Text file: 6807.txt
author: andra
downvotes: 1
end consideration date: 2015-07-22
id: '6807'
number comments: 8
number views: 2029
proposal type: Competent authority response
response: "Response from the Ministry of Justice\nAt the outset, we would like to\
  \ stress that the Ministry of Justice cannot give an interpretation of a regulation\
  \ within its competence that would legally bind other state bodies or even the courts.\
  \ The Ministry of Justice therefore provides only non-binding clarifications below.\n\
  The first proposal (on avoidance of main hearings) suggests that it primarily concerns\
  \ the defendant, who has an 'interest' in avoiding main hearings. The Criminal Procedure\
  \ Act (Official Journal of the RS, No 32/12 - UPB, 47/13, 87/14, 8/16 - US Decision,\
  \ 64/16 - US Decision, 65/16 - US Decision and 66/17; hereinafter: the \"CPC\")\
  \ distinguishes between documents to be served personally and other documents. In\
  \ a somewhat simplified way, the first group includes the most important documents\
  \ (e.g. summons to the main hearing; if the accused does not have a defence counsel,\
  \ also the indictment, the judgment, decisions from which the time limit for appeal\
  \ runs from the date of service, etc.; Article 120 of the CCP). Such documents are\
  \ served directly on the accused. If he is not present, the person serving the document\
  \ shall make inquiries as to when and where he might be found and shall leave a\
  \ written message for him to be at home or at work on a certain day at a certain\
  \ time to receive the document. This message should be left, for example, with adult\
  \ family members if the service is made at home, or with the person authorised to\
  \ receive mail at the workplace if the service is made at the workplace. Both are\
  \ obliged to take the letter. If the person serving the document is still unable\
  \ to find the addressee, he or she may serve the document on the adult members of\
  \ the family or on the person authorised to receive mail at the workplace. The CCP\
  \ provides that service may also be made, for example, on a neighbour or a colleague\
  \ who is willing to accept the letter. The same applies to the aforementioned notification\
  \ of where and when the addressee is to be located in order to be served with the\
  \ document).\nThe CCP also provides for a whole range of different measures that\
  \ may be used to ensure the presence of the accused, to eliminate the risk of repetition\
  \ and to ensure the success of the criminal proceedings. These include: summons,\
  \ arrest, promise not to leave the defendant's residence, prohibition to approach\
  \ a certain place or person, reporting to a police station, bail, house arrest and\
  \ detention. In choosing the measure, the court must also take into account the\
  \ principle of proportionality and must, of its own motion, ascertain whether the\
  \ conditions for its application still exist (Article 192 of the CCP). Thus, the\
  \ court may order the arrest of the accused if a detention order has been issued,\
  \ or if the accused fails to appear when duly summoned and does not justify his\
  \ or her absence, or if it has not been possible to duly serve the summons or the\
  \ judgment imposing the custodial sentence on him or her, and it is apparent from\
  \ the circumstances that the accused has evaded service after all other means of\
  \ service have failed (paragraph 194(1) of Article 194(1) of the Code of Criminal\
  \ Procedure, art. 192). In the light of the foregoing, we consider that the motion,\
  \ in so far as it relates to enforced arrest, has already been duly put into effect.\
  \ With regard to notification by ordinary mail or by electronic means (as indicated\
  \ in the proposal), it is necessary to take into account the possible outcome of\
  \ the criminal proceedings. In the event of a conviction, the defendant will suffer\
  \ very serious consequences (e.g. he could be sentenced to several years' imprisonment).\
  \ In the light of the above, it is necessary to ensure, on the one hand, that the\
  \ defendant is in fact able to acquaint himself with the procedural material, which\
  \ is a prerequisite for the preparation of a successful defence and, last but not\
  \ least, his constitutional and conventional right, and, on the other hand, to prevent\
  \ him from unduly avoiding the proceedings themselves. The finality of the judicial\
  \ decision must also ensure that any conviction can withstand any appeals and other\
  \ legal remedies. Service must therefore be effected in a manner that allows for\
  \ subsequent verification. To the extent that a document is served by ordinary mail\
  \ or by e-mail to an \"ordinary\" e-mail address, this cannot be guaranteed. (The\
  \ CCP does allow for electronic service, but by secure electronic means and in secure\
  \ electronic boxes (which can be ensured among \"professional\" participants in\
  \ the criminal proceedings, but of course the accused cannot be forced to open such\
  \ a box).) Accordingly, we consider that the current arrangements as described above\
  \ are adequate in this respect.\nThe Law on the Execution of Penal Sanctions (Official\
  \ Gazette of the Republic of Slovenia, No 110/06 - Official Consolidated Text, 76/08,\
  \ 40/09, 9/11 - ZP-1G, 96/12 - ZPIZ-2, 109/12 and 54/15; hereinafter referred to\
  \ as \"ZIKS-1\") regulates the postponement of the execution of a prison sentence\
  \ in Article 24. Paragraph 1 of the said Article provides that a convicted person\
  \ who is at large may, at his or her request or with the consent of his or her immediate\
  \ family members, foster parent or guardian, or at the request of the competent\
  \ centre, be granted a stay of execution of his or her prison sentence on nine,\
  \ enumerated grounds. These grounds are: (1) if the sentenced person is unable to\
  \ serve the sentence because of hospital treatment, (2) if someone in the sentenced\
  \ person's immediate family has died or is seriously ill and his assistance is urgently\
  \ needed, (3) if the postponement is necessary to enable the sentenced person to\
  \ carry out or complete undeferred field or seasonal work, or work caused by a natural\
  \ or other disaster, and there are no other able-bodied members of his family available\
  \ for the work, and (4) if he is obliged to carry out certain work, which he has\
  \ started and which would cause significant damage if he were not to do so, (5)\
  \ if the sentenced person has to finish school or pass an examination for which\
  \ he has been preparing, (6) if he has to provide for the care and upbringing of\
  \ his children, or in cases where the living conditions of his family may be significantly\
  \ impaired (to be assessed by the competent centre in the area of residence of the\
  \ sentenced person's family), (7) if his spouse or a person is sentenced together\
  \ with him/her, living with the sentenced person in a living partnership which is\
  \ equal in legal consequences to marriage under the law on marriage and family relationships,\
  \ or in a registered same-sex partnership under the law on the registration of same-sex\
  \ partnerships, or other members of a common household, or is already serving a\
  \ sentence, and the maintenance of elderly, sick or under-age family members would\
  \ be endangered if all the sentenced persons were serving a prison sentence at the\
  \ same time, (8) if the convicted person has a child under one year of age, or if\
  \ the convicted person is pregnant and the childbirth is less than five months away,\
  \ or if the convicted person has a child under two years of age and special medical,\
  \ social or other reasons require that the convicted person take care of him or\
  \ her; and (9) if the convicted person needs a suspension in order to complete a\
  \ drug treatment programme in which he or she is enrolled, and the successful completion\
  \ of the programme would be jeopardised by its interruption, if so proposed by the\
  \ competent centre.\nParagraph 2 of the ICCS-1 also limits the duration of the suspension\
  \ of the execution of the prison sentence. In the case of hospital treatment, the\
  \ execution of the sentence may be suspended for as long as the hospital treatment\
  \ lasts. In the cases referred to in points 2, 3, 4 and 6, the sentence may be suspended\
  \ for a maximum of three months, in the cases referred to in points 5 and 7 for\
  \ a maximum of six months, in the cases referred to in point 8 until the child reaches\
  \ the age of one or two years, and in the cases referred to in point 9 for a maximum\
  \ of two years.\nArticle 25 of the CJCS-1 also limits the time within which a convicted\
  \ person may submit an application for suspension of the imposition of a prison\
  \ sentence, by stipulating that it must be submitted within three days of receipt\
  \ of the summons to serve the sentence. However, if the grounds for suspension under\
  \ Article 24(1)(1) to (3)(1) arise at a later date, the sentenced person may also\
  \ lodge an application after that time-limit, but before the date on which he or\
  \ she would have been required to report for sentencing.\nIt is clear from the foregoing\
  \ that the applicant's understanding that wealthier persons may indefinitely apply\
  \ for a suspension of imprisonment is incorrect. Firstly, because the filing of\
  \ applications for suspension of sentences is not conditional on the financial status\
  \ of the convicted person (any convicted person may file an application for suspension\
  \ of sentence, and only those who have one of the list of grounds for suspension\
  \ of sentence listed in the law will be successful), and secondly, because the law\
  \ limits both the duration of suspension of sentence and the time during which an\
  \ application may be filed.\nOn the basis of the above, the Ministry of Justice\
  \ concludes that the proposal is unfounded or that the current arrangements are\
  \ adequate.   \n "
response date: 2018-01-22
response due date: null
sent date: 2015-06-23
title: Avoiding imprisonment and court hearings
upvotes: 34
url: https://predlagam.vladi.si/predlog/6807
