filed with the Complaints and Internal Protection Office at the RS Ministry of the Interior against the work of the police; it is possible to associate some of the complaints with violations of rules set out in the Convention against Torture.  According to the RS Ministry of the Interior (MNZ RS), 17.5 per cent were justified.  The most frequent reason for complaints was disagreement with the measures pronounced by the police against perpetrators, followed by a lack of tact by police officers in their dealing with citizens, failure to take measures, and the use of coercive means.  In terms of number of complaints, the Ljubljana, Maribor and Koper internal affairs administrations head the list (Source:  MNZ RS).

345.     In 1996 the RS Ministry of Justice (Administration for the Enforcement of Criminal Sanctions at this ministry) received 44 complaints by imprisoned persons (2 directly from imprisoned persons, 12 via the RS Human Rights Ombudsman, 2 via the RS National Assembly, 3 via the RS Government, 1 via non-governmental organizations, and 1 via the FRY Embassy).  The complaints referred to inappropriate action taken by workers at penitentiary institutions, inappropriate healthcare, referrals to stricter sentence-serving regimes, irregularities in the exercise of the right to visits, receipt of mail and the use of telephones, poor food quality, threats by and conflicts with other inmates, etc.  After investigating all the complaints (including conversations with individual complainants), the Administration declared that seven complaints were entirely or partly justified (Source:  MP RS).  In 1996 a total of nine convicts complained against pronounced disciplinary sanctions.

346.     In 1997 the RS Ministry of Justice (Administration for the Enforcement of Criminal Sanctions at this ministry) received 65 complaints by imprisoned persons.  This figure included four collective complaints signed by a total of 141 convicts.  The complaints referred to inappropriate action taken by workers at penitentiary institutions, inappropriate healthcare, referrals to stricter sentence-serving regimes, irregularities in the exercise of the right to visits, the receipt of mail and the use of telephones, poor food quality, threats by and conflicts with other inmates, etc.  After investigating all the complaints (including conversations with individual complainants), the Administration declared that 14 complaints were entirely or partly justified (Source:  MP RS).

347.     According to the RS Ministry of Justice, all complaints were “thoroughly and carefully investigated, and reports were requested from the institutions in which the complainants were serving their sentences or in which they were detained; in addition, other relevant information was collected.  The responsible workers of the Administration held personal conversations with the complainants as a rule, and checked with relevant workers at penitentiary institutions possible unclear allegations and information obtained in the complaints procedure”.  In its 1997 annual report, the Administration for the Enforcement of Criminal Sanctions adds:  “If there was a need for this, we also checked the allegations included in the complaint with inmates where, for this purpose, we held conversations with them.  In cases in which we determined that a complaint was entirely or partly justified, in the written reply which we sent to all complainants we clearly specified which right was violated or the reasons for which the action taken or behaviour exhibited by specific workers at penitentiary institutions was disputable.  A copy of the reply was also sent to the institutions in which the complainants were serving their sentences.  We also took the same steps in cases where, on request, we sent specific complaints to other bodies for consideration” (Source:  MP RS).

348.     In 1997 a total of 18 convicts complained against pronounced disciplinary sanctions (Source:  MP RS).

349.     Where complaints were found to be justified, the Administration intervened at the administrations of those institutions in which violations of the rights of imprisoned persons were identified.  The complainants were notified in writing of the conclusions of the Administration in relation to their complaints (Source:  MP RS).

350.     In 1996 the Office of the Human Rights Ombudsman (in early 1997 the Office had 18 employees in addition to the Ombudsman and his three deputies) received a total of 2,513 complaints, of which 761 (30 per cent) referred to court and police procedures, 521 (21 per cent) to administrative procedures, and 302 (12 per cent) to social security issues.  In the same year around 145 (6 per cent) referred specifically to various restrictions of personal freedom.  The remainder of the complaints referred to accommodation issues, commercial public services, labour law issues, etc.  Together with the complaints brought forward from the previous year and a number of reopened cases, the Office of the Human Rights Ombudsman dealt with 3,981 complaints in 1996, of which 82 per cent were completed.

351.     In 1997 the Office of the Human Rights Ombudsman received a total of 2,886 complaints, of which 776 (27 per cent) referred to court and police procedures, 663 (23 per cent) to administrative procedures, and 397 (14 per cent) to social security issues.  In the same year, around 128 (4 per cent) referred specifically to various restrictions of personal freedom.  The rest of the complaints referred to accommodation issues, commercial public services, labour law issues, etc.  Together with complaints brought forward from the previous year and a number of reopened cases, the Office of the Human Rights Ombudsman dealt with 3,854 complaints in 1996, of which 87 per cent were completed.

352.     Finally, in 1996 the Human Rights Ombudsman received 66 complaints, including complaints against alleged unlawful or improper treatment by police officers and other persons authorized by the Ministry of the Interior, while the number of these complaints totalled 63 in 1997.  In 1996 the number of complaints sent by detainees to the Ombudsman was 55 and in 1997 this number was 42.  Prisoners sent 103 complaints in 1996 and 87 in 1997.  The Ombudsman received one complaint by a soldier in both 1996 and 1997 (Source:  RS Human Rights Ombudsman).

353.     See the above sections of the report for references to non-governmental organizations which in one way or another are involved in the monitoring of human rights protection in Slovenia.

Article 14

354.     Article 15 of the Constitution of the Republic of Slovenia generally guarantees the right to obtain redress for the violation of human rights, while article 26 particularly declares that “each person shall have the right to compensation for any damage suffered by him by reason of the wrongful performance by any person or body carrying out any function or other activity of any government body, local government body or statutory authority”.

355.     In addition to regular and general liability for compensation for individual actions, Slovene positive indemnity law (Obligational Relations Act – Ur. l. RS Nos. 29/78, 39/8, 4/89) concretizes article 26 in its article 172, which reads:  “(I) Legal persons shall be liable for damage caused by their entities to a third person during or in relation to the performance of their functions.  (II) If not determined otherwise by law for individual cases, legal persons shall have the right to receive compensation from those who have intentionally caused the damage (…).”  On the basis of this article, individuals who have suffered damage (defined legally in the Civil Proceedings Act) may also demand compensation from the Republic of Slovenia (or exclusively from it) for having been subjected to torture and other cruel, inhuman and degrading treatment or punishment within the meaning of the Convention against Torture (unlawful encroachments on their human rights), if this torture was directly or indirectly inflicted by responsible bodies of the state administration, military, police, penitentiary correctional institutions, judiciary, etc.  In accordance with article 200/I of the Obligational Relations Act, compensation may be demanded for the unlawful infliction of “bodily pain and mental pain resulting from the diminution of human activity, disfigurement, the defamation of one’s good name or honour, the restriction of freedom or the right to privacy, the death of a person close to the affected person, and for fear suffered”.

356.     In the event of the death of the injured party, Slovene civil law sets no restrictions regarding the transfer of the right to compensation for pecuniary claims (except in cases where monetary compensation is granted due to the death of a relative, or due to physical injury suffered or health defects – these rights are not transferable).  The transfer of compensation for non-pecuniary claims in the event of death is possible only in cases where these claims are validated by a written agreement or legally-binding court decision.  On the basis of a valid legal title, all overdue compensation claims are also transferable, since once they become overdue these claims acquire the status of monetary assets (active assets).

357.     Article 19 of the Defence Act reads:  “(I) A citizen who suffers any damage in the execution of defence duties shall have a right to compensation according to general regulations.  (II) A citizen or legal entity shall have a right to the compensation of actual damage suffered during military exercises.  (III) A citizen who, in the execution of defence duties or in any relation to them, deliberately or due to gross negligence causes any damage shall be held responsible according to the regulations on the damage liabilities of employees in state administration.  (IV) The minister responsible for defence (hereinafter:  the minister) shall determine a procedure for the assessment of damages and the payment of compensation as described in paragraph 2 of this article.”

358.     Article 13 of the ZKP reads:  “A person who has been wrongfully convicted of a criminal offence or deprived of liberty without good cause shall have the right to rehabilitation and indemnification, as well as other rights provided by the law.”  Chapter XXXII of the same act governs the proceedings for compensation, rehabilitation and the exercise of other rights wrongfully convicted or arrested persons.  Article 538 reads:  “(I) The right to seek compensation for damages inflicted by a wrongful conviction shall be enjoyed by a person who was convicted or found guilty and then acquitted and the subsequent proceedings of extraordinary judicial review were discontinued, or by a person who was acquitted of the charge or the charge against him was rejected or the charge sheet dismissed, except in instances:  (1) where proceedings were discontinued or a judgement rejecting the charge was passed because in new proceedings the injured party as prosecutor or the private prosecutor refrained from prosecution, or the injured party withdrew the motion and the refrainment and withdrawal were effected in agreement with the defendant; (2) where in reopened proceedings the charge sheet was rejected by a ruling because of the lack of jurisdiction of the court, whereupon the authorized prosecutor started prosecution before the court of jurisdiction.  (II) The convicted person shall not be entitled to seek compensation for damages if, by a false confession or in some other way, he deliberately brought about his conviction, except where he was forced into it. (III) Where the conviction of concurrent offences is involved, the right to seek recovery of damages may also refer to individual criminal offences in respect of which conditions for recognition of indemnification have been fulfilled.”

359.     The full text of the other articles of this chapter of the ZKP reads as follows:

360.     Article 539.  (I) The right to seek recovery of damages shall be barred by the statute of limitations after a lapse of three years from the finality of the judgement whereby the defendant was acquitted of the charge in the first instance or the charge was rejected, or after a lapse of three years from the finality of the ruling whereby the charge sheet was dismissed or proceedings in the first instance were discontinued.  If the appeal was decided by a higher court, the statute of limitations shall apply after a lapse of three years from the receipt of the decision of that court.  (II) Before filing a claim for damages with the court, the injured person shall address his claim to the Ministry of Justice in order to try and reach agreement about the existence of the loss and the type and extent of compensation.  (III) In the instance referred to in point 2 of the first paragraph of the preceding article, the request may only be processed if the authorized prosecutor fails to institute prosecution at the court of jurisdiction within three months of the receipt of the final ruling.  If the authorized prosecutor starts prosecution at the court of jurisdiction after the expiry of that time limit, proceedings for the recovery of damages shall be suspended until criminal proceedings have been concluded.

361.     Article 540.  (I) If the request for the recovery of damages is not granted or the Ministry of Justice and the injured person does not reach accord within three months of the filing of the request, the injured person may file a claim for damages with the court of jurisdiction.  If accord was reached regarding only a part of the claim, the injured person may sue for the outstanding part.  (II) The statute of limitations from the first paragraph of article 539 of the present Code shall not apply for as long as the procedure from the preceding paragraph is pending.  (III) Claims for the recovery of damages shall be filed against the Republic of Slovenia.

362.     Article 541.  (I) Heirs shall succeed only to the right of the injured person to recover damages.  If the injured person has already filed the claim, the heirs may continue proceeding only within the limits of the injured person's indemnification claim.  (II) After the death of the injured person, his heirs may continue proceedings for the recovery of damages, or may initiate proceedings if the injured person died before the action became statute-barred without waiving the right to claim for damages.

363.     Article 542.  (I) The right to compensation shall also be enjoyed by:  (1) a person who was held on remand and criminal proceedings against him were not instituted, or the charge sheet was dismissed by the final ruling, or proceedings were discontinued, or he was acquitted of the charge by the finally-binding judgement, or the charge was rejected; (2) a person who served a sentence in a correctional institution and on whom, by reason of the renewal of criminal proceedings or a request for the protection of legality, a shorter sentence was pronounced than the one he had already served or on whom a criminal sanction not involving arrest was pronounced, or who was found guilty and then acquitted; (3) a person who, by reason of an error or unlawful act of an agency, was wrongfully arrested or held for some time on remand or in a penal institution; (4) a person who was held on remand longer than the prison term to which he was sentenced.  (II) A person who, without statutory grounds, was arrested under article 157 of the present Code shall be entitled to compensation if remand in custody was not ordered against him and the time he spent under arrest was not counted in the punishment imposed on him for a criminal offence or misdemeanour.  (III) The right to compensation shall not be enjoyed by a person whose arrest was caused by his own reprehensible conduct.  In instances referred to in clauses 1 or 2 of the first paragraph of this article, the right to compensation shall be excluded if circumstances exist as specified in clauses 2 or 3 of the first paragraph of article 538.  (IV) In proceedings for compensation under the first and second paragraphs of this article, the provisions of this chapter shall apply accordingly.

364.     Article 543.  (I) If an example of the unjustifiable conviction or unfounded arrest of a person was shown in the media and the reputation of that person was thereby harmed, the court shall, at the request of that person, announce in a newspaper or other media a report on the decision from which it is evident that the conviction was unjustifiable or the arrest unfounded.  If the case was not announced in the media, the court shall, at the request of that person, send a report to this effect to his employer.  After the death of a convicted person, such right shall be held by his spouse, or the person with whom he lived in domestic partnership, and by his children, parents, brothers and sisters.  (II) The request from the preceding paragraph shall be permissible even if the recovery of damages was not sought thereby.  (III) Notwithstanding the conditions prescribed by article 538 of the present Code, the request from the first paragraph of this article shall also be permissible where, in connection with extraordinary judicial review, the legal qualification of the act was changed, if due to the legal qualification in the previous judgement the reputation of the convicted person was seriously harmed.  (IV) The request referred to in the first, second and third paragraphs of this article shall be submitted within six months (first paragraph, article 539) to the court which adjudicated in the criminal proceedings in the first instance.  The request shall be determined by the panel (sixth paragraph, article 25).  In the process of determining the request, the second and third paragraphs of article 538 and the third paragraph of article 542 of the present Code shall apply accordingly.

365.     Article 544.  The court which adjudicated in the criminal proceedings in the first instance shall, ex officio, render a ruling annulling the entry of the unjustifiable conviction in the criminal records.  The ruling shall be sent to the Ministry of Justice.  Data from the annulled entry must not be communicated to any person.

366.     Article 545.  Persons who were authorized to inspect and copy the files (article 128) relating to the unjustifiable conviction or unfounded arrest of a person may not use data from these files in a manner which would prejudice the rehabilitation of the person against whom criminal proceedings were conducted.  The president of the court shall be bound to warn such a person thereof, and a note to that effect shall be written in the file against the signature of that person.

367.     Article 546.  (I) A person who, by virtue of unjustifiable conviction or unfounded arrest, has lost his employment or the rights under the welfare and social security system shall be entitled to have the time of employment or insurance thus lost counted as if he were employed during the time lost through unjustifiable conviction or unfounded arrest.  The time of unemployment resulting from an unjust conviction or unfounded arrest shall also be counted in his years of service, unless the person is himself responsible for that unemployment.  (II) In any disposition regarding the rights arising from the length of service or of social insurance, the relevant agency shall take into account the length of time recognized pursuant to the preceding paragraph.  (III) Should the agency from the preceding paragraph disregard the length of time recognized under the first paragraph of this article, the injured person may request that the court from the first paragraph of article 540 confirm that he has this period recognized by law.  The claim shall be filed against the agency which refuses to recognize the recognized period, and against the Republic of Slovenia.  (IV)  At the request of the agency at which the right from the second paragraph of this article is exercised, the contribution prescribed for the period recognized under the first paragraph of this article shall be paid out of the budget of the Republic of Slovenia.  (V) The length of social insurance recognized under the first paragraph of this article shall be included in its entirety in the length of service required for retirement.

368.     A special chapter of the Misdemeanours Act entitled “Recovery of Damages, Rehabilitation and Other Rights of Persons Wrongfully Convicted, Wrongfully Sentenced to a Security or Educational Measure, or Wrongfully Arrested” (chapter 17, articles 245 to 251) sets out the right to compensation for damages suffered by wrongfully convicted or detained persons. Among others, the chapter states:  “Anyone sentenced to imprisonment within misdemeanours proceedings, or anyone whose monetary fine was changed into a prison sentence (…), or anyone who was sentenced to a security or educational measure, shall have the right to recovery of the damage suffered as the result of the unjustified punishment or pronounced measure if the legally‑binding misdemeanours decision was modified or annulled and proceedings against them were legally suspended (…)”(article 24/I).  Under article 248, a person is also entitled to the right to the recovery of damages “if he was detained but no misdemeanours proceedings were initiated against him, or if these proceedings were legally suspended; (…) if he was in any way wrongfully arrested as the result of an error or unlawful action by misdemeanours proceedings bodies”.  If the case to which the unjustified punishment or unfounded arrest of a specific person (a sentence or a security measure) refers “is revealed in a public medium and this results in the defamation of this person, the body responsible for misdemeanours proceedings shall, at this person’s request, publish in a newspaper or other public media a notice from which it is clear that the previous ruling or measure was rendered without just cause” (article 249/I).  Such a request is also permitted to be made even if recovery of damages was not demanded.[65]

369.     Article 246 sets out in greater detail the procedure for the recovery of damages suffered as the result of wrongful treatment within misdemeanours proceedings.  A special out-of-court settlement is envisaged where, if the latter fails, regular court proceedings may be pursued.  Under paragraph III of this article, “a lawsuit for recovery of damages (…) shall be lodged against the Republic of Slovenia”.

370.     Article 50/V of the Internal Affairs Act reads:  “If a person is wrongfully detained he shall have the right to seek recovery of damages.  He may demand recovery of damages from the social-political community which incorporates the body whose authorized official detained him.”

371.     It is interesting to stress here that the Slovene Association of Physiotherapists, as a national professional organization of physiotherapists, devoted its most recent meeting (the 20th national meeting on 21 March 1998) to the issue of the rehabilitation of tortured patients.  At the meeting, the president of the association, Ms Gabrijela Vrabič, and two officials of the association, Ms Sonja Hlebš and Ms Gabrijela Gaber, confirmed that in the last five-year period Slovene physiotherapists have not had any cases of torture within the meaning of the Convention against Torture.  This subject was selected for the meeting in the light of the interesting visit by the delegation of the association operating within the specialized Centre for Human Rights and the Rehabilitation of Persons Subjected to Torture, based in Denmark.

372.     At the same meeting, one of the officials, Prof. Martin Janko, as a representative of the Institute of Neurophysiology at Ljubljana University Hospital (a specialist professional medical institution of the highest level in the country which deals with the problem of pain), also confirmed that in the last five-year period this Institute has not encountered patients or cases in Slovenia which would involve any suspicion of violations of the Convention against Torture, nor has it dealt with any patients who suffer from any kind of pain resulting from such violations.

373.     Although the ZKP stipulates that a special national foundation for victims of criminal offences be set up (article 162/I (2)), this foundation has not yet been established.

Article 15

374.     Under the provision of article 18/II of the ZKP, criminal proceedings in Slovenia regularly enforce the so-called exclusion rule regarding extorted and similarly inadmissibly‑obtained statements or other evidence:  “The court may not base its decision on evidence obtained in the violation of human rights and basic freedoms provided by the

Constitution, nor on evidence obtained in violation of the provisions of criminal procedure and which, under the present Code, may not serve as the basis for a court decision, or which were obtained on the basis of such inadmissible evidence.”

375.     This provision introduces a multi-level exclusion rule.  It first (1) generally covers all evidence obtained unconstitutionally, and separately (2), evidence obtained in violation of specific particularly important provisions of the ZKP.

376.     Under the ZKP, violations of the following procedural rules leads explicitly to the exclusion of evidence:  under the provision of article 371/VIII of the ZKP, reliance in the judgement on direct or indirect evidence obtained by a violation of article 18 of the ZKP (exclusion rule), an absolutely major violation of criminal proceedings which the court of appeal is responsible for examining ex officio in procedures of appeal and, if it establishes the existence of this violation, to annul the ruling in the first instance (article 383 of the ZKP).

377.     Under article 204 of the ZKP, if the investigating judge fails to inform an arrested person as stipulated by article 4 of the present Code (any person deprived of liberty shall be advised immediately, in his mother tongue or in a language he understands, of the reasons for his loss of liberty; a person deprived of liberty shall immediately be instructed that he is not bound to make any statements, that he is entitled to the legal assistance of a lawyer of his own choice and that the competent body is bound to inform, upon his request, his immediate family of his being deprived of liberty; the suspect shall have the right to the services of a lawyer from the moment of apprehension), or the information is not entered in the record, the court shall not be allowed to base its decision on the testimony of the arrested person.

378.     Under article 219 of the ZKP, if an investigation has been carried out without a written court order (and therefore in contravention of article 215/I of the ZKP), or without the presence of persons whose presence is obligatory in the investigation (and therefore in contravention of article 216/I and 216/III of the ZKP), or if the investigation has been carried out in contravention of the provisions of the first, third and fourth paragraphs of article 218 of the ZKP,[66] the court shall not be allowed to base its decision on the evidence obtained in this manner.

379.     The above provisions are procedurally elaborated in the Rules on the Exclusion of Evidence from the Record, defined in article 83/I and II of the ZKP,[67] as well as in articles IV, 286/III and 377/V of the ZKP.

380.     A special exclusion rule is also included in the procedural section of the Misdemeanours Act.  The provision of article 114/IV reads:  “The use of force or the threat of force against the accused, or any other similar means that might influence the willingness of the accused to testify or in order to obtain a confession or a statement from him, shall not be permitted; a misdemeanour ruling based on such testimony by the accused shall not be permitted.”

Notes