Introduction of new educational measures in Slovenia
At the time of the development and introduction of new educational measures in Slovenia (1996: including reconciliation, work for humanitarian organisations or the local community, and social training), a study criticised the legislative provision in Slovenia under which these types of measures were to be ordered after completion of preliminary proceedings in court.62 The study claims that the purpose of these kinds of measures can be achieved only when they are implemented soon after the offence, and suggests that the pronouncement and implementation of these types of measures takes place in the period before the preliminary proceeding or at the same time as the preliminary proceeding.
3. Institution of Criminal Proceedings
The authorised public prosecutor institutes the preparatory proceedings for all criminal offences, whether acting in the line of duty or based on private prosecution, when the substance of criminal charges and the evidence submitted constitute a reasonable suspicion that an offence is committed. The prosecutor makes this request to the judge shortly after receiving the charges for a criminal offence, in practice very seldom after the period of 10 days.
The merits of a request for preparatory proceedings may be re-examined by a juvenile judge, who may request the Juvenile Panel of a higher court to make a decision, though this rarely happens in practice. The Juvenile Panel may also request preparatory proceedings if this is not done by the public prosecutor and if the injured party requests that the Juvenile Panel decide upon it within eight days.
The public prosecutor is the only authorised prosecutor in the proceedings against a juvenile, even when, as mentioned above, the Juvenile Panel has put forward the request for preparatory proceedings.
Once a request for the institution of the preparatory proceedings is submitted to the court, a copy of the request is forwarded to the guardian authorities, i.e. the centre for social welfare (CSW) which is responsible for collecting background information on the particular juvenile that will subsequently be submitted to the judge. Once all the relevant information and evidence about the offending and the offender has been completed, it is returned to the prosecutor. The prosecutors contacted for this study described co-operation with the social welfare centre in these cases as exceptionally successful.
Completion of the preparatory proceedings
Once the judge, following examination of the circumstances of the case in the preparatory proceeding, submits documentation to the prosecutor, the prosecutor may:
request that the judge expand the proceedings
propose suspension of further proceedings
make a proposal for sentencing of a sanction.
The same applies to a decision against institution of the preparatory proceedings. The law in both entities provides for the possibility that the public prosecutor may request suspension of further proceedings, based on the conclusion from the preparatory proceedings that further proceedings would not serve any purpose. An example of the above, as happens in practice, is a court reprimand as the most appropriate for the severity of the offence, when the offender in question is almost an adult. The juvenile judge or a guardian body may disagree with the prosecutor’s decision to suspend the juvenile proceedings. In this case, a decision by the Juvenile Panel of a higher court may be requested. This very seldom happens in practice.
Once the public prosecutor has made a proposal for a sanction, he or she notes the type of offence according to legislation), the case file is forwarded to a juvenile judge. The public prosecutor can, but does not have to, propose a sanction to the judge, although he does choose whether it is to be an institutional or non-institutional type of measure.
It should be noted that a proposal of sanctions is not binding on the juvenile judge, who may recommend a less severe sanction than the one proposed by the public prosecutor.
Public prosecutors in the situation of non-implementation of institutional measures in practice
In practice, public prosecutors are most frequently specific in terms of types of proposed measures but, in the view of some prosecutors, they are significantly limited by the lack of possibility of implementation of certain institutional and non-institutional measures. In the Republika Srpska, as already stated for the Federation of BiH, public prosecutors sometimes propose a measure that ensures some control of the juvenile by official institutions, namely the CSW, in exchange for non-implementation of custodial measures. This is usually related to cases where the public prosecutor proposes the measure of Intensified Supervision by a Guardian Body/CSW (PNOS),63 rather than a more severe sanction, such as placement in a reformatory or correctional-reformatory home, and the latter isnot being proposed as there are no such institutions in the area. A few of the prosecutors contacted believe that the current lack of reformatory institutions actually encourages recidivism, with more serious criminal offences being committed each time (for example, major thefts and robbery). The same public prosecutors think that the response by the justice system has been too mild for previous offences, and that juvenile offenders continued offending through being unafraid of being punished by placement in correctional-reformatory homes.
Public prosecutors and judges in both entities who were contacted commented on their frustration and sense of feeling powerless due to the fact that, for many years, there has been a lack of institutions designated for the implementation of institutional measures. In their experience, the number of juveniles whose rehabilitation is inadequate to their offences and life circumstances is increasing, leading them to become repeat offenders of serious criminal offences when they reach the age of legal maturity.
The public prosecutors contacted believe that the opening of a correctional institution in the Republika Srpska (along with the one planned in the FBiH) will lead to the disproportionate use of this sanction, and that new criminal legislation will provide for measures for serious criminal offences which will not inevitably be of institutional (i.e. confinement) type, such as a correctional-reformatory home.
Institution: THE PUBLIC PROSECUTOR
Problems and constraints in practice
Public prosecutors are burdened with other criminal cases, so that it is not possible to sufficiently specialize in issues of juvenile offending.
There are currently only a small number of legal measures for more serious criminal offences.
There is a lack of facilities to propose institutional measures for serious criminal offences.
There is a lack of procedural solutions for greater use of educational measures in the FBiH.
There is a lack of alternative solutions for detention.