Constitutional court case law

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Case number:
Up-879/14
ECLI:
ECLI:SI:USRS:2015:Up.879.14
Challenged act:
Supreme Court Judgment No. I Ips 2457/2010, dated 1 October 2014, Higher Court in Ljubljana Judgment No. II Kp 2457/2010, dated 21 March 2014, and Local Court in Ljubljana Judgment No. II K 2457/2010, dated 5 June 2013
Operative provisions:
Supreme Court Judgment No. I Ips 2457/2010, dated 1 October 2014, Higher Court in Ljubljana Judgment No. II Kp 2457/2010, dated 21 March 2014, and Local Court in Ljubljana Judgment No. II K 2457/2010, dated 5 June 2013, are abrogated insofar as they refer to Ivan Janša.
 
The case is remanded to a different judge of the Local Court in Ljubljana for new adjudication.
Abstract:
From the first paragraph of Article 28 of the Constitution, which regulates the principle of legality in criminal law as a human right, there follows the requirement that criminal offences have to be determined by law (lex scripta). In determining criminal offences, the law must not apply empty, undeterminable, or unclear terms (lex certa), allow the application of analogy (lex stricta), or determine its own retroactive effect (lex praevia). These constitutional requirements are also binding on judges when deciding on criminal offence charges in criminal proceedings.
 
Judges must interpret statutory provisions that define criminal offences in a strict manner. By way of interpretation they may not extend the scope of criminal liability as determined by the legislature in terms of the individual elements of a criminal offence.
 
From a constitutional law perspective, it is irrelevant whether the elements of a criminal offence are included in the operative provisions of a judgment or in its reasoning; however, unless all of the elements of a criminal offence are included in the judgment, the perpetrator would have been convicted for an act that is not a criminal offence, which constitutes a violation of the principle of legality in criminal law. Such is also the case when a court interprets an element of a criminal offence too broadly or by analogy so that it also includes in its scope conduct that the legislature did not include, while at the same time it does not include conduct that entails an element of the criminal offence.
 
When interpreting a law with regard to a concrete case, the court has to establish the facts of the case that are relevant from the perspective of each individual statutory element of the criminal offence. With regard to each of the elements of the criminal offence, it has to compare the legally relevant facts of the concrete case that it extracts from the real life event with the statutory definition of the criminal offence that it derives – in a constitutionally consistent manner – from the wording of the statutory provision. The legally relevant facts of the concrete case have to correspond precisely and strictly (lex certa, lex stricta) to the statutory definition of the criminal offence – i.e. to each individual element of the criminal offence. The extraction of the legally relevant facts of the concrete case with regard to the individual statutory elements of the criminal offence entails the concretisation of the elements of the criminal offence.
 
The concretisation of each individual element of the criminal offence at the level of the legally relevant facts of the concrete case constitutes the basis of the review of their correspondence to the statutory definition of the criminal offence. Therefore, a judgment must state the concrete actions of the perpetrator that the court subsumed under the individual elements of the criminal offence at issue. Thereby, the court may not replace the concretisation of one of the statutory elements of the criminal offence with the concretisation of other statutory elements of the criminal offence so that they merge with each other. Such would entail the absence of one of the elements of the criminal offence.
 
When reviewing the constitutionality of an interpretation of substantive criminal law, the Constitutional Court does not engage in establishing the facts and assessing the evidence. It only examines whether the courts interpreted the wording of the law in accordance with the requirements stemming from the first paragraph of Article 28 of the Constitution with regard to the legally relevant facts of the concrete case that they extracted from all of the facts established in the judicial proceedings.
 
The Constitutional Court does not review the constitutionality of the act of indictment, as such is a task of the criminal courts. From the perspective of the first paragraph of Article 28 of the Constitution, the Constitutional Court verifies whether the courts observed the constitutional safeguard determined thereby.
 
A law is not inconsistent with the lex certa requirement if the meaning of the terms it applies can be construed by means of established methods of interpretation.
 
The statutory element of the acceptance of (the promise of a reward) is an objective statutory element [i.e. actus reus] of the criminal offence of accepting a gift for unlawful intervention under the first paragraph of Article 269 of the Criminal Code. As such, it has to be detected in the external world, as for this element it is essential that the will of the perpetrator to accept (the promise of a reward) is expressed. This can only be realised by the perpetrator's own actions, whereby the manner in which (the promise of a reward) is accepted is irrelevant, as it is not an element of the criminal offence.
 
It is in the nature of things that criminal offences of corruption, which entail a serious threat to society, are carried out in secret. Consequently, the possibility of the prosecuting authorities directly detecting such offences is limited. If, in light of such, a court concludes on the basis of other actions of the perpetrator and the particular circumstances of the case at issue that an acceptance (of the promise of a reward) occurred, the requirement of the concretisation of that statutory element of the criminal offence is transferred to those other actions. In order to guarantee that the requirements stemming from the first paragraph of Article 28 of the Constitution are observed, they may only entail such actions of the perpetrator that, in terms of their content and nature and in the circumstances of the case at issue, allow the existence of the statutory element of the criminal offence to be established beyond a reasonable doubt.
 
The position of the courts that allows a conclusion regarding the existence of the element of acceptance (of the promise of a reward) to be drawn without its concretisation, but on the basis of the concretisation of the reward and the perpetrator's intent (with the intent to use his influence and to intervene such that an official act is performed), which are independent elements of the criminal offence, is inconsistent with the principle of legality in criminal law.
 
If the court does not extract the legally relevant facts of the concrete case that entail either the direct detection of the acceptance (of the promise of a reward) or enable, in the context of the circumstances of the case at issue and the nature and content of the perpetrator's actions, that the existence of such acceptance is established beyond a reasonable doubt, the requirements stemming from the first paragraph of Article 28 of the Constitution are not observed. As a result of such an omission, the Constitutional Court cannot assess the substantive constitutionality of the interpretation of the criminal statute from the perspective of the principle of legality in criminal law.
 
In the exercise of the right to impartial proceedings determined by the first paragraph of Article 23 of the Constitution it is not important that only the impartiality of proceedings is in fact ensured, but it must also be outwardly expressed. This concerns the so-called appearance of the impartiality of proceedings. It is thus important that the court creates and maintains the appearance of impartiality throughout the consideration of a concrete case. Otherwise the trust of the public in the impartiality of the courts may be at risk.
 
The fact that the President of the Supreme Court responded to the criticisms of the judiciary in a public speech in which he also criticised the convicted person's statements regarding the appellate court and subsequently, as the president of a panel of the Supreme Court, participated in deciding on the convicted person's request for the protection of legality against a final judgment, casts doubt on the impartiality of the proceedings before the Supreme Court.

 
Thesaurus:
1.5.51.2.10 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In constitutional-complaint proceedings - Annulment/annulment ab initio of a challenged act and remanding to new adjudication.
3.14 - General Principles - Nullum crimen, nulla poena sine lege.
1.4.10.6 - Constitutional Justice - Procedure - Interlocutory proceedings - Challenging of a judge.
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions.
5.3.13.14 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Impartiality.
Legal basis:
Art. 28.1, Constitution [CRS];
Art. 59.1, Constitutional Court Act [CCA]
Cases joined:
⇒¤
Full text:
Up-879/14-39
Up-883/14-40 
Up-889/14-37
23 April 2015
 
 
On the basis of the first paragraph of Article 30 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, Nos. 86/07, 54/10, and 56/11), the Constitutional Court adopted the following
 
PRESS RELEASE
 
By Decisions Nos. Up-879/14, Up-883/14, and Up-889/14, all dated 20 April 2015, the Constitutional Court decided that Supreme Court Judgment No. I Ips 2457/2010, dated 1 October 2014, Higher Court in Ljubljana Judgment No. II Kp 2457/2010, dated 21 March 2014, and Local Court in Ljubljana Judgment No. II K 2457/2010, dated 5 June 2013, are abrogated and that the cases be remanded to a different judge of the Local Court in Ljubljana for new adjudication. The Constitutional Court decided the cases in a composition consisting of the President and seven Judges. Judge Jan Zobec was disqualified from deciding in the cases. The Decisions were adopted unanimously, and concurring opinions were submitted by Judges Dr. Jadranka Sovdat, who was joined by Mag. Miroslav Mozetič, and Dr. Mitja Deisinger.
 
In all three Decisions the Constitutional Court conducted a review from the perspective of the first paragraph of Article 28 of the Constitution (the principle of legality in criminal law), which determines that no one may be punished for an act which had not been declared a criminal offence under law or for which a penalty had not been prescribed at the time the act was committed. This constitutional provision is primarily directed at the legislature: when defining a criminal offence in a statute, the legislature must draw a completely clear distinction between conduct that is criminal and conduct that falls outside the scope of criminal liability. However, the special safeguards stemming from the principle of legality in criminal law also have to be observed by the courts when adjudicating in concrete criminal proceedings. In the cases at issue, the Constitutional Court for the first time developed and applied constitutional law positions regarding these safeguards.
 
The principle of constitutionality in criminal law, which also constitutes a human right, concerns substantive criminal law and inter alia requires that when describing a criminal offence the court must describe all of the elements of the criminal offence in a concrete manner. This principle is violated if any of the elements of the criminal offence are missing in the description of the criminal offence or if the court clarifies an individual element in such a manner that it extends the scope of criminal liability beyond that which the legislature defined by law. The court must not omit the concretisation of any of the elements of the criminal offence such that it does not clearly follow from the judgment which of the established facts concretise an individual statutory element of the criminal offence. If it omits such concretisation, it violates the principle of legality in criminal law. In addition, as a consequence of such an omission, the Constitutional Court cannot verify whether in the interpretation of the statutory elements of the criminal offence the requirements stemming from the first paragraph of Article 28 of the Constitution were observed.
 
When reviewing if the courts acted in accordance with the constitutional requirements, the Constitutional Court does not examine whether the courts correctly established the decisive facts regarding the criminal offence or if those facts were proven. The Constitutional Court is bound by the state of the facts as established by the regular courts.
 
It is also important to stress that the principle of legality in criminal law only refers to court judgments, and not to acts of indictment. The control of acts of indictment lies in the competence of the regular courts and therefore the Constitutional Court did not address such. From the perspective of the relevant constitutional provision, it is moreover irrelevant whether the description of the criminal offence is included in its entirety in the operative provisions of the judgment or whether individual decisive facts are concretised in its reasoning. What is crucial is that the criminal offence is described in the judgment in a concrete manner.  
 
***
 
In the cases at issue, the complainants Ivan Janez Janša and Anton Krkovič were convicted of the criminal offence under the first paragraph of Article 269 of the Criminal Code (accepting a gift for unlawful intervention), and the complainant Ivan Črnkovič of the criminal offence under the first paragraph of Article 269a of the Criminal Code (giving a gift for unlawful intervention). The essence of the complainants' allegations as stated in the constitutional complaints was that the conduct by which they allegedly committed the criminal offences was not concretised in the description of the criminal offences in the judgment. As regards the first two complainants, such concerned the question of whether the acceptance (of the promise of a reward) was concretised in the judgment, while as regards the third complainant, such concerned the question of whether the promise (of a reward) was concretised.
 
In the Decisions, the Constitutional Court emphasised that the acceptance (of the promise of a reward) and the promise (of a reward) constitute independent elements of the criminal offences and that it is not admissible to automatically infer their existence from the existence of the other elements of the criminal offences at issue. They constitute objective elements of the criminal offence that entail acts of commission and can only be concretised by the perpetrator's conduct that has to be detectable in the external world. The method of communication, i.e. the manner of accepting or promising, does not constitute a statutory element of the criminal offence, therefore the manner in which the reward was "promised" or in which the promise of a reward was "accepted" is irrelevant. Nevertheless, in the description of the criminal offence the court must define the perpetrator's conduct that was expressed in the external world and that entailed the realisation of the acceptance of the promise of a reward or the promise of a reward. The requirement of concretisation requires that courts define the perpetrator's conduct that in the context of the circumstances of a given case allows the credible conclusion that the perpetrator promised a reward or accepted the promise of a reward. If the conduct that entails the direct realisation of the acceptance of the promise of a reward or the promise of a reward was not detected, the perpetrator's conduct that, in accordance with logic and experience and in the circumstances of the given case, can substantiate that the will to promise a reward or to accept such a promise was expressed has to be concretised in the judgment.
 
The Constitutional Court found that already the court of first instance failed to extract from all of the established facts of the relevant past event – with regard to which, the Constitutional Court may not consider whether those facts were accurately established or proven – the facts regarding the complainants' conduct that would have enabled that the existence of the statutory elements of "acceptance" of the promise of a reward or "promising" a reward would have been established beyond a reasonable doubt. As the court did not act in accordance with the requirements stemming from the principle of legality in criminal law and those violations were not remedied by the Higher Court or the Supreme Court, the Constitutional Court abrogated all of the judgments due to a violation of the first paragraph of Article 28 of the Constitution.
 
In the case of the complainant Ivan Janez Janša, the Constitutional Court also established a violation of the right to impartial proceedings in accordance with the first paragraph of Article 23 of the Constitution. The President of the Supreme Court, who responded to criticisms of the judiciary in a public speech and therein also criticised the complainant's conduct, namely participated in the proceedings before the Supreme Court. The Constitutional Court emphasised that there is no dispute that the President of the Supreme Court, as the highest representative of the judicial branch of power and of all judges, must have the possibility to respond when he deems that the judiciary has to be protected against attacks. However, if in doing so he critically responds to the statements of a concrete convicted person, this may cast doubt on his impartiality in subsequent proceedings if he participates in deciding on the convicted person's legal remedy against a final judgment. This does not concern the question of the potential subjective impartiality of the President of the Supreme Court, but the question of maintaining the appearance of the impartiality of the court in order to strengthen the public's trust in the impartiality of proceedings in individual cases. Even though the mentioned circumstances cast doubt on the appearance of the impartiality of the adjudication of the Supreme Court in which the President of the Supreme Court participated, the plenary session of the Supreme Court did not decide to disqualify him [from adjudication].
 
 
 
 
Mag. Miroslav Mozetič
President
 
 
 
Up-879/14
20 April 2015
 
 
 
 
DECISION
 
At a session held on 20 April 2015 in proceedings to decide on the constitutional complaint of Ivan Janez Janša, Velenje, represented by the law firm Odvetniška družba Matoz, o. p., d. o. o., Koper, the Constitutional Court
 
 
decided as follows:
 
1. Supreme Court Judgment No. I Ips 2457/2010, dated 1 October 2014, Ljubljana Higher Court Judgment No. II Kp 2457/2010, dated 21 March 2014, and Ljubljana Local Court Judgment No. II K 2457/2010, dated 5 June 2013, are abrogated insofar as they refer to Ivan Janša.
 
2. The case is remanded to a different judge of the Ljubljana Local Court for new adjudication.
 
 
REASONING
 
A
 
1. The Ljubljana Local Court found the complainant guilty of the commission of the criminal offence of accepting a gift for unlawful intervention under the first paragraph of Article 269 of the Criminal Code (Official Gazette RS, No. 95/04 – official consolidated text – hereinafter referred to as the CC) in conjunction with Article 25 of the CC. It sentenced him to two years in prison and imposed an accessory penalty of a fine in the amount of EUR 37,000.00, and required him to pay the costs of the criminal proceedings and the court fee. The Higher Court dismissed the appeal of the complainant's defence counsels. The complainant's defence counsels filed a request for the protection of legality against the final judgment that was dismissed by the Supreme Court.
 
2. The complainant alleges violations of the rights determined by Article 22, the first paragraph of Article 23, Article 27, the first paragraph of Article 28, and Article 29 of the Constitution, as well as Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR).
 
3. The complainant alleges a violation of the right to independent and impartial proceedings determined by the first paragraph of Article 23 of the Constitution due to the fact that his requests to disqualify Local Court Judge Barbara Klajnšek and Supreme Court Judges Branko Masleša and Maja Tratnik [from adjudication] were not granted. He emphasises that in this highly sensitive and politically charged case every reasonable doubt should have been excluded as to whether in the given circumstances the courts adjudicated impartially and the judges should have exercised even greater care and protected the aspect of impartial proceedings, which requires the courts to ensure the external appearance of impartial adjudication (i.e. the objective aspect of the right determined by the first paragraph of Article 23 of the Constitution). The complainant particularly criticises the conduct of Supreme Court Judge Branko Masleša. He claims that the latter raised doubts about his impartiality with his speech at the Days of the Slovene Judiciary on 6 June 2014, and therefore he should have been disqualified [from adjudication]. The complainant further alleges a violation of Article 23 of the Constitution due to the fact that, after the time at which the complainant's request for legal protection was to be considered became known, President Branko Masleša adopted the decision that he would be presiding over all sessions of the criminal law panel until the end of 2014, namely also in the complainant's case. By such conduct, he allegedly selected the case in which he was to decide, even though the case was already being considered, and therefore he was acquainted with its subject matter as well as the parties to the proceedings, and consequently also the complainant's right to a dully appointed judge was allegedly violated. The complainant alleges that with regard to Supreme Court Judge Branko Masleša there existed not only objective but also subjective reasons that cast doubt on his impartiality. From the perspective of the possible influence of the court, objective circumstances could have allegedly created the appearance that not every reasonable doubt regarding the impartiality of the court's adjudication was excluded. In the complainant's assessment, such circumstances also existed with regard to Supreme Court Judge Maja Tratnik.
 
4. The complainant further alleges a violation of the principle of legality stemming from the first paragraph of Article 28 of the Constitution from several perspectives. He initially states that the abstract definition of the criminal offence under the first paragraph of Article 269 of the CC is contrary to the requirement of the certainty of laws (lex certa) and therefore it opens the door for violations of the rights of individuals who trust that their rights, legal interests, and obligations will not be decided on in an arbitrary manner. The complainant further alleges that the statutory elements of the criminal offence of accepting a gift for unlawful intervention under the first paragraph of Article 269 of the CC do not follow from its description, and the described conduct also did not result in an unlawful state of the facts as the required unlawful consequence. The abstract description of the alleged criminal offence in the operative provisions of the first instance judgment is allegedly already incomprehensible and internally contradictory, and the statutory elements of the criminal offence are allegedly not concretised and described in the concrete part of its description. In the complainant's opinion, it is not stated how and in what manner he allegedly fulfilled the statutory element of "acceptance of the promise", but the statutory text from the abstract part of the description is simply reiterated in its concrete part and thus an essential element of the criminal offence is missing. The description of the act as a past event allegedly also does not contain the decisive facts that would concretise the alleged criminal offence. Thus, allegedly, neither the time nor the place of the commission of the criminal offence were stated. Allegedly, even if all the statements regarding facts alleged in the act of indictment were true, a conviction could not follow from such facts, and therefore the court was even barred from initiating criminal proceedings against the complainant. As criminal proceedings have nevertheless been initiated, the complainant believes that due to the inability to concretise the elements of the criminal offence, a judgment of acquittal should have been adopted. The court was allegedly not even allowed to establish the conduct that entailed the commission of the criminal offence, on the basis of either direct or circumstantial evidence, as the prosecutor failed to include such in the act of indictment. According to the complainant's allegations, in the case at issue the courts even applied circumstantial evidence to establish the existence of facts that the prosecutor did not even invoke, but only such facts allegedly allowed for the conclusion that the promise had been accepted. The complainant emphasises that the official act that the unlawful exertion of influence was intended to affect is not clarified and described in the concrete part of the description of the criminal offence, and it further does not identify the public officials at whom the influence was to be directed. He claims that he committed none of the alleged acts and that it is absurd if a person is convicted not because he or she accepted the promise of [the payment of] a commission, but because he or she monitored the preparations for conducting a procedure, supervised such procedure, and was informed of who would be proposed as the local agent. He stresses that the Finnish court acquitted the Finnish citizens identified in the operative provisions of the judgment of the charge that they had committed the criminal offence of active bribery. In the complainant's opinion, therefore, considering the connection between a promise and its acceptance, the failure to prove that a promise had been made simultaneously entails the failure to prove the acceptance of the promise as well.
 
5. The complainant further claims that the criminal proceedings against him were unfair and that his right to a defence determined by the first indent of Article 29 in conjunction with Articles 22 and 23 of the Constitution and Article 6 of the ECHR was violated. He states that the factual and legal aspects of the charge that would have enabled him [to prepare] an effective defence do not follow from the description of the criminal offence and as a result the adopted judgment surprised him. He is of the opinion that, given the unclear allegations, he could only deny [that he had committed] the criminal offence, as it is impossible to defend oneself against an allegation that one has committed a criminal offence at an unknown place, at an unknown time, and through an unknown method of communication. The lack of clarity of the description of the criminal offence is allegedly further reinforced by the Supreme Court's position that the statutory element of "acceptance of the promise" was concretised in the form of the payment of a commission, as nothing of that kind had been claimed by the prosecutor and it also did not follow from the final judgment. The mere assertion that the complainant had accepted the promise of the payment of a commission without a description of other clear and concrete circumstances of the commission of the criminal offence allegedly did not enable him [to prepare] an effective defence. In addition, the courts allegedly failed to clarify some of the essential circumstances contained in the concrete description of the criminal offence, e.g. what the basis was for the finding that the complainant had in fact been informed of the promise of payment that had been made, that he had accepted such and agreed thereto, and that he had accepted such with the intent to exploit his influence and intervene in the performance of an official act, although not even the amount of the promised commission was known. In the complainant's opinion, such reasoning does not even satisfy the minimum requirements regarding the duty to state reasons and therefore it also entails a violation of Article 22 of the Constitution.
 
6. The complainant also alleges a violation of Article 22 of the Constitution due to the arbitrary and manifestly erroneous definition of complicity. He claims that the allegation of complicity is only stated in the abstract description of the criminal offence, but it allegedly does not follow from the concrete part of the description or the reasoning of the judgment. The complainant draws attention to the otherwise established position of the Supreme Court that courts violate the criminal statute if an allegation of complicity is only included in the abstract part of the description [of the criminal offence in the judgment] but is not concretised in the concrete description. In addition, with regard to the nature of the alleged criminal offence and the manner in which the complainant allegedly committed it, complicity in the criminal offence under adjudication is allegedly already conceptually excluded. The acceptance of the promise as such is allegedly an intimate decision and an expression of the perpetrator's will, which allegedly does not allow for complicity. Allegedly, case law also deems that only a person who acted in the course of the commission of a criminal offence can be deemed an accomplice, and complicity can be substantiated merely on the basis of a decisive contribution to the commission of a criminal offence only by way of an exception, whereby such an exception has to be interpreted strictly.
 
7. By adopting a circumstantial judgment the courts allegedly violated the presumption of innocence determined by Article 27 of the Constitution and consequently the right to the equal protection of rights determined by Article 22 of the Constitution. The complainant states that in his case the court did not apply circumstantial evidence as control evidence to confirm the established facts, but it applied circumstantial evidence as fact, whereby the circumstantial evidence did not even follow from his conduct but from the conduct of others. The court allegedly inferred the existence and truthfulness of one circumstantial piece of evidence from another piece of circumstantial evidence. The conclusion regarding a decisive fact was allegedly reached by such fabrication of circumstantial evidence. The complainant believes that instances of drawing conclusions merely on the basis of circumstantial evidence always lead to a subjective and therefore arbitrary interpretation of the truthfulness of an as yet unknown fact and consequently the presumption of innocence and the in dubio pro reo principle derived therefrom are at risk. In light of all of the above, [the adoption of] a circumstantial judgment was allegedly not admissible in the complainant's case. The complainant emphasises that the same circumstantial evidence also allows for the opposite conclusion to be drawn, namely that the criminal offence had not been committed, which is allegedly proven by the assessment of the evidence by the Finnish court in its judgment of acquittal. According to the complainant's assertions, the confirmation of the challenged judgments would entail that in criminal proceedings anyone could be convicted on the basis of the slightest circumstantial evidence and consequently the principle of innocence would be transformed into a presumption of guilt.
 
8. The Supreme Court, which upheld the Higher Court and the Local Court Judgments and thereby confirmed the positions adopted by the lower courts, first presented its position regarding the allegations of the complainant and the other two persons convicted in the same criminal proceedings[1] regarding the violations of Article 28 of the Constitution on a general level. After highlighting the protected object as regards the criminal offences of corruption and the incrimination of preparatory acts relating thereto, which it believes to be the case with regard to the acceptance of a promise, it adopted the position that such criminal offence is completed by the mere acceptance of the promise of a reward. Relying on grammatical interpretation, it held that the acceptance of a promise is not an open-textured legal term, but it entails concrete conduct by which someone accepts something that is offered or given by another. In the case at issue, such was allegedly the promise of a reward (i.e. a benefit). In the opinion of the Supreme Court, the acceptance of a promise is thus not an indefinite legal term, but a clear normative statutory element, the content of which is known and unambiguously defined. At a general level, the Supreme Court adopted the position that the subjective and objective limits of a trial have to be determined by the procedural act of indictment, and the defendants have to be given an opportunity to acquaint themselves with the charge as well as the facts and evidence that it is based on in order to enable them [to prepare] a defence. Relying on established case law, it developed the premise that, from the perspective of their statutorily determined elements, the act of indictment and the judgment must be regarded in their entirety. If the law defines an individual element of a criminal offence with sufficient precision, the courts allegedly should not reiterate such in the description of the relevant facts of the concrete case or describe it in different words, since, with regard to the clarity and comprehensibility of the operative provisions [of the judgment], such would be superfluous. In accordance with such, in individual cases legal terms from the statutory text could allegedly assume the role of facts, as the concretisation of the statutory element would not be reasonable or in some instances it would not even be possible at all. The description of a criminal offence must contain all the decisive facts that concretise the offence, however, in the opinion of the Supreme Court, the principle of legality is not breached if the description of a criminal offence contained in the operative provisions of a judgment is construed in connection with the judgment's reasoning. From such, the Supreme Court inferred the position that the principle of legality is not violated if an element of the criminal offence is not precisely defined in the operative provisions [of the judgment], but is sufficiently substantiated in the reasoning. The Supreme Court summarised the outlined position by concluding that the description of the criminal offence in the operative provisions [of the judgment] and the reasoning constitute a whole, that they supplement each other, and that in instances when the statutory element of a criminal offence is sufficiently defined and is not open-textured the same terms can be applied to define the statutory element also in the concrete description of the facts of a given case and that that element can subsequently be considered to be a fact.[2]
 
9. The Supreme Court then applied the above-described general position in the assessment of the statements of the individual convicted persons. With regard to the complainant Janša, it emphasised that the benefit (i.e. the reward) was precisely described by the promise of the payment of a commission on the sale in accordance with the contract and that it was sufficiently concretised; the percentage of Wolf's commission was defined as a special bonus in which the agreed commission was taken into account and the amount from which the commission was to be calculated was defined precisely. In the assessment of the Supreme Court, the acceptance of the promise is described as the payment of the commission (which the convicted party Janša accepted in the name of the SDS political party); that description as such was allegedly sufficiently defined, concrete, and clear, as the promise of what had been accepted was allegedly clear. After stating its position that the promise of a reward was accepted in the time period between 10 August and 22 August 2005, the Supreme Court concretely described that on 22 August 2005, in accordance with Janša's instructions, Zagožen requested a prepayment of 30% of the promised commission and a contract that would include the prepayment (whereby the acceptance of the promise of a reward was manifested in the external world); the Supreme Court thus linked the description of the promise of the reward with the acceptance of the promise and with the request for payment in the sense of the realisation of the promise of the reward. The Supreme Court agreed with the position of the Higher Court that the omission of a description of the method of communication does not entail that not all of the statutory elements of the criminal offence were sufficiently described, as the method of communication does not constitute a statutory element of the alleged criminal offence. It emphasised that the method of communication can be outwardly expressed in such a manner that it leaves detectable clues in the external world, however it can also entail covert conduct that is manifested in the external world, but the circumstances of such communication are only known to the persons involved. Therefore, in accordance with the position of the Supreme Court, the manner in which a perpetrator accepted a promise does not necessarily have to be established and concretised, as such concerns dealings that are concealed and are not carried out openly and in the presence of witnesses.[3] In the assessment of the Supreme Court, "the acceptance of the promise of the payment of a reward is concretised by the description of the commission on the sale according to the contract and the percentage as well as the statement that the commission was to be calculated on the basis of the amount of EUR 161,900,000.00"; "the commission in the sense of the promised reward is thus concretised with sufficient precision and the statutory element of acceptance of the promise is also concretised in such manner – i.e. he accepted the promise of the payment of a commission."[4]
 
10. In response to the complainant's statements that the description of the offence also has to include a description of the recipient's state of awareness and his or her will to accept the promise and agree to it which is manifested in a manner that is externally perceptible, the Supreme Court replied that such concern statements that do not belong in the description of the offence, but the court also clarified those elements of the criminal offence in the reasoning of the judgment, while as a general rule the subjective element [i.e. the mens rea] of the offence is not described in the operative provisions of the judgment.[5] With regard to the statement of the time of the commission of the criminal offence, the Supreme Court clarified that the time of the commission theerof was sufficiently concretised as also the dates of other key events were stated and that the time of the commission of the criminal offence is not a legally relevant circumstance that would refer to the statutory elements of the criminal offence, but it can be important for other reasons that were not invoked by the defence (e.g. statutes of limitation). With regard to the place of the commission of the criminal offence, the Supreme Court held that the complainant was precluded from invoking this aspect because he did not raise this issue with regard to the jurisdiction of Slovene courts in his appeal and therefore in its assessment the legal remedies have not been substantively exhausted with regard to this allegation.[6] In response to the complainant's allegations with regard to the inclusion in the description of the offence of the public officials whom the complainant was supposed to influence in the performance of an official act in connection with Patria, the Supreme Court replied that the statutory element of the official act is described as a confidential public tender procedure, i.e. an act within the competence of a state authority that is substantiated by statutory provisions and thus also correctly described. The Supreme Court held that the defence interpreted the content and meaning of the relevant provisions erroneously and that the description of the criminal offence is not deficient or incomprehensible and if all the statements regarding the facts in the act of indictment were true, a conviction would follow from the alleged facts; it agreed with the complainant's statement that the choice of a local industrial partner does not constitute an official act, but, in the opinion of the Supreme Court, such was not even alleged in the description of the offence.[7]
 
11. In response to the defence's allegation that it is unclear what the statement in the operative provisions "according to the instructions of Ivan Janša" entails, as the abstract part of the description of the offence does not allege that the convicted party Janša committed the offence by requesting a reward, the Supreme Court replied that the description of the offence to which the defence counsels' cited statements are linked states that, in accordance with Janša's instructions, Zagožen required a prepayment of 30% of the promised commission from Niittynen through Wolf and Riedl (22 August 2005), which entails a description of the realisation of the previously accepted promise of a reward; in the opinion of the Supreme Court, that allegation does not refer only to Zagožen, but that part of the description precisely describes Zagožen's conduct in accordance with the instructions of the convicted party Janša and therefore, also with regard to such, the operative provisions of the judgment are not contradictory or incomprehensible. In the assessment of the Supreme Court, given the precise description of the conduct of the "persons offering the reward" as well as the sufficiently concretised "acceptance of the promise of a reward", it cannot be claimed that also the circumstances of the offer that was made were completely unclear.[8]
 
12. With regard to the alleged violation of the right to impartial proceedings determined by the first paragraph of Article 23 of the Constitution due to the fact that Supreme Court Judge Branko Masleša was not disqualified from adjudication, the Supreme Court adopted positions in two orders of the plenary session of the Supreme Court. By the Order of 27 August 2014, it dismissed the request for his disqualification as it deemed that there existed no reasons to indicate the subjective or objective partiality of Branko Masleša, whereby it also assessed the allegations from the perspective of his potential participation in the panel that was to decide on the extraordinary legal remedy. It held that in his speech President Branko Masleša did not inadmissibly prejudge this criminal case as he emphasised that he did not dare to engage in an assessment of the correctness and legality of the final judgment, and he also firmly rejected the allegation regarding his personal prejudices and convictions. As in the opinion of the Supreme Court there existed no evidence to the contrary, it did not doubt the impartiality of President Branko Masleša. Allegedly, no negative or hate speech against the complainant Janša followed from the speech of 6 June 2014; on the contrary, Branko Masleša, as the president of the state's highest court, simply responded to the conduct (i.e. the placement of the signs of a former military court next to the sign of the Ljubljana Higher Court) of the political party that is led by the convicted person at issue and in particular to the message that such conduct conveys. In the assessment of the plenary session of the Supreme Court, the decisive circumstance was that Branko Masleša did not act in his capacity as a judge, but responded to the pressures exerted on the judges and judiciary in his capacity as the President of the Supreme Court, namely in the function that pertains to the president of the highest court in the state within the framework of the judicial administration and which cannot be equated with the function of a judge. In the opinion of the plenary session of the Supreme Court, the speech at issue was a justified and, with regard to his function, appropriate response to the repeated attacks on the Slovene judiciary, which had been increasing progressively, in particular because they originated from politicians. With regard to the above and by reference to the case law of the European Court of Human Rights (hereinafter referred to as the ECtHR), the plenary session of the Supreme Court held that the fears of the convicted party Janša regarding the partiality of President Branko Masleša were not objectively justified.
 
13. In the Order of the plenary session of the Supreme Court of 29 September 2014, by which the Supreme Court Judges also dismissed the complainant's second request for the disqualification of the president of the panel, i.e. Branko Masleša, the Supreme Court did not consider the question of whether his speech of 6 June 2014 may have influenced his impartiality; it did, however, assess if Branko Masleša's decision to preside over all sessions of the criminal law panel until the end of 2014, which also included the case at issue, affected his impartiality. It held that in light of all the circumstances the doubt regarding the impartiality of the president of the panel, i.e. Branko Masleša, was not justified, as his decision was consistent with the annual work schedule and he communicated this on 4 September 2014, i.e. before the determination of the agenda of the session in the complainant's case on 16 September 2014. The Supreme Court adopted the interpretation that such a decision was necessary from the perspective of the functioning of the criminal law department.
 
14. By Order No. Up-879/14, dated 11 December 2014, the Constitutional Court accepted the constitutional complaint for consideration and suspended the implementation of the challenged judgments until the final decision insofar as they refer to the complainant. In accordance with the first paragraph of Article 56 of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text, and 109/12 – hereinafter referred to as the CCA), it informed the Supreme Court of the acceptance of the constitutional complaint.
 
 
B – I
 
15. The complainant, inter alia, asserts that the act of indictment and the challenged judgment do not contain a concrete description of the conduct that constituted the commission of the offence and that would allow the conclusion that the complainant accepted the promise of a reward, but the operative provisions are satisfied with merely quoting the abstract definition of the criminal offence. The essence of the allegations thus lies in the question of the concretisation of the statutory element "acceptance of the promise of a reward" in accordance with the first paragraph of Article 269 of the CC. The Constitutional Court assessed those statements of the complainant from the perspective of the principle of legality in criminal law that is guaranteed by the first paragraph of Article 28 of the Constitution.
 
16. In accordance with the first paragraph of Article 28 of the Constitution, no one may be punished for an act that had not been declared a criminal offence under law or for which a penalty had not been prescribed at the time the act was committed. By this provision, the Constitution regulates the principle of legality in criminal law, which has also been recognised as a general principle of international law (lex certa) by the international community. The Constitution defines it as a substantive law[9] safeguard in criminal proceedings – as a human right whose observance is intended to prevent the state from applying criminal law repression against individuals in an arbitrary manner. As the Constitutional Court already held in Decision No. U-I-335/02, dated 24 March 2005 (Official Gazette RS, No. 37/05, and OdlUS XIV, 16), this provision determines a number of conditions, namely:
 
  • the prohibition on determining criminal offences and penalties by implementing acts inferior to laws or by customary law (nullum crimen, nulla poena sine lege scripta);
  • the prohibition on defining criminal offences and penalties in empty, undeterminable, or unclear terms (nullum crimen, nulla poena sine lege certa);
  • the prohibition on applying [interpretation by] analogy when establishing the existence of criminal offences and sentencing (nullum crimen, nulla poena sine lege stricta);
  • the prohibition on the retroactive effect of regulations that determine criminal offences and prescribe penalties for such (nullum crimen, nulla poena sine lege praevia).
 
17. The above-stated prohibitions give rise to constitutional counter-obligations that are firstly directed at the legislature. In order to protect persons, society as a whole and its values, the legislature may only determine by law ("declared under law" – lex scripta) which conduct of individuals is inherently wrong (mala in se) or unacceptable to such a degree that it has to be prohibited (mala prohibita) and sanctioned under criminal law. The prescribed penalties are severe, as on such basis it is possible to deprive individuals of their liberty (the second paragraph of Article 19 of the Constitution). The requirement of [incrimination by] law simultaneously entails that only the legislative power may determine what is criminal and it may do so only by means of a special act that has a special position within the legal system (i.e. a law) and that the Parliament adopts in a special, ex ante regulated procedure (the legislative procedure, Article 89 of the Constitution). When defining a criminal offence, the legislature must act with such a degree of certainty ("declared under law") that it is possible to completely clearly distinguish between conduct (actions and omissions) that is criminal and conduct that falls outside the scope of criminal liability. It draws this distinction by defining the elements of individual criminal offences with sufficient certainty. The requirement of the certainty of criminal statutes (lex certa) is a special constitutional requirement in comparison to the principle of precision and clarity, as one of the principles of a state governed by the rule of law enshrined in Article 2 of the Constitution, which applies to all regulations. The legislature may nevertheless apply indefinite[10] and open-textured[11] legal terms when defining criminal offences if the content of the prohibited conduct can be precisely construed by means of established methods of interpretation. However, it may not apply empty, undeterminable, or unclear[12] terms. The principle of certainty, which clearly distinguishes between criminal and non-criminal conduct, is also directly connected with the requirement of the prohibition of analogia legis and analogia iuris (lex stricta)[13] already at the the level of the legislature. The substantive constitutional safeguard stemming from the first paragraph of Article 28 of the Constitution is directed at individuals who have to know in advance what is incriminated as only such enables them to adjust their conduct. They must be able to predict[14] what kind of consequences their conscious conduct may produce, they have to know where the border lies in terms of which the legislature outlined the scope of criminal liability and outside of which there lies the area of their general right to act freely (Article 35 of the Constitution) without being subject to criminal liability. Hence the logical prohibition of the retroactive determination of criminal offences (lex praevia).
 
18. What the Constitution prohibits the legislature from doing, on one hand, and what, on the other, it requires of it in order to ensure that this human right is taken into account when defining criminal offences must equally be applied to the interpreter of the law. The latter must not interpret a statutory provision that is as such not inconsistent with the Constitution in such a way so as to assign to it a meaning that would entail a violation of a human right. In criminal proceedings courts are required to interpret substantive criminal law in accordance with the Constitution, just as the courts are required to interpret statutes in such a manner in general.[15] Whether the courts have interpreted the law in accordance with the Constitution – to be precise, in accordance with human rights and fundamental freedoms – is the sole criterion of constitutional judicial control that the Constitutional Court exercises over adjudication. Such also defines the constitutional law relationship between the Constitutional Court and the (regular) courts, the highest of which is, in accordance with the first paragraph of Article 127 of the Constitution, the Supreme Court. Consequently, the Constitutional Court has constantly repeated that in proceedings regarding constitutional complaints it does not review if the courts correctly applied substantive law (and procedural law, or if they have correctly established the facts), however, it does review if they have violated a human right or fundamental freedom with their interpretation of the law. In principle, this must also apply with regard to a review of whether the courts interpreted the law in accordance with the right stemming from the first paragraph of Article 28 of the Constitution. The conditions stemming from the mentioned substantive constitutional safeguard thus constitute the starting point for defining the constitutional requirements that the courts have to observe when they interpret provisions of criminal laws.
 
19. The substantive constitutional safeguard of the principle of legality in criminal law refers to the judgment and not the act of indictment.[16] Such follows already from the wording of the first paragraph of Article 28 of the Constitution, which declares that no one "may be punished." Only a court can pronounce a penalty (including the deprivation of liberty) for a criminal offence when it establishes that an individual committed such an offence and that he or she is also guilty, which also follows from the first paragraph of Article 23 of the Constitution. Whether the act of indictment presented by the state prosecutor acting as the party to the criminal proceedings representing the state is substantiated may only be decided by an independent court by a judgment issued in fair judicial proceedings, in the framework of which respect for all of the defendant's rights has been guaranteed (the first paragraph of Article 135 of the Constitution). A judgment by which an individual is punished for a criminal offence is thus an act that, viewed from the perspective of the review of the Constitutional Court, has to respect all constitutional safeguards, including the safeguard stemming from the first paragraph of Article 28 of the Constitution. In constitutional complaint proceedings the Constitutional Court reviews if [the judgment at issue] observed such, but it does not engage in a review of the act of indictment, as the review thereof is a matter for the criminal court.
 
20. As in accordance with the lex scripta requirement criminal offences may be determined exclusively by the legislature by law, this constitutional requirement importantly supplements the general constitutional law relationship between the legislative power, which adopts the laws, and the judicial power, which interprets them (the second paragraph of Article 3 of the Constitution). This requirement prevents courts from including anything in the scope of criminal liability that the legislature did not clearly and precisely include already at an abstract level through a definition of the elements of an individual criminal offence. This obligation is stronger than the general obligation that binds judges to laws (Article 125 of the Constitution) and it reduces the freedom of criminal judges when interpreting the law. Only those methods of interpretation that remain strictly within the possible meaning of the wording are admissible, while the use of analogy is inadmissible (lex stricta).[17] The requirement of the strict interpretation of criminal laws is also consistent with such.[18] A judge must constantly be aware of the constitutional lex scripta requirement – namely the requirement that strictly binds the interpreter to the law, as the legislature is the one who determines the scope of criminal liability by law. The interpreter of that law – i.e. the judge – does not possess such a power and his or her interpretation of the law has to remain entirely within that scope. As a consequence of the observance of the above-mentioned constitutional requirement, the separation of the competences that the Constitution vests in the legislature from the competences that pertain to the courts also constitutes a constitutional law aspect that the Constitutional Court has to review within the framework of the first paragraph of Article 28 of the Constitution. If the Constitutional Court did not include this constitutional law aspect in its review, control of the observance of the lex scripta and lex stricta requirements in individual criminal proceedings would be fundamentally impaired.
 
21. The lex certa requirement entails that a criminal law must be definite, certain, clear, and predictable, which, on one hand, is a question of the objective semantic precision of the text in its objective meaning, and, on the other hand, of the subjective comprehension of that meaning in the sense that the perpetrator knows ex ante what constitutes criminal conduct. When the courts interpret the statutory elements of a criminal offence and extract the abstract statutory definition of the criminal offence, they naturally interpret the statutory elements with regard to the concrete facts of the given case (i.e. the past event) that are relevant from the perspective of the abstract definition of the criminal offence – they namely interpret the statutory definition of the criminal offence with regard to the legally relevant facts of a concrete case. A conviction for a criminal offence is only possible after the court extracts the abstract, i.e. statutory, definition of the criminal offence from the statutory provision and the legally relevant facts from the concrete case, and by means of their subsequent comparison establishes that the legally relevant facts of the case constitute an example of the statutory definition of the criminal offence to which a legal consequence (i.e. a criminal sanction) is linked.[19] If we wish to verify whether the courts observed the lex scripta, lex certa, and lex stricta requirements[20] when interpreting a criminal law (i.e. when extracting the statutory definition of a criminal offence), the legally relevant facts of the concrete case become the content that has to be compared to the content of the interpreted element of the criminal offence – i.e. to the content of the statutory definition of the criminal offence. Only after the content that defines one of the legally relevant facts of the concrete case has been established is it namely possible to review whether the court, by deeming that such content was decisive from the perspective of the statutory definition of the criminal offence, attributed to the statutory provision content that is imprecise in and of itself or even content that the legislature did not include in the scope of criminal liability.[21] The decisive facts must include descriptions of all of the statutory elements of the criminal offence at the level of the legally relevant facts that have been extracted from the concrete case – therefore we can also speak of a description of the criminal offence that has to include all of the statutory elements of the criminal offence, as it is only through them – and only through all of them together – that the individual's conduct (an action or omission) that corresponds to the conduct that falls within the scope of criminal liability is defined.[22] The content of an individual legally relevant fact (or of a number of legally relevant facts) has to correspond to the content of an individual element of the criminal offence as determined by law, which entails that the interpretation of an element of the criminal offence may only encompass such legally relevant facts of a concrete case that correspond definitely and strictly (lex certa and lex stricta) to the statutory definition of the criminal offence.
 
22. With regard to what has been stated in the preceding paragraph, it has to be particularly emphasised that such does not concern the question of the correct application of substantive law, but the question of its constitutionally consistent interpretation from the perspective of the requirements stemming from the first paragraph of Article 28 of the Constitution. The review of the Constitutional Court does not include a review of whether the courts correctly established a decisive fact with regard to the concrete case,[23] as such is not an aspect of the principle of legality in criminal law, but it entails the question of the correct establishment of the facts or the correct assessment of the evidence, which lie in the competence of the regular courts. In its review, the Constitutional Court is bound by the established facts. The concept of the description of the criminal offence as it is applied by the Constitutional Court cannot be equated only with the description of the criminal offence contained in the operative provisions of a judgment. Whether the description of the legally relevant facts of the case is in its entirety included in the operative provisions, or whether it is partially included in the operative provisions and partially in the reasoning through the concretisation of the decisive facts, is namely not a question of constitutional law, but a question of the correct interpretation of criminal procedural law, which is a matter that lies in the competence of the regular courts and not the Constitutional Court. Even if the operative provisions only contained the finding that an individual committed a specific criminal offence and the sentence imposed on him or her for such, while the entire description of the criminal offence was included in the reasoning of the judgment,[24] such would not be of relevance from the perspective of constitutional law, as the Constitution does not prescribe the structure of a criminal judgment of conviction. Consequently, the position of the Supreme Court that the operative provisions of a judgment and its reasoning constitute a whole cannot be the subject of a review by the Constitutional Court; it is thus irrelevant for a constitutional review whether a specific decisive legally relevant fact of the case is included in the operative provisions of a judgment or in its reasoning. It is, however, important that it is included in the judgment.
 
23. In order for an individual's conduct to constitute a criminal offence and for the perpetrator to also be guilty of such, his or her conduct must fulfil all of the objective and subjective elements of the criminal offence.[25] From such as well as from the above-provided explanations there follows the requirement that the description of the criminal offence (i.e. the legally relevant facts of the concrete case when compared to the statutory definition of the criminal offence) has to contain all of the elements of the criminal offence. If any element is omitted, such entails a violation of the principle of legality in criminal law. The Constitutional Court has repeated this position on a number of occasions.[26] It substantiated this by clarifying that unless the description of the criminal offence contained all of the elements of the criminal offence, a conviction would entail a conviction for something that is not a criminal offence.[27] For this to be the case, it already suffices that only one element of the criminal offence is omitted from its description. Such a situation may come about in different ways. In the event that one of the elements of the criminal offence is omitted from the description of the criminal offence, such entails precisely an example of the above stated – a conviction for something that is not a criminal offence. However, we also arrive at the same conclusion in the event that a court interprets an element of a criminal offence in such a manner that it thereby extends the scope of criminal liability as determined by law: the court interprets the legislature's precise definition of a statutory element of the criminal offence extensively and thereby violates the lex certa [requirement]; at the same time it violates the lex scripta and lex stricta requirements if through its interpretation it itself determines that also conduct that the legislature did not include in the scope of criminal liability is criminal.[28] It is for this reason that the requirement that all of the elements of the criminal offence have to be included in the description of the criminal offence is of such importance from the perspective of the substantive constitutional safeguard stemming from the first paragraph of Article 28 of the Constitution.
 
24. The requirement that the description of the criminal offence has to include all of the statutory elements of the criminal offence cannot extend to something that does not constitute an element of the criminal offence at the level of the statutory definition of the criminal offence. If, e.g., the time, place, and manner in which the criminal offence was committed are not in themselves elements of the criminal offence, their absence from the description of the criminal offence cannot entail a violation of the first paragraph of Article 28 of the Constitution.[29]
 
25. In addition to requiring that all of the statutory elements of the criminal offence have to be included in the description of the criminal offence, the Constitutional Court has hitherto not required that concrete conduct (i.e. the legally relevant facts of the concrete case), which we can subsume under the individual elements of the alleged criminal offence as follow from the statutory definition of the criminal offence, has to be included in the description as well. However, from the perspective of what was stated above in Paragraph 21 of the reasoning of this Decision, such a requirement is the logical continuation of the requirement of the existence of all of the statutory elements of the criminal offence. Only once we know the content of every individual fact within the framework of the legally relevant facts[30] can we namely conduct a comparison with what the legislature determined to be an element of the criminal offence at the level of the statutory definition of the criminal offence.[31] If we do not know the content of the conduct that the court determined to constitute an element of the criminal offence in the framework of the legally relevant facts of the case, if such element is namely not even formulated from the established facts regarding the perpetrator's conduct and thus concretised, we cannot review if the courts interpreted the statutory text in accordance with the requirements stemming from the first paragraph of Article 28 of the Constitution.
 
26. In light of the above, the complainant's allegation that the description of the criminal offence for which he was convicted does not contain the concretisation of the statutory element of acceptance (of the promise of a reward) as such is only included as a copy of that element from the statutory definition of the criminal offence under the first paragraph of Article 269 of the CC, can be linked precisely to the requirements that stem from the principle of legality in criminal law. With regard to what was stated in Paragraph 19 of the reasoning of this Decision, the Constitutional Court does not review an act of indictment when assessing if such allegation of the complainant is substantiated.
 
 
B – II
 
27. The wording of the first paragraph of Article 269 of the CC (accepting a gift for unlawful intervention) reads as follows: "(1) Whoever requests or accepts a reward, gift or any other benefit or the promise or offer of such benefit for him- or herself or for another in exchange for the exploitation of his or her position or influence to intervene so that a certain official act be performed or not be performed, shall be sentenced to imprisonment not exceeding three years." The statutory elements[32] of this criminal offence are: 1) whoever, 2) for him- or herself or for another, 3) accepts 4) the promise of a reward 5) with the intent to exploit his or her position or influence to intervene so that 6) an official act be performed. The acceptance (of the promise of a reward) is an independent statutory element and entails an act of commission. This is a criminal offence that the perpetrator commits by active conduct. It is already clear on the basis of a grammatical interpretation that for the offence to be completed it suffices that the promise is accepted; there is no requirement that the perpetrator also actually intervenes. If the intervention occurs, such still concerns the criminal offence under the first paragraph of Article 269 of the CC, and the same is true if a benefit (a reward) is received in exchange for the intervention. Such a conclusion is already dictated by a grammatical interpretation of the third paragraph of Article 269 of the CC (accepting a benefit for intervening with regard to an unlawful official act), which only refers to the second paragraph of Article 269, namely to instances of unlawful intervention with regard to unlawful official acts, and not also to instances of unlawful intervention with regard to lawful official acts that otherwise would have to be or could be performed (the first paragraph of Article 269 of the CC).[33] The first paragraph of Article 269 of the CC thus encompasses the mere acceptance of the promise as well as the perpetrator's possible further actions, i.e. from (an attempt at) intervening to actually receiving the reward (benefit) for the intervention.
 
28. Thus, under the first paragraph of Article 269 of the CC, already the acceptance of the promise of a reward with the intent to intervene of itself is punishable, which is due to the state's commitments in accordance with Article 12 of the Criminal Law Convention on Corruption (the Act Ratifying the Criminal Law Convention on Corruption, Official Gazette RS, No. 26/2000, MP, No. 7/2000 – ICLCC). The Supreme Court is of the opinion that this criminal offence entails the criminal sanctioning of intent that has not yet been realised, namely the perpetrator's specific intent to commit a certain criminal offence that is usually regarded as extremely dangerous or serious. The criminal offences that entail the criminal sanctioning of corruptive conduct are without a doubt dangerous and they affect an important social value – trust in the lawful and honest conduct of public officials and bearers of power that perform official acts, or as the Supreme Court held: "… the commitment of the entire society and of each individual to the proper and lawful functioning of state services and other services operating in the public interest." In the opinion of the Supreme Court, precisely the perpetrator's specific intent entails the distinguishing element that separates the determination of criminal liability for a preparatory act from conduct that is not criminal.
 
29. However, it has to be established that the specific intent is only one of the elements of the criminal offence – a subjective element that has to be distinguished from the element of acceptance (of the promise of a reward), which is an objective element of the criminal offence. As such, the latter has to be detectable in the external world. The perpetrator can namely only commit this criminal offence with his or her conduct (even if he or she, e.g., accepts the reward through an intermediary – an assistant), as it is crucial for the acceptance of the reward that the perpetrator's will regarding such is expressed. It is clear that a precondition for the commission [of this criminal offence] is the prior offer of the promise of a reward that is accepted by the perpetrator. An agreement is thus concluded between the person making the promise of a reward and the person accepting the promise of a reward, which the latter concludes precisely by the specific intent to exploit his or her influence or position to intervene with regard to an official act.[34] At the moment when the perpetrator decides by him- or herself to accept the promise of the reward he or she has not yet committed the criminal offence. Such is logical as it would entail the criminalisation of thought, which would be inadmissible. It can definitely not be attributed to the legislature that it wanted to enact such by the first paragraph of Article 269 of the CC. The expressed will to accept (the promise of a reward) must reach the person who made the promise. It does not suffice if it remains in the sphere of the individual's privacy, which other persons cannot access.
 
30. As the courts held, the method of communication, i.e. the manner in which the promise is accepted, is not a statutory element of the criminal offence under the first paragraph of Article 269 of the CC. This is correct. If it were, such would entail that the criminal offence – accepting the promise of a reward – could only be committed in a precisely determined manner by means of which the legislature would have additionally narrowed the scope of criminal liability for this offence. In what manner the acceptance is realised is therefore irrelevant. What is decisive is whether it occurs. However, such does not entail that it is not necessary to define at the level of the legally relevant facts of the concrete case the perpetrator's conduct that could be detected in the external world and by means of which the perpetrator fulfilled precisely that statutory element of the criminal offence. The possibility that this requirement could be replaced with a concretisation of other statutory elements of the criminal offence is excluded. When the manner of the acceptance of the promise is known, which is only possible in instances when there exists evidence regarding such, then also the perpetrator's conduct that of itself entails the acceptance (of the promise of a reward), whereby the manner of acceptance only represents accompanying circumstances that are not relevant from the perspective of the statutory element. It is logical that, as the Supreme Court held, criminal offences of corruption are carried out in secret and not publicly and in the presence of witnesses (who do not participate in the agreement). This makes them even more dangerous and there is little chance that in the commission of such a criminal offence the perpetrator's direct conduct that entails the expression of the will to accept (the promise of a reward) could be established. The Supreme Court especially cautioned that the agreement on the acceptance of the promise of a reward can be tacit, that there can also be acceptance through conclusive conduct. In such an instance there would thus be a conclusive acceptance of the promise of a reward. However, such would only entail one of the possible manners of accepting the promise. There still remains the need for an outward expression of the perpetrator's conduct that can substantiate, in accordance with logic and experience, that the will to accept (the promise of a reward) has been expressed. Such may only be conduct of the perpetrator that in the context of the circumstances of the case at issue allows the credible conclusion that the perpetrator accepted the promise of a reward.
 
31. Regardless of the manner in which the acceptance of the promise of a reward is realised, the first paragraph of Article 28 of the Constitution determines constitutional boundaries to be respected by the regular courts when assessing which of the legally relevant facts of a concrete case correspond to the statutory element of acceptance (of the promise of a reward) in accordance with the first paragraph of Article 269 of the CC. The constitutional requirements stemming from the principle of legality are binding on regular courts whenever they interpret the statutory element of acceptance (of the promise of a reward), regardless of whether they are assessing the complainant's conduct that entails the direct acceptance of the promise or the complainant's conduct that indicates the acceptance of the promise. If the acceptance of the promise has not been directly detected, there exists a danger that the court might include a wide range of conduct of the individual that as such is not characteristic of expressing the acceptance (of the promise of a reward). This could lead to a broadening of the scope of criminal liability. Consequently, in this regard only such conduct is relevant that by its nature and content and in the circumstances of the case at issue allow that the existence of that statutory element is established beyond a reasonable doubt. When the court decides on such, it has to take into consideration that practically the only objective element of the criminal offence that can be attributed precisely and only to the perpetrator of that criminal offence is the acceptance (of the promise of a reward). The other objective elements are independent of his or her conduct (the reward, the promise of the reward, the official act). Therefore, in the interpretation of this element of the criminal offence – in the extraction of the statutory definition of the criminal offence with regard to the legally relevant facts of the concrete case – the lex scripta, lex certa, and lex stricta requirements have to be given even further emphasis; this is even more true if in the circumstances of the case at issue the existence of this essential element of the criminal offence is derived from the perpetrator's other conduct. This namely entails that as such the conduct that entails the acceptance of the promise of a reward cannot even be assessed from the perspective of certainty and strictness because we do not even know it. From these perspectives, we can only assess the conduct from which we draw conclusions regarding the existence of the statutory element of the criminal offence.
 
32. In addition to the existence of all other statutory elements of the criminal offence, the acceptance of the promise of a reward determined by the first paragraph of Article 269 of the CC thus requires that the perpetrator has to express the will to accept (the promise of a reward) with his or her own conduct or at least indicate acceptance with his or her own conduct on the basis of which, given its nature and content and in the circumstances of the case at issue, the existence of this statutory element can be established beyond a reasonable doubt. The constitutional requirements stemming from the first paragraph of Article 28 of the Constitution are thus in any event a constituent part of the assessment of the statutory element and the legally relevant facts of the concrete case that a regular court has to perform. Disregard for these requirements entails a violation of the right determined by the first paragraph of Article 28 of the Constitution.
 
 
B – III
 
The alleged unconstitutionality of the first paragraph of Article 269 of the CC
 
33. The complainant first alleges that the first paragraph of Article 269 of the CC is inconsistent with the principle of certainty. The unclear statutory provision allegedly enables arbitrary punishment, which is allegedly confirmed by the positions adopted by the regular courts that the alleged criminal offence is committed already with the acceptance of the promise, whereby it is not necessary that the perpetrator in fact intervenes. With regard to the presented constitutional law positions (Paragraph 17 of the reasoning of this Decision), in the case at issue there could have occurred a violation of the principle of certainty if the statutory provision was in fact unclear and indefinite to such an extent that it would allow arbitrary punishment. In such a case, in accordance with the second paragraph of Article 59 of the CCA, the Constitutional Court would firstly assess the constitutionality of the statutory provision on the basis of which the challenged judgments were adopted. However, the case at issue is not such a case.
 
34. Already a grammatical interpretation of the wording of the first paragraph of Article 269 of the CC leads to the conclusion that for the criminal offence of accepting a gift for unlawful intervention to be completed an intervention is not required when the criminal offence is committed in the form of "accepting the promise of a reward or benefit". In the statutory text thus the conditional form is applied, i.e. "in exchange for the exploitation of his or her position or influence to intervene", which points to the intent that was the reason for the acceptance of the promise of the reward or benefit; however, the mere acceptance of the promise actually suffices for the completion of the criminal offence. The above-stated shows that the meaning of the statutory terms can be construed by means of established methods of interpretation and therefore the complainant's allegation that the first paragraph of Article 269 of the CC is contrary to the lex certa requirement is not substantiated. However, whether the regular courts also interpreted the clear statutory provision in accordance with the Constitution is not the subject of the assessment of the constitutionality of the statutory provision, but the subject of the review of the positions adopted in the challenged judgments. 
 
 
B – IV
 
The existence of the elements of the criminal offence
 
35. The complainant alleges that not all of the statutory elements follow from the description of the criminal offence of which he was convicted and this allegedly entails a violation of the principle of legality stemming from the first paragraph of Article 28 of the Constitution.
 
36. With regard to such, the regular courts adopted the same position, namely that all of the elements of the criminal offence, including the decisive facts, follow from its description.[35] The court of first instance deemed that the description was already sufficiently defined by the listing of the statutory elements of the criminal offence. Allegedly, the description of the criminal offence has to include in particular the decisive facts that express the statutory elements of the criminal offence, but not the facts and circumstances on the basis of which conclusions regarding the so-called internal subjective facts (the content of consciousness, will, intent, etc.) are drawn. With regard to the statutory element of acceptance (of the promise of a reward), the court of first instance adopted the position that the facts and circumstances that were applied to substantiate the statement that the complainant accepted the promise of a reward are matters that belong in the reasoning by means of which that statutory element is established. In connection with the statutory element of "influence", however, it deemed that the statutory definition is open-textured as regards its content and that it is already realised when the perpetrator accepts the offer of a benefit, at which point it is not even necessarily true that he or she will actually have to intervene with others. According to the assessment of the court [of first instance], the time and place of the commission of the criminal offence, while important for the individualisation of the concrete criminal offence, do not constitute elements of the criminal offence in question, and in any event all of the statutory elements of the criminal offence and the decisive facts follow from the description. The Higher Court and the Supreme Court confirmed this position; according to their assessment, the manner in which the promise was accepted does not constitute a statutory element, and the same is also true with regard to the time and place of the commission of the criminal offence.
 
37. From the perspective of the first paragraph of Article 28 of the Constitution, the relevant question is whether the act for which the complainant was convicted, provided that his guilt had been proven beyond a reasonable doubt, even constitutes a criminal offence at all. A comparison of the statutory elements of the criminal offence with the legally relevant facts of the concrete case shows that from a formal legal perspective the description of the criminal offence contains all of the statutory elements: for the political party SDS ("for another")[36]  and through Jože Zagožen, Ivan Janša ("whoever") accepted ("accepts") the promise of the payment of a commission on the sale [at issue] in accordance with the contract that had been agreed on as a 4.2% commission for Walter Wolf ("the promise of a reward"), even though the political party SDS was not entitled to any kind of commission on the sale in accordance with the contract concluded between the company Patria and the company RHG, with the intent that as the Prime Minister, the President of the SDS political party, a former minister, and an influential personality he would intervene ("with the intent to exploit his influence to intervene") with those persons at the Ministry of Defence of the Republic of Slovenia who participated in the confidential public tender procedure and the company Patria, or more precisely, its local agent would be selected as the best tenderer, whereby the confidential public tender procedure is an official act ("official act"). As the courts established, the complainant instructed Jože Zagožen to request the prepayment of 30% of the promised commission. In light of the fact that all of the statutory elements of the criminal offence can be derived from the above-presented description, the complainant's allegations that are aimed at the positions of the regular courts regarding the existence of the elements of the criminal offence are not substantiated. As was already clarified in Paragraph 24 of the reasoning of this Decision, the time, place, and manner of the commission of the criminal offence are not statutory elements and therefore their absence in the description of the criminal offence cannot entail a violation of the first paragraph of Article 28 of the Constitution. The case at issue thus is not a situation wherein a statutory element was omitted from the description of the criminal offence, but concerns the question of whether the statutory element of acceptance (of the promise of a reward) was concretised.
 
  
B – V
 
The concretisation of the element of the criminal offence of acceptance (of the promise of a reward)
 
38. The complainant was found guilty of accepting, between 10 August 2005 and 22 August 2005, through Jože Zagožen and for the political party SDS, the promise of the payment of a commission on the sale in accordance with the contract between the company Patria and the company RHG that had been made by the leading employees of the company Patria Vehicles Oy, Tuomas Korpi, Heikki Hulkkonen, and Reijo Niittynen. The political party SDS was not entitled to the commission, and the leading employees of the Patria company allegedly promised it with the intent that Ivan Janša as an influential personality would exert influence on those persons at the Ministry of Defence of the Republic of Slovenia who participated in the confidential public tender procedure and that Patria, or more precisely its local agent, would be selected as the best tenderer, whereby the confidential public tender procedure is an official act. Subsequently, on 22 August 2005 Jože Zagožen, allegedly with the same intent and in accordance with the complainant's instructions, requested through Walter Wolf, and the latter further through Hans Wolfgang Riedl, the prepayment of 30% of the promised commission from Reijo Niittynen. In accordance with the court's position, the facts and circumstances by which the statement that the complainant accepted the promise of a reward is substantiated are matters that belong in the reasoning of the judgment. Thereby the complainant allegedly committed the criminal offence under the first paragraph of Article 269 of the CC.
 
39. All of the courts that decided on the merits of the charges against the complainant were faced with the complainant's allegation that the statutory element of acceptance (of the promise of a reward) simply reiterates the statutory element of the criminal offence without concretising the complainant's conduct that allegedly entailed the acceptance (of the promise of a reward). In accordance with the position of the Supreme Court, when a certain statutory element cannot be concretised by a different formulation or if such would not be feasible, it suffices for the concretisation of the criminal offence if the (abstract) term is applied or reiterated in the (concrete) description of the criminal offence. Such allegedly occurs in instances that concern statutory elements that are expressed in words that have a clear, precisely determined, and concrete meaning. The term to accept (the promise of a reward) allegedly entails concrete conduct by which someone accepts something that is offered or given, i.e. promised, by another. In individual cases, when they are included in the factual description of the real life event, such terms from the statutory text allegedly assume the role of facts. The court of first instance and the court of second instance also adopted in principle the same position, but expressed it partly differently (the acceptance of the promise of a reward is a fact that is established and substantiated by facts and circumstances, which the court states in the reasoning of the judgment). Consequently, the reiteration of the statutory element of the acceptance (of the promise of a reward) in the description of the criminal offence allegedly entailed a sufficient concretisation of the alleged criminal offence or a statutory element thereof. Such a position of the Supreme Court (and of the court of first instance) has to be understood from the perspective of its interpretation of the provision of criminal procedural law that requires that the description of the criminal offence contain all decisive facts (in the operative provisions of the judgment) that concretise the criminal offence, while with regard to other circumstances it suffices that they are included in the reasonsing of the judgment, whereby the judgment has to be reviewed as a whole. As was already pointed out (Paragraph 22 of the reasoning of this Decision), whether conduct that due to its nature and content may, beyond a reasonable doubt, result in the realisation of the statutory element is included in the operative provisions of the judgment or in its reasoning is not a constitutional law question. What is of relevance for constitutional law is whether such conduct is clearly included in the judgment among the legally relevant facts of the concrete case that can be compared to the statutory element of acceptance (of the promise of a reward). Only in such instances can a review from the perspective of the first paragraph of Article 28 of the Constitution be performed.
 
40. As was already stated (Paragraph 30 of the reasoning of this Decision), a court may not replace the concretisation of one of the statutory elements of the criminal offence with the concretisation of other statutory elements of the criminal offence. Otherwise we would allow for instances where a statutory element at the level of the legally relevant facts of the concrete case would not even have been realised. In such a case, a conviction for the criminal offence would entail a conviction for an act that lacks a statutory element, namely an act that the legislature did not even determine to be a criminal offence. Therefore, in this regard already as a starting point attention has to be drawn to the constitutionally unacceptable positions of the regular courts entailing that the circumstances in connection with the other statutory elements indicate that the complainant accepted the promise of a reward. The Supreme Court linked the complainant's acceptance (of the promise of a reward) with the concretised statement of the commission ("the acceptance of the payment of a reward is concretised by the description of the commission on the sale according to the contract and the percentage as well as that the commission was to be calculated on the basis of the amount of EUR 161,900,000.00" and "the commission in the sense of the promised reward is thus concretised with sufficient precision and the statutory element of acceptance of the promise is also concretised in such manner – i.e. he accepted the promise of the payment of a commission")[37] and with the intent underlying the acceptance of the promise that is linked to the complainant's position and thereby with the potential influence of the persons at the Ministry of Defence of the Republic of Slovenia with regard to the choice of the supplier in the purchase of armoured vehicles. What the Supreme Court in this regard deemed to constitute the outward expression of the acceptance of the promise of a reward is connected to the reward (benefit) itself or the promise of the reward and the intent underlying the acceptance of the promise. However, the acceptance (of the promise of a reward or benefit) is an independent statutory element that must not be interpreted in such a manner that it is merged with the other statutory elements and such that the realisation of those statutory elements would automatically also entail the realisation of that statutory element.[38] The concretisation of the reward (i.e. the benefit) and the intent thus cannot be applied to substantiate that the complainant actually accepted the promise of the reward. The mere existence of the reward (or even only of the promise of the reward) or the existence of the intent to accept it (even if the promise of a reward had been made) namely do not indicate that the complainant's conduct was criminal, unless it can be established that the acceptance (of the promise of a reward) in fact occurred – unless namely also that statutory element had been realised. The above-stated positions are thus already as such inconsistent with the first paragraph of Article 28 of the Constitution.
 
41. When the regular courts, from the court of first instance to the Supreme Court, replied to the [allegations regarding] the missing concretisation of the acceptance of the reward, they adopted the position that it suffices if the description of the criminal offence (from the perspective of the courts in the operative provisions) contains the decisive facts (whereby as regards the acceptance, the mere reiteration of the statutory element suffices due to its clarity and precisely determined meaning), while their concretisation is a matter that belongs in the reasoning of the judgment, whereby the operative provisions and the reasoning in any event entail a whole. As was already highlighted in Paragraph 22 of the reasoning of this Decision, which part of the judgment has to contain the concretisation of the individual elements of the criminal offence is not important from the perspective of constitutional law, it may also be included in the reasoning of the judgment. However, it is important that it is included in the judgment. In connection with such, the Supreme Court expressly stated that the fact there occurred acceptance (of the promise of a reward) in the time period between 10 August and 22 August 2005 is concretised by the description that, in accordance with the complainant's instructions, on 22 August 2005 Jože Zagožen requested a 30% prepayment of the promised commission and a contract determining the prepayment. Thereby the acceptance of the promise of the reward was allegedly expressed in the external world. The mentioned position indicates that with regard to the complainant's instructions to request the prepayment of the promised commission the Supreme Court concluded that the complainant had accepted the promise of the reward. Thereby Jože Zagožen’s alleged request for the prepayment of the promised commission was concretised. The act of giving instructions for the request attributed to the complainant, however, is not concretised in any manner. By its content and nature the term "to give instructions" is comparable to the term to accept (the promise of a reward). The complainant could only have realised it through his own conduct. If such conduct was not directly detected, it could only entail such conduct that in the circumstances of the case at issue could have led to the conclusion that the instructions had been given. Such entails that, with regard to the above-stated positions of the court of first instance and the Supreme Court, already the first instance court should have concretised not only the statutory element of acceptance (of the promise of a reward), but also the complainant's conduct "to give instructions to request the prepayment of the commission". It follows from the challenged judgments that the court [of first instance] did not establish conduct of the complainant that would have as such directly entailed the acceptance (of the promise of a reward) or direct conduct that would have as such entailed the giving of instructions to request [the prepayment]. Therefore, already the court of first instance should have extracted from all of the established facts those facts regarding the complainant's conduct that in the circumstances of the case and due to their nature and content even allowed the existence of the statutory element of acceptance (of the promise of a reward) to be established beyond a reasonable doubt. If it deemed that the complainant's instructions to request the prepayment constituted such conduct, it should have equally extracted the facts that indicate precisely that.
 
42. Therefore, it does not follow from the challenged judgments that when establishing whether the decisive facts (i.e. the ones that they should have deemed to constitute the legally relevant facts of the concrete case) correspond to the statutory element of acceptance (of the promise of a reward) the courts performed a review from the perspective of the constitutional requirements stemming from the principle of legality, although the complainant had been invoking them throughout the proceedings. With regard to what was stated in the preceding paragraph, the courts further did not satisfy that requirement through the concretisation of the other statutory elements of the criminal offence.
 
43. It follows from the above-stated that in interpreting the statutory element of acceptance (of the promise of a reward) under the first paragraph of Article 269 of the CC, the courts failed to consider the requirements stemming from the first paragraph of Article 28 of the Constitution. Already as a result of this the challenged judgments violated the complainant's right ensured by the Constitution in terms of a constitutional substantive safeguard of defendants in criminal proceedings. Consequently, the Constitutional Court abrogated the challenged provisions (Point 1 of the operative provisions). In light of the nature of the established violation, it remanded the case to the court of first instance for new adjudication, namely in such a manner that a different judge of the Ljubljana Local Court is to decide thereon (Point 2 of the operative provisions).
 
44. In the new proceedings, the court will have to take into account the positions adopted in this Decision when defining the legally relevant facts of the case at issue. In accordance with those positions, it will have to extract the legally relevant facts of the case from all of the established facts of the past event in question in order to compare them with the statutory definition of the criminal offence, which it will have to obtain through an interpretation of the statutory term of acceptance (of the promise of a reward) in accordance with the requirements stemming from the first paragraph of Article 28 of the Constitution. It will have to take into account that the individual established instances of conduct that are as such not characteristic of an acceptance of the promise of a reward do not entail a realisation of that statutory element. Only due to the circumstances in which it occured can such conduct allow the conclusion that a promise was accepted. In such instances, it is important from the perspective of the first paragraph of Article 28 of the Constitution that a complainant's conduct always remains at the centre of the determination of the relevant statutory definition of the criminal offence. From the perspective of the interpretation of the statutory element of acceptance (of the promise of a reward) it is therefore important whether in the given circumstances the conduct of the complainant enables such a conclusion to be drawn. The inclusion – in this statutory element – of conduct embedded in the established circumstances of the case that due to its content and nature cannot suffice as proof of definite external detection of the complainant's acceptance of the promise of a reward, for example, would entail an interpretation extending its meaning. It is further clear that the promise of a reward, if such in fact was made, does not indicate the complainant's conduct – i.e. its acceptance. However, the latter is precisely what is decisive for the realisation of this statutory element of the criminal offence as one of the elements of the criminal offence under the first paragraph of Article 269 of the CC.
 
45. As the Constitutional Court abrogated the challenged judgments already due to the established violation of the right determined by the first paragraph of Article 28 of the Constitution, it was not necessary to review the other alleged human rights violations. The Constitutional Court nevertheless decided to also review the alleged violation of the right to impartial proceedings before the Supreme Court, insofar as it concerns the participation of the President of the Supreme Court in the adjudication. Such concerns the highest court of regular jurisdiction in the state, and therefore ensuring the appearance of impartiality of its adjudication is of special importance.  
 
 
B – VI
 
The review from the perspective of the right to impartial adjudication before the Supreme Court
 
46. The complainant also alleges a violation of the right to impartial proceedings determined by Article 23 of the Constitution at the Supreme Court as that court inter alia did not grant a request for the disqualification of its President, Branko Masleša.
 
47. It follows from the Order of the plenary session of the Supreme Court, dated 27 August 2014, that the Supreme Court Judges reviewed the complainant's request for the disqualification of Branko Masleša with regard to his previous actions in his role as the President of the Supreme Court as well as with regard to his potential participation in the panel that was to decide on the [complainant's] extraordinary legal remedy. They adopted the position that Branko Masleša's speech at the Days of the Slovene Judiciary on 6 June 2014 did not raise any doubts regarding his impartiality and that there existed no reasons that would indicate his subjective or objective partiality. In the assessment of the plenary session of the Supreme Court, Branko Masleša had to respond to the pressure that had been exerted on the judiciary. However, in doing so he allegedly was not acting in his capacity as a judge, as at that time the Supreme Court had not yet received the complainant's request for legal protection, but rather responded in his capacity as the President of the Supreme Court. Branko Masleša thus allegedly responded in the function that pertains to the president of the highest court in the state within the framework of the judicial administration and which allegedly cannot be equated with the function of a judge.
 
48. By an Order, dated 29 September 2014, the plenary session of the Supreme Court also rejected the complainant's second request for the disqualification of the president of the panel, Branko Masleša, wherein the complainant claimed that the impartiality of adjudication was affected not only by the speech of 6 June 2014 but also by the decision of Judge Branko Masleša to preside over all criminal law panels until the end of 2014, namely also in the complainant's case. The partiality of the president of the panel, Branko Masleša, was allegedly further proven by a statement he had made on the street and that is allegedly established through a notarised statement of the Marvins, a married couple. The Supreme Court adopted the position that it had already decided on the alleged partiality due to the speech by its Order of 27 August 2014, and with regard to the statement of the Marvins it deemed that Branko Masleša enjoys the trust of the Supreme Court Judges and that they do not believe the statement to be true. With regard to his decision to preside over all criminal law panels, the plenary session of the Supreme Court adopted the position that in light of all the circumstances there existed no doubt regarding the impartiality of the president of the panel, Branko Masleša.
 
49. The right to judicial protection determined by the first paragraph of Article 23 of the Constitution entails the right of everyone to have any decision regarding his rights, duties, and any charges brought against him made without undue delay by an independent, impartial court constituted by law.[39] Impartiality entails that the one who is deciding is not interested in a particular outcome of the proceedings and that he or she is open to the parties' evidence and proposals. In order to be able to decide impartially, a judge must not have a preconceived opinion regarding the subject of the decision-making. The court's decision has to be adopted on the basis of the facts and arguments that the parties presented in the judicial proceedings, and not on the basis of information obtained outside of the proceedings.[40] In the exercise of the right to impartial adjudication it is not only important that the impartiality of adjudication is in fact ensured, but it must also be outwardly expressed. This concerns the so-called appearance of the impartiality of adjudication. It is thus important that in each concrete case the court creates and maintains the appearance of impartiality. Otherwise, the trust of the public in the impartiality of the courts in general as well as the trust of the parties in the impartiality of adjudication in concrete proceedings may be at risk.[41]
 
50. Furthermore, in accordance with the position of the ECtHR, the subjective criterion, which concerns the determination of the personal convictions of the judge deciding a case, as well as the objective criterion, which concerns the assessment of whether in the proceedings the judge ensured the implementation of procedural safeguards in such a manner that any legitimate doubt regarding his or her impartiality is excluded, are decisive for the impartiality of adjudication.[42] Thereby it is not only important whether the judge performed his or her function in the criminal proceedings in an impartial manner, i.e. whether the manner in which he or she performed his or her function could have influenced the outcome of the proceedings.[43] It is furthermore important that the impartiality of adjudication also has to be outwardly expressed.[44] Thereby the ECtHR verifies whether the judge provided sufficient safeguards to exclude all reasonable doubts regarding such. Such mainly concerns the confidence that courts in a democratic society must inspire in the public. The decisive factor is whether it can be established that a doubt is objectively justified.[45] It is therefore important that when acting in a particular case the court creates and maintains the appearance of impartiality.[46] At the statutory level, the right to impartial adjudication is implemented through the institution of the disqualification of judges.[47]
 
51. The position of the plenary session of the Supreme Court that there existed no subjective reasons that would indicate the partiality of President Branko Masleša does not raise any constitutional law considerations. However, the contrary is true with regard to its position that the objective reasons that could have affected the appearance of impartiality did not exist. In his speech of 6 June 2014, President of the Supreme Court Branko Masleša critically responded to destructive attacks aimed at judges, who may not respond to criticism due to their duty of secrecy. On that occasion he criticised the positions expressed by the complainant Ivan Janša regarding the court that, as the court of appeal, dismissed his appeal. Thereby he expressly emphasised that he did not wish to engage in an assessment of the correctness or legality of the Ljubljana Higher Court Judgment that was not in favour of the complainant.
 
52. The Constitutional Court already emphasised that it is not sufficient if in proceedings a court acts and decides in an impartial manner, it must furthermore be composed in such a manner that there exist no circumstances that would cast doubt on the appearance of the impartiality of the judges.[48] Such concerns the need to reinforce the confidence that courts in a democratic society must inspire in the public.
 
53. There is no dispute regarding the position that the President of the Supreme Court as the highest representative of the judicial branch of power and of all judges must have the possibility to respond when he deems that the judicial branch of power must be protected against attacks. However, if in doing so he critically responds to the conduct of a specific convicted person, his statements may cast doubt on the appearance of his impartiality that cannot as such be deemed to be objectively unjustified. Precisely due to the fact that as regards the composition of the court (or of its panels) it has to be ensured that there exist no circumstances that would cast doubt on the appearance of the judges' impartiality, and as a critical response to the complainant's publicly presented standpoints regarding the court that dismissed his appeal also constitutes such a circumstance, the President of the Supreme Court should not have participated in the panel that decided on the complainant's legal remedy against the final judgment of conviction as president of the panel. As has already been clarified, it is important to ensure the appearance of an impartial court. Therefore, it cannot be of any importance that in the speech at issue the President of the Supreme Court expressly stated that he would not engage [in an assessment of] the correctness and legality of the final judgment. What is at issue is namely not the potential subjective impartiality of the President of the Supreme Court in his role as the president of the panel that decided on the [complainant's] request for the protection of legality, but rather maintaining the appearance of the impartiality of the court in an objective sense. Such is the foundation of the trust of the public in an independent judiciary that resolves disputes in an impartial manner. Without engaging in an assessment of the response of the President of the Supreme Court to the attacks on the authority of the judiciary, the Constitutional Court has to ensure the appearance of impartiality in adjudicating. If the President of the Supreme Court made such a response, then the Supreme Court should have taken that into account when deciding on his disqualification. Thereby it is irrelevant whether the President responded in his function [as the highest representative] of the judicial administration. What is important is whether such a response could cast doubt on the appearance of the impartiality of adjudication if the President of the [Supreme] Court subsequently participated as a judge in [subsequent] adjudication. From such perspective, the speech of the President of the Supreme Court constituted an objective circumstance that could have cast doubt on the appearance of the impartiality of decision-making if he participated in [subsequent] adjudication. As such, the plenary session of the Supreme Court should have considered this and disqualified the President of the Supreme Court from adjudicating in the complainant's case.
 
54. With regard to the above, the circumstance that President Branko Masleša participated in deciding on the complainant's request for the protection of legality against a Ljubljana Higher Court Judgment, after he had critically responded, in a speech of 6 June 2014, to the positions expressed by the complainant in connection with the Ljubljana Higher Court, cast doubt on the appearance of the impartiality of the Supreme Court. Consequently, the complainant's right to impartial proceedings determined by the first paragraph of Article 23 of the Constitution was violated.
 
 
C
 
55. The Constitutional Court adopted this Decision on the basis of the first paragraph of Article 59 of the CCA and the third indent of the third paragraph and the fifth paragraph of Article 46 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, Nos.  86/07, 54/10, and 56/11), composed of: Mag. Miroslav Mozetič, President, and Judges Dr Mitja Deisinger, Dr Dunja Jadek Pensa, Mag. Marta Klampfer, Dr Etelka Korpič – Horvat, Dr Ernest Petrič, Jasna Pogačar, and Dr Jadranka Sovdat. Judge Jan Zobec was disqualified from deciding on the case. The decision was adopted unanimously. Judges Deisinger and Sovdat submitted concurring opinions.
 
 
 
Mag. Miroslav Mozetič
President
 
 
 
Endnotes:
[1] Namely Ivan Črnkovič and Anton Krkovič.
[2] See Paras. 13–21 of the reasoning of the Supreme Court Judgment.
[3] See Para. 24 of the reasoning of the Supreme Court Judgment.
[4] See Para. 25 of the reasoning of the Supreme Court Judgment.
[5] See Para. 32 of the reasoning of the Supreme Court Judgment.
[6] While in his appeal the complainant stated that the description of the offence does not concretise where the offence had been committed, he did not in fact stress the issue of jurisdiction with regard to such (see the third paragraph on p. 33 of the appeal).
[7] See Para. 37 of the reasoning of the Supreme Court Judgment, and pp. 71 and 72 of the Judgment of the court of first instance.
[8] See Para. 56 of the reasoning.
[9] The Constitutional Court already stated in Order No. Up-24/98, dated 10 July 2002, that the first paragraph of Article 28 of the Constitution, due to its wording, is only applicable to infringements of substantive criminal law that are constitutionally relevant.
[10] See Order of the Constitutional Court No. U-I-220/98, dated 16 July 1998 (OdlUS VII, 155) (a large quantity, high value, or great danger of weapons or explosives).
[11] See Order of the Constitutional Court No. Up-356/04, U-I-455/06, dated 7 December 2006 (OdlUS XV, 107) (a serious threat in conjunction with endangering security).
[12] See Order of the Constitutional Court No. Up-541/06, dated 18 January 2008.
[13] See Order of the Constitutional Court No. Up-190/97, dated 18 September 1997, and Decisions of the Constitutional Court No. U-I-213/98, dated 16 March 2000 (Official Gazette RS, Nos. 33/2000, and 39/2000 – corr., and OdlUS IX, 58), and No. U-I-73/09, dated 2 July 2009 (Official Gazette RS, No. 55/09, and OdlUS XVIII, 33).
[14] "The purpose of the principle of legality is to prevent a criminal conviction for an act regarding which an individual could not predict that it is a criminal act." See Orders of the Constitutional Court Nos. Up-62/99, dated 4 July 2000, and Up-437/00, dated 27 February 2003.
[15] Regarding the requirement that statutes have to be interpreted in accordance with the Constitution, see M. Pavčnik in: M. Pavčnik and A. Novak (Eds.), (Ustavno)sodno odločanje [(Constitutional) Judicial Decision-Making], GV Založba, Ljubljana 2013, pp. 73–75.
[16] As held by the Constitutional Court already in Order No. Up-366/05, dated 19 April 2007.
[17] As held by the Constitutional Court already in Decision No. U-I-213/98, as well as in Decision No. U-I-73/09.
[18] As held by the Constitutional Court already in Order No. Up-190/97, and expressly also in Decision No. Up-265/01, dated 26 October 2001 (Official Gazette RS, No. 88/01, and OdlUS X, 228).
[19] Cf.  M. Pavčnik, Teorija prava, [Theory of Law], fourth revised and supplemented edition, GV založba, Ljubljana 2011, pp. 312–319, and M. Pavčnik, Argumentacija v pravu [Argumentation in Law], Cankarjeva založba, Ljubljana 1998, p. 27.
[20] With regard to the circumstances of the case at issue, the lex praevia requirement does not require further consideration.
[21] With regard to, e.g., the question of whether the criminal offence of unauthorised crossing of the state border also encompasses cases where the border has not been crossed (which was a fact established in the judicial proceedings), the Constitutional Court considered that fact, which the courts had established as one of the legally relevant facts of the case, and compared it to the fact stemming from the abstract definition of the criminal offence as determined by the legislature. From Decision No. Up-265/01: "The Constitutional Court deems that it clearly follows already from a grammatical interpretation of the definition of the criminal offence of unauthorised crossing of the state border that the crossing of the border of the Republic of Slovenia is a statutory element of the offences under all of the paragraphs of Article 311 of the CC. The border of the Republic of Slovenia is also the attacked value with regard to that criminal offence. The cited criminal offence is included in the chapter entitled Criminal Offences against Public Order and Peace. A characteristic of the criminal offences under this chapter is that they protect the internal public order of the Republic of Slovenia. An act that did not include a crossing of the border of the Republic of Slovenia therefore cannot constitute the criminal offence under Article 311 of the CC." Cf.  also Decision No. Up-40/94, dated 3 November 1995 (OdlUS IV, 136), which concerned the question of whether scrips constituted money and as such they were encompassed by the criminal offence of counterfeiting money.
[22] In Decision No. Up-265/01 the Constitutional Court particularly emphasised that only all of the elements of the criminal offence, taken together with the value protected by criminal law that was the reason for the incrimination of the act in the first place, show the actual substantive content of the criminal offence and the purpose of its incrimination.
[23] It is a matter of the assessment of the evidence whether the court correctly established the existence of an element of the criminal offence (i.e. a decisive legally relevant fact of the case that entails an element of the criminal offence); as held already in Order No. Up-167/96, dated 15 June 1998. See also Orders of the Constitutional Court No. Up-456/01, dated 21 May 2003, and No. Up-38/06, dated 8 May 2007.
[24] The same is also applied, e.g., by German and French criminal courts, which the same as Slovene courts deem that only the operative provisions of a judgment become final. See, e.g., Judgment No. 11/06308357 of the 17th Panel of the Tribunal de Grande Instance de Paris on the basis of a private law suit of Marine Le Pen against the alleged perpetrators, dated 16 February 2012, and Landgericht Bochum Judgment No. 2 Kls 35 Js 158/07, dated 1 April 2008.
[25] Decision of the Constitutional Court No. Up-758/03, dated 23 June 2005 (Official Gazette RS, No. 66/05, and OdlUS XIV, 96).
[26] Held by the Constitutional Court already in Order No. Up-190/97 as well as in Orders No. Up-24/98, No. Up-354/00, dated 25 September 2002, No. Up-456/01, and No. Up-1023/05, dated 28 February 2008, and Decisions No. Up-259/00, dated 20 February 2003 (Official Gazette RS, No. 26/03, and OdlUS XII, 51), and No. Up-758/03.
[27] Decision of the Constitutional Court No. Up-758/03.
[28] As in the example in Decision of the Constitutional Court No. Up-265/01, which concerned the question of whether the criminal offence of unauthorised crossing of the state border also encompasses cases where the border has not been crossed. In that example the statutory offence formally existed, but in reality the interpretation of the courts led to a situation wherein the statutory element of the crossing of the state border was not included in the description of the criminal offence. The case thus entailed a conviction for an act that did not constitute a criminal offence. As it deemed that the criminal offence also encompassed the facts of the concrete case in which no crossing of the border occurred, the court at the same time extended the scope of criminal liability into an area that the legislature did not include in the abstract definition of the criminal offence
[29] See Order of the Constitutional Court No. Up-24/98. If the time of the commission of a criminal offence is an important circumstance for the legal qualification of the criminal offence, but its definition in terms of a limited period of time instead of a date is not in itself disputable from the perspective of the first paragraph of Article 28 of the Constitution; held by the Constitutional Court in Order No. Up-62/99.
[30] As in Decision of the Constitutional Court No. Up-40/94, e.g., whether the case involved the forgery of "a banknote" or "a scrip".
[31] In the case of Decision of the Constitutional Court No. Up-40/94, e.g., "money".
[32] As the complainant was convicted of accepting the promise of a reward as one of the manners in which this criminal offence can be committed, we leave aside the commission thereof by requesting a reward (a gift or other benefit) hereinafter.
[33] The second, third, and fourth paragraphs of Article 269 CC read as follows:
"(2) Whoever exploits his or her position or influence and intervenes with the intent that an official act that should not have been performed is performed, or that an official act that should or could have been performed is not performed, shall be subject to the same punishment as under the preceding paragraph.
(3) A perpetrator who accepts a reward, a gift, or any other benefit for him- or herself or for another, for the intervention referred to in the preceding paragraph shall be sentenced to imprisonment of one to five years.
(4) The reward, gift, or other benefit received shall be confiscated."
[34] Baucon speaks of criminal offences of encounter [derived from the German concept of Begegnungsdelikte]; see P. Baucon, Korupcijska kazniva dejanja zoper uradno dolžnost in javna pooblastila [Criminal Offences of Corruption against Official Duties and Public Authorisations], Pravosodni bilten, No. 1 (2006), p. 63.
[35] See pp. 55–57 of the reasoning of the Judgment of the court of first instance, Paras. 30 and 31 of the reasoning of the Higher Court Judgment, and Paras. 23–25, 31–37, and 44 of the Supreme Court Judgment.
[36] The statutory elements that were concretised by means of alleged facts are provided in italics.
[37] See Para. 25 of the reasoning of the Supreme Court Judgment.
[38] Cf.  also Decision of the German Federal Constitutional Court Nos. 2 BvR 2559/08, 2 BvR 105/09, 2 BvR 491/09, dated 23 June 2010.
[39] Cf.  Decision of the Constitutional Court No. U-I-65/05, dated 29 September 2005 (Official Gazette RS, No. 92/05, and OdlUS XIV, 72).
[40] Cf.  Decision of the Constitutional Court No. U-I-92/96, dated 21 March 2002 (Official Gazette RS, No. 32/02, and OdlUS XI, 45).
[41] Cf.  Decision of the Constitutional Court No. Up-365/05, dated 6 July 2006 (Official Gazette RS, No. 76/06, and OdlUS XV, 93).
[42] Cf.  the ECtHR Judgment in Saraiva de Carvalho v. Portugal, dated 22 April 1994, Para. 33.
[43] Cf.  the ECtHR Judgment in De Cubber v. Belgium, dated 26 October 1984.
[44] Such concerns the requirement best illustrated by the English proverb: "Justice must not only be done, it must be seen to be done." Adapted from A. Galič, Ustavno civilno procesno pravo [Constitutional Civil Procedural Law], GV Založba, Ljubljana 2004, p. 413. See also L. E. Pettiti (Ed.), La convention des droits de l'homme – commentaire article par article, Second Edition, Economica, Paris 1999, pp. 260–261.
[45] Cf.  the ECtHR Judgment in Coëme and Others v. Belgium, dated 22 June 2000, Para. 121.
[46] These positions of the ECtHR are also expressly included in Švarc and Kavnik v. Slovenia, dated 8 February 2007.
[47] See Article 39 of the Criminal Procedure Act (Official Gazette RS, Nos. 32/12 – official consolidated text, 47/13, and 87/14), which determines when, due to certain objective or subjective circumstances, a judge cannot be deemed to be impartial in a given case and therefore he or she has to be disqualified from performing the duties of a judge in that case.
[48] Cf.  Para. 7 of the reasoning of Decision of the Constitutional Court No. U-I-149/99, dated 3 April 2003 (Official Gazette RS, No. 44/03, and OdlUS XII, 25).
 
 
 
 
Up-879/14-36
Up-883/14-37
Up-889/14-34                                                    
22 April 2015
 
 
Concurring Opinion of Judge Dr Jadranka Sovdat,
Joined by Judge Mag. Miroslav Mozetič
 
 
I.
 
1. As the constitutional law consideration of the alleged violation of the first paragraph of Article 28 of the Constitution is in principle the same in all three Decisions by which the complainants' constitutional complaints were decided on, I am writing a common separate opinion to all three Decisions. It is, however, clear that the cases differ to a certain extent. Insofar as those differences are important (also from the perspective of constitutional law), I believe that such has been appropriately considered by the individual Decisions. I agree with the operative provisions as well as the reasoning of the Decisions. In this separate opinion I only wish to additionally clarify some of the arguments applied [by the Decisions] and thereby show that in the process of their drafting and the formulation of the constitutional law arguments substantiating the adopted Decisions also such arguments had been considered that could have led to different conclusions, however, in my opinion, they were justly outweighed by the selected constitutional law arguments. In order to ensure greater clarity, I am in principle writing a separate opinion to Decision No. Up-889/14, in which I was the judge rapporteur. However, it equally applies to the other two Decisions, even though I do not repeat such hereinafter, as from a reading of the Decisions[1] it clearly follows in which part they are comparable and in which part they are different.
 
 
II
 
2. Up to the present, the Constitutional Court has encountered alleged violations of the right determined by the first paragraph of Article 28 of the Constitution on a few occasions. It has already adopted certain positions with regard to the content of that right, performed certain assessments, and adopted some positions, with regard to which in some cases they were merely stated without being accompanied by constitutional law arguments in support thereof. In my opinion, all of this is sufficiently elaborated in the reasoning of the Decision. The majority of the more important hitherto positions referred to the review of the constitutionality of statutory provisions of substantive law, while fewer were adopted in constitutional complaint proceedings, whereby the proceedings in connection with such alleged violations most frequently ended with a rejection of their acceptance for consideration on the merits. The present Decision confirms the adopted positions and provides constitutional law arguments in support thereof. I believe that only a few points have to be additionally emphasised with regard to this argumentation.
 
3. The complainants also directed their allegations against the acts of indictment, which, however, cannot be the subject of a constitutional review by the Constitutional Court. I agree with the arguments set out in Paragraph 14 (19, 17) of the reasoning of the Decision. However, I would like to emphasise that it can by no means be understood as meaning that when exercising their function state prosecutors do not have to respect the Constitution. They are under an obligation to respect it directly on the basis of the Constitution. In a state governed by the rule of law (Article 2 of the Constitution), the Constitution is a mandatory source of law for every state authority and every bearer of power within that state authority, thus also including state prosecutors, who perform their work within the system of state prosecutors' offices. In addition, in accordance with the first paragraph of Article 15 of the Constitution, human rights and fundamental freedoms are exercised directly on the basis of the Constitution. The situation is only different when their nature is such that their exercise requires statutory regulation (the second paragraph of Article 15 of the Constitution). In such cases, state prosecutors are naturally bound by the Constitution by means of such statutory regulation. In any event, the exercise of the office of a state prosecutor in its entirety has to be based on law (the fourth paragraph of Article 153 of the Constitution). It falls within the competence of an independent criminal court to review whether state prosecutors have acted in accordance with the Constitution, whether in preparing acts of indictment, on the basis of which criminal proceedings against an individual are initiated, they have namely also respected (the law and) all of the individual's human rights and fundamental freedoms and in that framework also the constitutional law safeguard stemming from the first paragraph of Article 28 of the Constitution, as such is their constitutional duty. It is a competence of that court to review the act of indictment from such perspective, and it is in its competence to decide whether the charges against an individual are substantiated. All of this is constitutionally guaranteed also as the defendant's right to judicial protection against acts of a state prosecutor (the first paragraph of Article 23 of the Constitution, which expressly refers not only to rights and duties but to charges as well). As the Constitutional Court has stressed on numerous occasions, on the basis of Article 125 and the first paragraph of Article 15 of the Constitution also the courts have to apply the Constitution directly and protect human rights and fundamental freedoms. Therefore, it is completely clear that through their decision-making they have to "sanction" potential violations of human rights or fundamental freedoms that could be caused by a state prosecutor's act of indictment. In such cases, the court decision is the individual legal act by which the court decides on the (criminal) charges against an individual and by which, in the words of the first paragraph of Article 28 of the Constitution, he or she can be "punished for an act". Consequently, also from the perspective of the cited constitutional provision only a court decision can be the subject of a constitutional law review before the Constitutional Court.
 
4. From the perspective of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text, and 109/12 – hereinafter referred to as the CCA), which regulates the procedure before the Constitutional Court, we arrive at the same result. The first paragraph of Article 50 of the CCA determines what the subject of review in a constitutional complaint can be. Even though it does not expressly specify that also individual acts by which charges against an individual are decided on can be challenged by a constitutional complaint, such is self-evident. Otherwise, the legislature would have excluded constitutional complaints against criminal judgments (which would constitute a restriction of the sixth indent of the first paragraph of Article 160 of the Constitution), while court decisions in all other instances when courts decide on an individual's rights, obligations, or legal benefits could be a subject of review in proceedings before the Constitutional Court. Such would be an absurd interpretation of the first paragraph of Article 50 of the CCA. Therefore, (also) criminal judgments (court decisions) can be a subject of review in a constitutional complaint, which hitherto has never been disputed. However, a state prosecutor's act of indictment can certainly not be deemed to constitute an act in accordance with the first paragraph of Article 50 of the CCA. Namely, by means of such, charges are brought, but (as has long been established, since the establishment of the independent judicial power) the charges against the individual are not yet decided on, as only an independent criminal court may decide thereon.  
 
 
III
 
5. The next issue that requires additional clarification is the position that the question of the relationship between the operative provisions and the reasoning of a judgment and what belongs in the operative provisions and what in the reasoning of a judgment is not relevant to constitutional law, but a question of the correct interpretation of the law regulating the criminal procedure. The regular courts or the highest regular court have the last word regarding the interpretation of laws, unless it reaches the level of constitutional law (the first paragraph of Article 127 of the Constitution). A glance into history and across the borders of our state shows that the differentiation between what is to be included in the operative provisions and what belongs in the reasoning of a judgment in the law regulating the criminal procedure that is currently in force is evidently a consequence of the fact that in the past our territory belonged to the Austrian Empire. Also the current Austrian regulation of criminal procedure[2] is (still) the same as in our state. Even if we only take a look at German or French judgments, to remain on the Continent, it soon becomes clear that such a regulation is unknown to them, as the part of the judgment that, when compared to our system, would be called the operative provisions only contains a statement that a certain person is the perpetrator of a specific criminal offence for which a specific sentence is imposed on him or her.[3] Everything that constitutes "the description of the criminal offence in the operative provisions" in our system is included in the reasoning of the judgment.[4] The comparative legal argument as such, of course, tells us nothing of constitutional law relevance. It only tells us that in some other countries the same statutory regulation of this issue as ours is in force, while others regulate it differently. Therefore, it also has to be examined from a constitutional perspective.
 
6. The Constitution does not expressly regulate this question. If the Constitutional Court elevated the statutory regulation of the relationship between the operative provisions and the reasoning of a judgment in criminal proceedings that is currently in force to a constitutional level, such would entail that in the future any other statutory regulation would be unconstitutional – such would be an obstacle to the legislature introducing, e.g., a statutory regulation following the German or French model. From the perspective of the scope of the freedom of the legislative power, such is anything but irrelevant. In accordance with the principle of the separation of powers (the second sentence of the second paragraph of Article 3 of the Constitution), the legislature is that power that regulates social relations with legally binding effects, and in accordance with the system of checks and balances between the equal branches of power, it is the Constitutional Court that determines the legislature's constitutional boundaries and that sanctions [i.e. penalises] its actions by abrogating a law if those boundaries are overstepped. It can only set its constitutional boundaries on the basis of (the interpretation of) the Constitution. In my opinion, the Constitution does not contain a basis that would require that the structure of the criminal judgment be regulated in one or another manner. If the Constitutional Court has no basis in the Constitution for setting constitutional limits on the legislature with regard to the statutory regulation of an issue, but nevertheless acted in such a manner, it would thereby act in contradiction to the principle of the separation of powers. I do not understand the position of the esteemed academician Prof. Dr Marijan Pavčnik, who stated that "[i]n criminal cases, the legally relevant facts of the case and the statutory definition of the criminal offence have to be included already in the operative part of the act of indictment and subsequently also in the operative provisions of the judgment. From the perspective of their meaning, the operative provisions and the reasoning are a whole, but such does not entail that the content of the operative provisions may be transferred into the reasoning (…)"[5], as a line of constitutional law arguments that would dictate such. In my opinion, it remains at the level of the statutory regulation. It is possible that the Supreme Court erred in interpreting it in the manner it did. However, in light of what has been stated above, such is not a matter for constitutional review. In this regard, also the finality of judgments is not constitutionally relevant.[6] In legal theory, the question of whether finality extends (only) to the operative provisions of a court decision[7] is a welcome subject of legal scholars' speculations, and not only in the area of criminal procedural law.[8] Not only is there no explicit constitutional regulation of the finality of operative provisions or the limits of finality in this respect, there is also no explicit statutory regulation of such.
 
7. In the light of all of the above with regard to the question of whether the delineation of the operative provisions and the reasoning of a judgment constitutes a constitutional law issue, I would like to apply the elegantly phrased warning that Uroš Ferjan, an advisor to the Constitutional Court, formulated during the internal constitutional law discussions of the cases, which in my opinion exposes the essence of what has been said: the Constitutional Court has to be careful not to turn the requirement that laws be interpreted in accordance with the Constitution into "the requirement that the Constitution be interpreted in accordance with laws". 
 
 
IV
 
8. The most important issue that deserves additional clarification and further illustration is the question of the limits of the constitutional review of a criminal judgment as they follow from the first paragraph of Article 28 of the Constitution. Those limits simultaneously establish the constitutional law criteria that courts have to observe in order to avoid violating the constitutional principle of legality in criminal law. An outline of the scope of the review is provided already in the general part of the reasoning regarding the content of that constitutional provision and the requirements stemming from it that is contained in part B – I of the reasoning of the Decision (such equally applies to all three Decisions). The scope of the review may only originate in the constitutionally determined relationship between the (regular) courts and the Constitutional Court. Over more than twenty years of deciding on constitutional complaints, the approach highlighted in Paragraph 13 (18, 16) of the reasoning of the Decision has undoubtedly become settled. The situation can be no different as far as the supervision excercised by the Constitutional Court over observance of the principle of legality in criminal law is concerned. The Constitutional Court can supervise the constitutional consistency of the interpretation of criminal substantive law from the perspective of all of the requirements stemming from this principle, which were presented in further detail in the Decision. We usually formulate a view regarding the constitutional level of an interpretation of statutory provisions (which by themselves are not unconstitutional) in a judgment with the help of the following approach: if [in a statutory provision] the legislature adopted the same position as the position that follows from the judgment at issue, would the Constitutional Court abrogate such a statutory provision due to its inconsistency with a human right – if such is the case, there also exists a violation of that human right by the judgment. However, even though we eventually arrive at such a conclusion, when deciding on a constitutional complaint the Constitutional Court is not in exactly the same position as when reviewing the constitutionality of a law. With regard to the latter, the minor and major premises of a constitutional review are always regulations – e.g. a law or the Constitution or the provisions they contain that have to be interpreted. The situation with regard to constitutional complaints is different. The subject of the review is a judgment. The legally relevant facts of a concrete case constitute the minor premise of a court's decision-making, while only the major premise is the statutory definition of the criminal offence that is extracted from a statutory provision through interpretation. As the Constitutional Court is not a trier of fact (judex facti), the question quickly arises as to how far it may go in its review when monitoring the constitutional consistency of the interpretation of the major premise of the adjudication. Should it completely exclude facts from its review and, if such is not possible, how far-reaching are its authorisations to review the constitutionality of the adjudication with regard to facts?
 
9. The answer to this question in the present Decisions is in reality no different than in decisions on constitutional complaints in general. The Constitutional Court is bound by the state of the facts as it was established by a court in its judgment. To date, the Constitutional Court in fact has only descended to the level of the state of the facts as an exception, and did so only in the framework of Article 22 of the Constitution when in addition to manifestly erroneous interpretations of laws it also allowed [constitutional complaints alleging] manifestly erroneous findings of fact that had decisively affected a procedural right.[9] However, the Constitutional Court has consistently held that a review of the correctness of the established state of the facts, including the free assessment of evidence, is not a matter of constitutional review (unless it falls within the scope of Article 22 of the Constitution). Consequently, it could also review a potential violation of the in dubio pro reo principle in criminal proceedings only from the perspective of Article 22 of the Constitution, thereby descending entirely to the level of the factual – the level of the assessment of evidence, of course only if there exists a manifest error.[10] From the perspective of the first paragraph of Article 28 of the Constitution, anything similar is not even an option.
 
10. The answer to the question of where the limits of the constitutional review lie is in fact obtained together with the answer to the question of what requirements for the Constitutional Court stem from the constitutional substantive safeguard that is being discussed; firstly in general (part B – I of the reasoning of the Decisions), and subsequently as applied to the criminal offences and constitutional law questions that we were facing (part B – II of the reasoning of the Decisions). Such does not entail that the Constitutional Court would be lecturing the courts on the ABCs of legal argumentation that provides the tools for judicial decision-making. Nowadays these are well known to all thanks to the fundamental works of the academician Prof. Dr Pavčnik. They simply have to be applied if we wish to perform judicial work lege artis.  In the present case, the Constitutional Court applied them to clarify what observance of the principle of legality in the interpretation of criminal substantive law concretely entails and how the Constitutional Court is going to supervise it. Before I confirm the answer that the Decision(s) provided to that question, I would like to devote some further attention to two previous decisions that may be very useful in illustrating in a simplified manner what is at issue.
 
11. The first example comes from the period of the first years following the state's independence when, before the introduction of the tolar as the Slovene currency, scrips were in circulation. The complainant was convicted of the criminal offence of counterfeiting money for counterfeiting scrips. In his constitutional complaint, he invoked a violation of the first paragraph of Article 28 of the Constitution, as allegedly by deeming that the scrips constituted money the court inadmissibly extended the scope of criminal liability. By Decision No. Up-40/94, dated 3 November 1995 (OdlUS IV, 136), the Constitutional Court decided that there had been no violation (let us disregard the question of whether the decision could also have been different[11]). That the pieces of paper produced by the complainant were scrips and not banknotes that are a form of money was a fact established in the court proceedings. The Constitutional Court did not assess whether that fact had been established correctly. It reviewed the court's position that the scrip as a legally relevant fact extracted from the concrete case (according to the statutory element, the subject of counterfeiting was money, and according to the established state of the facts, the subject of the counterfeiting was a scrip – the established subject of the counterfeiting is a relevant fact) corresponded to the statutory element money. Money, in turn, had to be interpreted in light of what it represented in the economic and legal system of the state; in accordance with the constitutional requirements stemming from the principle of legality in criminal law, naturally strictly. Thereby the Constitutional Court in fact reviewed the observance of the principles of lex certa (was the courts' interpretation too loose with regard to the defined statutory element), lex scripta (did the court, by deeming that not only banknotes but also scrips constitute paper money, include something in the field of criminal liability for this criminal offence that had not been included by the legislature), and lex stricta (did the court with its interpretation in reality apply analogy to establish that (also) a scrip constitutes money).
 
12. The second case in which the Constitutional Court established a violation of the first paragraph of Article 28 of the Constitution (Decision No. Up-265/01, dated 26 October 2001, Official Gazette RS, No. 88/01, and OdlUS X, 228) provides an equally apt illustration. It concerned the criminal offence of unauthorised crossing of the state border. The regular court established that no crossing of the border had occurred, but nevertheless deemed that there existed reasonable suspicion that the criminal offence, of which the crossing of the border was (also) a statutory element, had been committed. Again, the Constitutional Court did not consider the question of whether the border had been crossed or not – such had been established by the court. The Constitutional Court only reviewed whether that legally relevant fact of the case at issue, corresponded to the statutory element of crossing the border of the criminal offence at issue, and found that it did not. With such a broad (even absurd) interpretation of the term crossing the border the court failed to include in the description of the decisive facts the statutory element of crossing the border, and at the same time it ventured into the legislature's field as it included in the scope of criminal liability also something that the legislature had completely clearly left outside of the scope of liability.
 
13. What do these two cases tell us? The Constitutional Court does not engage in an assessment of whether the court correctly established the state of the facts. It does not assess whether the court correctly extracted from all of the established facts of the real life case that happened as a past event the relevant facts that are to be compared with the appropriate statutory element of the statutory definition of the criminal offence. The Constitutional Court only verifies if the court interpreted a statutory element of the criminal offence – e.g. "money" – in accordance with the requirements of the principle of legality when through its interpretation it included in that term also the extracted legally relevant fact of the concrete case – e.g. "a scrip". The Constitutional Court certainly assesses such an interpretation only from the constitutional perspectives that are precisely described in its decision, as otherwise it could not ensure the respect for that human right in individual criminal proceedings. However, it conducts such assessment as the last court, and not as the first. In order to interpret the law in accordance with the Constitution, which is its constitutional duty, the criminal court must already itself include that part of the assessment in its adjudication. The criminal court of first instance is thus the first[12] court that has to conduct that assessment. The courts that decide on the legal remedies against the criminal judgment have to verify whether the assessment was performed correctly. In accordance with the constitutional (the third paragraph of Article 160 of the Constitution) and statutory (Article 51 of the CCA) conditions with regard to the exhaustion of legal remedies, only following such is it the turn of the Constitutional Court. In order for the Constitutional Court to be able to verify if in a criminal conviction the court observed the requirements of the principle of legality, it is thus necessary that we know first of all what facts the court extracted as the legally relevant facts of the concrete case, individually with regard to each statutory element of the criminal offence. Unless we know and until we know whether we are dealing with a "scrip", "banknote", "ticket or receipt", or something else – i.e. the extracted subject of counterfeiting as the relevant fact – we cannot conduct a review from the perspective of the statutory element of the criminal offence at issue, i.e. "money", which has to be interpreted in accordance with the lex scripta, lex certa, and lex stricta requirements. If a court does not keep such in mind, there might occur a violation of the first paragraph of Article 28 of the Constitution, which the court is bound to observe in accordance with a constitutionally consistent interpretation of the law.
 
14. Certainly, such is not particularly difficult when what we have before us is a case that can be said to be a textbook example, as we are speaking of something tangible that is always detectable in the external world and undoubtedly expressed in the physical form of an object – as applies to a banknote or a scrip (in a precisely defined form). However, in principle the situation must not be any different if we are faced with an essentially different term, such as the acceptance (of the promise of a reward) or the promise (of a reward). Those two elements are, just like money, objective statutory elements of criminal offences. If we allowed it to be different, i.e. that a different position was adopted due to the complexity and difficulties in identifying the legally relevant fact(s) of a concrete case that correspond to those two statutory elements of criminal offences, such would entail unequal treatment with regard to a human right. In my opinion, such would be inadmissible.
 
15. What kind of different position do I have in mind? Different in that in light of the nature of that statutory element and in particular because, as a general rule, the acceptance (of the promise of a reward)[13] will not be directly detected, we would have adopted the position that the realisation of that statutory element would fall only and exclusively in the scope of the review of the correctness of the established facts and the correctness of the assesment of evidence – namely in its entirety outside the scope of the review from the perspective of the first paragraph of Article 28 of the Constitution. Thus, from the perspective of that constitutional safeguard, the position of the Supreme Court, which in reply to an objection stated that it suffices if a statutory element is concretised in the reasoning, but failed to clarify by means of what precisely the acceptance of the promise (as well as the giving of instructions to request its prepayment) and the promise of the reward were concretised, would be undisputable. Also in the case at issue such should have been substantiated lege artis in the reasoning, as it again certainly does not entail an aspect of the first paragraph of Article 28 of the Constitution. If we wanted to adopt such a position in the cases at issue, in my opinion, we could have done so only if we had previously changed our position from the two above-presented Decisions, as in such an event we would have had to change it with regard to all future cases. I am afraid that such a change of position would have entailed that the Constitutional Court would have had to retreat to the position that the subject of review from the perspective of that human right is in fact only the constitutionality of the statutory regulation as such. The manner in which the courts interpreted it in adjudicating would have become (or remained) only a matter of the correct application of substantive law in light of the established state of the facts. I cannot find any arguments in support of such a change of position. On the contrary, it would even go against the clearly presented constitutional law reasons that clarify the content of the requirements stemming from the principle of legality in criminal law in the Decision(s).
 
16. The above, however, does not entail that when conducting a review from the perspective of the first paragraph of Article 28 of the Constitution the Constitutional Court may even reach into the sphere of establishing the facts, the assessment of evidence, the correctness of the extraction of the relevant facts, i.e. the legally relevant facts of the concrete case. Although that part of adjudication is conducted "by looking at the statutory element of the criminal offence and back again",[14] its essence lies only in the establishment of the factual – even if such is peeled down to the level of the legally relevant facts of the concrete case – that is the part that belongs to and has to remain with the judge, who is the trier of fact (judex facti). The Constitutional Court (outside of the few exceptions determined by Article 22 of the Constitution) is not and may not become such, as that would entail disregard for the constitutionally defined relationship between the (regular) courts and the Constitutional Court. Consequently, the latter may not consider that part of adjudication. When that part is concluded, when the result of that part has been finalised – when it becomes clear that what we have in front of us is a "scrip" – then the Constitutional Court reviews whether by including it in the statutory element of "money" the court respected the requirements stemming from the constitutional substantive safeguard. That is the answer to the question of how far towards [establishing] the factual the Constitutional Court may move when monitoring adjudication from the perspective of the first paragraph of Article 28 of the Constitution.
 
17. In the cases at issue, it was established that the courts failed to extract the legally relevant facts of the concrete case that correspond to the element of the acceptance of the promise of a reward or the promise of a reward (even if such was not directly detected, but is derived from other conduct that in accordance with its nature and content and in the circumstances of the case at issue allows the drawing of such a conclusion). They attempted to remedy that deficiency by reasoning based on the concretisation of the other statutory elements, which of course cannot be admissible if it leads to the merging of two or more statutory elements of a criminal offence.[15] When we are faced with such a situation, it becomes clear that the courts did not take into account the above-stated constitutional requirements stemming from the principle of legality in criminal law. However, at the same time, such also entails that that part of their task that pertains only to them (firstly to the court of first instance, whose mistakes can be remedied by the court of second instance) cannot be performed by the Constitutional Court in their stead. That would be precisely what the Constitutional Court would have done if on the basis of all of the facts established by the judgments it extracted the legally relevant facts of the case at issue that constituted the acceptance (of the promise of a reward) or the promise (of a reward) by itself, in order to even be able to conduct a review from the perspective of the human right determined by the first paragraph of Article 28 of the Constitution. It would have descended to the level of the trier of fact (judex facti). From the perspective of that human right, that path is closed. Therefore, also in my opinion, the decision to remand the case for new adjudication is correct, as not only are the conditions determined by the first paragraph of Article 60 of the CCA for the Constitutional Court to decide [cases on the merits] not fulfilled, but such is also subject to constitutional constraints.
 
18. In Paragraph 33 (44, 36) of the reasoning of the Decision the Constitutional Court concisely summarised the task that awaits the court in the new proceedings. As it decided that the case is to be remanded for new adjudication to a different judge, a judge who is not yet acquainted with the case will need a certain amount of time to study the case and that will surely contribute to the length of the new proceedings. Although the Constitutional Court did not dispute the constitutionality of the position of the plenary session of the Supreme Court that the period of limitations of criminal prosecution no longer applies once a judgment becomes final, it is not superfluous to draw attention to the respect for the right to a trial without undue delay determined by the first paragraph of Article 23 of the Constitution (see Decision of the Constitutional Court No. U-I-25/07[16], dated 11 September 2008, Official Gazette RS, No. 89/08, and OdlUS XVII, 48).
 
 
 
                                                                                 Dr Jadranka Sovdat
                                                                                              Judge
                                                
 
* * *
 
I voted for the Decision and I agree with all of its arguments. I further agree with the additional arguments from the concurring opinion of Judge Dr Jadranka Sovdat, which I have joined. I would merely like to add another emphasis:
 
I would particularly like to emphasise how important it is that in exercising their office state prosecutors consistently respect the laws and thereby do not act partially or arbitrarily. What I have in mind is particularly the content of the act of indictment, from which it must clearly follow that the defendant is charged with conduct (acts) that is incriminated by law and that such conduct (acts) of the defendant has to be concretely described (defined).
 
On the other hand, the responsibility of the court (the judge) to assess, as the law obliges it to, already at the beginning of proceedings, whether in formulating the act of indictment on the basis of which the criminal proceedings were initiated the state prosecutor observed the statutory provisions and the Constitution, especially human rights and in particular also the safeguard under the first paragraph of Article 28. The court of first instance is the court that is first and foremost responsible for ensuring that criminal proceedings are not even initiated if the act of indictment that it has before it does not in its entirety pass a review of its constitutionality and legality.
 
In accordance with my deep conviction, such a review is extremely important from the perspective of the protection of everyone's human rights and fundamental freedoms, as follows already from the Preamble of the Constitution. The aim of such is not only to prevent an individual from being convicted, but also from being charged for an act that had not been declared a criminal offence under law. Inconsistent or even discriminatory or arbitrary exercise of that competence opens the door to potential abuses of the system of the administration of justice and consequently also leads to the distrust of the general public in the system of the administration of justice (and the judiciary).
 
 
 
Mag. Miroslav Mozetič
 
 
Endnotes:
[1] Whenever I refer to the text of the reasoning of the Decisions and I have all of the Decisions in mind, the relevant paragraphs of the reasoning of the other two Decisions are stated in brackets, namely, first that of Decision No. Up-879/14 and second that of Decision No. Up-883/14.
[2] In accordance with point 1 of the first paragraph of § 260 of the Austrian Criminal Procedure Act (Strafprozessordnung – hereinafter referred to as the Austrian StPO), the operative provisions of a judgment of conviction also have to include a statement regarding "welcher Tat der Angeklagte schuldig befunden worden ist, und zwar unter ausdrücklicher Bezeichnung der einen bestimmten Strafsatz bedingenden Tatumstände" ("the commission of which criminal offence the defendant was found guilty, namely by expressly stating the circumstances of the act that substantiate the application of a particular provision of criminal law" (translated by V. Božič). The text of the Austrian StPO is accessible at:
[3] See footnote 16 (24, 19) of the reasoning of the Decision. The French Code de procédure pénal thus determines in the third paragraph of Article 485 that the operative provisions (dispositif) of the judgment (jugement) have to include a statement of the criminal offences of which the persons in question were found guilty or responsible for, as well as the penalty, the applied laws, and the potential civil conviction (resulting from a civil claim arising from the criminal offence) ("Le dispositif énonce les infractions dont les personnes citées sont déclarées coupables ou responsables ainsi que la peine, les textes de loi appliqués, et les condamnations civiles."). When the jury court (cour d'assises) is deciding, a special transcript regarding the vote on the individual points of the judgment (arrêt) is prepared. The text of the Code of Criminal Procedure is accessible at:
<http://legifrance.go​uv.fr/affichCode.do;jsessionid=0E51A19E187E813125E9C52E81ED0706.tpdila24v_3?cidTexte=LEGITEXT000006071154&dateTexte=20141209>.
[4] In accordance with the fourth paragraph of § 260 of the German Strafprozeßordnung (StPO), similarly, only the legal description of the act is included in the operative provisions, while in accordance with the first paragraph of § 267 of this Act, the reasoning has to contain the facts that the court deemed to have been proven and in which the elements of the criminal offence have been identified. The text of the Act is accessible at: <http://www.gesetze-i​m-internet.de/stpo/>.
[5] See M. Pavčnik, Predpraznični dnevnik, Prvi del: od 24. novembra do 7. decembra 2014 [The Pre-Holiday Journal, Part One: from 24 November to 7 December 2014], Pravna praksa, No. 48 (2014), p. 28.
[6] From a comparative law perspective, in spite of the different regulation, the same positions regarding the finality of the operative provisions of a judgment can be found in German criminal law doctrine and in Slovene. When considering the finality of a judgment (Die Rechtskraft des Urteils), with regard to substantive finality Beulke stated the following: "The finality only encompasses the operative provisions, and not also the reasoning." (Translated by M. Hren), see W. Beulke, Strafprozessrecht [Criminal Procedural Law], 12th Edition, C. F. Müller, Munich 2012, p. 341; similarly also Laubenthal and Nestler: "Only the operative provisions of a judgment, and not its reasoning, become final." (Translated by M. Hren), see K. Laubenthal, N. Nestler, Strafvollstreckung [Execution of Criminal Penalties], Springer, Berlin, Heidelberg 2010, p. 8.
[7] The academician Prof. Dr Pavčnik added the following to the cited part: "Let us not forget that finality extends to the operative provisions." M. Pavčnik, op. cit., p. 28. 
[8] Particularly numerous debates have been held in the area of civil procedural law, wherein the former President of the Constitutional Court wrote extensively on these questions; see, e.g., D. Wedam-Lukić in: L. Ude, A. Galič (Eds.), Pravdni postopek: zakon s komentarjem, 3. knjiga [The Civil Procedure: The Act with Commentary, Book 3], Uradni list Republike Slovenije, GV Založba, Ljubljana 2009, esp. pp. 156–166. After stating that the operative provisions become final, with reference to Triva and Dika, she inter alia stated the following: "Nevertheless, the reasoning 'participates' in the finality of the operative provisions insofar as such is necessary for the identification of the content of the decision."; ibidem, p. 156.
[9] See Decision No. Up-347/96, dated 13 October 1999 (OdlUS VIII, 296), to be precise, the position that the erroneous finding of who had been the complainant's lawyer at the time the denationalisation decision was served entails the establishment of a fact that decisively affects the procedural position of the parties.
[10] The Constitutional Court clarified that term in Order No. Up-62/96, dated 11 April 1996 (OdlUS V, 68).
[11] See the Dissenting Opinion to the Decision of Judge Boštjan M. Zupančič.
[12] And of course, prior to that, the state prosecutor (and before that the police), but the Constitutional Court does not review such.
[13] The same is naturally true as regards the promise of a reward.
[14] See M. Pavčnik, Argumentacija v pravu (Od življenjskega primera do pravne odločitve) [Legal Argumentation (From the Real Life Event to the Legal Decision)], Cankarjeva založba, Ljubljana 2002, pp. 106–108.
[15] See Para. 30 (40, 33) of the reasoning of the Decision.
[16] Thereby the Constitutional Court decided on the constitutionality of the statutory regulation in instances of new adjudication in criminal proceedings in which a final judgment was abrogated in a procedure with extraordinary legal remedies.
 
 
Up-879/14-37
Up-883/14-38
Up-889/14-35                                         
22 April 2015
 
 
Concurring Opinion of Judge Dr Mitja Deisinger
 
With this concurring opinion I wish to emphasise the importance of the unanimously adopted Decisions of the Constitutional Court as precedents regarding the principle of legality in criminal law (the first paragraph of Article 28 of the Constitution) and the significance of the abrogation of the judgments from the perspective of adjudicating in the new proceedings.
 
1. By the Decisions in question, the Constitutional Court held that the courts, from the Ljubljana Local Court to the Ljubljana Higher Court and the Supreme Court, violated the first paragraph of Article 28 of the Constitution and in violation of a human right convicted Janez Janša, Ivan Črnkovič, and Anton Krkovič. All three judgments of those courts were abrogated. Such entails that Janez Janša, Ivan Črnkovič, and Anton Krkovič thereby became innocent (the presumption of innocence in accordance with Article 27 of the Constitution).
 
2. Along with the abrogation of the judgments, I also proposed that all of the constitutional complainants be acquitted of the charges, but the proposal did not gain the support of the majority. The decision is thus left to the court of first instance, which will have to take into account the reasons of the Constitutional Court decisions, and due to the violation of the first paragraph of Article 28 of the Constitution, or in other words the finding that the statutory elements of the acts of commission were not concretised in the descriptions of the offences, reject the act of indictment or acquit the constitutional complainants.
 
3. The precedential significance of the mentioned Decisions that exceeds the meaning of the consideration of the individual cases lies in the consistent observance of the constitutional principle of legality in criminal law, which is determined as a human right by the constitutional provision of the first paragraph of Article 28 of the Constitution. It entails that in our country no one can be convicted for an act unless the concretised statutory elements of a criminal offence follow therefrom. In accordance with the third paragraph of Article 1 of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text, and 109/12), Constitutional Court decisions are binding. Such applies to the new proceedings in the cases at issue, namely as regards the court as well as the state prosecutor's office. In cases that are essentially the same, such applies also with regard to all other criminal proceedings.
 
4. By the Decisions the Constitutional Court held that the abstract elements of the criminal offences under the first paragraph of Article 269 and the first paragraph of Article 269a of the Criminal Code (Official Gazette RS, No. 95/04 – official consolidated text – hereinafter referred to as the CC), i.e. "accepts the promise of a reward" and "promises a reward", respectively, as acts of commission and therefore necessary and decisive elements of those criminal offences, were not concretised at all in the descriptions of the criminal offences in the operative provisions, but they were merely stated or reiterated in general terms. The courts further failed to concretise the abstract elements of the criminal offences in the reasoning of the challenged judgments. The Constitutional Court thus rightly qualified such a failure to concretise the abstract elements of the criminal offences as a violation of the right determined by the first paragraph of Article 28 of the Constitution. Such a violation of the principle of legality simultaneously also entails a violation of Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR).
 
5. In its review of the constitutionality of the challenged judgments, the Constitutional Court could not consider the issue of the regulation of the structure of a criminal judgment of conviction as such is a question of the correct interpretation of criminal procedural law and thus a matter for the competent [regular] court. In the new proceedings the court of first instance, as well as the state prosecutor's office, will thus have to consistently respect statutory law, namely the provisions of the CC and the Criminal Procedure Act (Official Gazette RS, Nos. 32/12 – official consolidated text, 47/13, and 87/14 – hereinafter referred to as the CrPA), as well as the requirements stemming from the first paragraph of Article 28 of the Constitution.
 
6. The Constitutional Court returned the cases of all three constitutional complainants to the court of first instance for new adjudication and assignment to a new judge. The challenged judgments no longer exist, the cases have been remanded for new adjudication, whereby the previously lodged act of indictment remains their foundation. Such entails that the lodged act of indictment of the Office of the Supreme State Prosecutor of the Republic of Slovenia No. Ktr 169/10, dated 6 August 2010, corrected on 10 August 2010, amended on 30 January 2011, 17 December 2012, and 27 February 2013, and corrected on 5 March 2013, is once again to be assessed in the summary proceedings before the Ljubljana Local Court. In accordance with the first paragraph of Article 437 of the CrPA, the judge's assessment will contain a finding as to whether there exists any reason why the procedure should be stayed. In that assessment the first instance judge will have to take into account the reasons of the Decisions of the Constitutional Court by which the judgments were abrogated due to a violation of the complainant's human right determined by the first paragraph of Article 28 of the Constitution and assess whether the operative part of the act of indictment contains the concretised elements of the criminal offences. The reasons for staying proceedings are determined by Article 277 of the CrPA. If the operative part of the act of indictment does not contain the concretised elements of the criminal offence, there exists a legal basis to stay the criminal proceedings in accordance with point 1 of the first paragraph of Article 277 in conjunction with the first paragraph of Article 437 of the CrPA. 
 
7. In assessing the operative part of the act of indictment, the judge will have to establish whether, in light of the reasons of the Decisions of the Constitutional Court, the description of the criminal offence in the act of indictment, which has to be the same in both summary and regular proceedings, satisfies all of the requirements stemming from point 2 of the first paragraph of Article 269 in conjunction with the first paragraph of Article 434 of the CrPA, namely if it contains the concrete statutory elements of the criminal offence.[1] In that assessment he or she will not be able to avoid the finding that the description of the act does not contain the concretised abstract statutory elements of the acts of commission, that, furthermore, the time and place of the commission of the criminal offences are not stated[2], that point I of the operative provisions also does not contain a description of complicity, which is also conceptually impossible, and that there exists an unlawful contradiction as to the descriptions of the acts under points II and III of the operative part of the act of indictment. Above all, it is not possible to reiterate an abstract element of a criminal offence also as a concrete element of that same criminal offence. The subsumption of the abstract under the abstract entails a logical paradox as the same cannot be subsumed under the same, but they have to be equated (a tautology) and a syllogism simply is not a tautology.[3]
 
8. In the event that the main hearing is called immediately, following the reading of the act of indictment and the conclusion of the main hearing in accordance with the first paragraph of Article 443 of the CrPA, the judgment could be delivered and proclaimed immediately and without interruption in accordance with the second paragraph of the same Article of the CrPA. However, also in such a case the judge would firstly be obliged to assess the description of the acts in the operative part of the act of indictment on the basis of which the new proceedings were initiated. Due to the same reasons that were mentioned in the preceding paragraph of my Opinion and that are based on the reasoning of the Decisions of the Constitutional Court, the judge would only be able to establish that the conduct of the constitutional complainant, as included in the description of the acts, does not contain the concretised elements of the alleged criminal offences. The only possibility that follows from such a legal conclusion is the delivery of a judgment of acquittal in accordance with point 1 of Article 358 of the CrPA.
 
9. With the exception of the abrogated judgment in the case at issue, the case law of the Supreme Court also followed the correct position that non-concretised statutory elements require the defendant's acquittal. Such is, for example, evident from the Supreme Court Judgments of acquittal No. I Ips 25465/2011, dated 20 February 2014 (due to an inadequate description of the desecration of a grave), and No. I Ips 22697/2011, dated 29 May 2014 (the description did not contain a concretisation of the allegation of what [information] from the personal life of the private prosecutor the convicted person was allegedly distributing or claiming). By Judgment No. I Ips 153/2012, dated 1 March 2012, [the Supreme Court] acquitted the defendant, who had been convicted of the criminal offence under Articles 13 and 14 of the Regulation of Military Courts and sentenced to death by hanging, loss of all political and civil rights, and the confiscation of his entire movable and immovable property. It acquitted him as a result of the allegation contained in the description of the act in the operative provisions of the judgment that on an undetermined day he had committed the criminal offence of a war crime against unidentified persons and in an unspecified way. Even with regard to post-war proceedings, the Supreme Court thus required the standard determined by the current procedural laws, however it disregarded such in the judgment abrogated in the case at issue. Even with regard to minor offences the Supreme Court requires a concrete description of the act in the operative provisions of decisions, as otherwise proceedings are stayed (Decisions No. IV Ips 94/2014, No. IV Ips 47/2013, No. IV Ips 121/2012, No. IV Ips 73/2012, No. IV Ips 22/2012, No. IV Ips 21/2012, and numerous others). 
 
10. With regard to the new proceedings, the Decisions of the Constitutional Court only refer to the decision of the first instance judge, however the precedential position determined by the Decisions indirectly also applies to the state prosecutor. As in any criminal proceedings, the decision whether to insist on the lodged act of indictment or to withdraw such lies in his or her independent competence. Neither the state prosecutor nor the court may interfere with the description of the acts contained in the act of indictment because they are bound by the strict and explicit prohibition of reformatio in peius, i.e. no amendment that would worsen the position of the constitutional complainants is possible. [A violation of] the prohibition of reformatio in peius is an essential violation of criminal procedure and applies to all stages of proceedings (see Articles 371, 385, 397, 415, 424, 428, and 429 of the CrPA). Such a prohibition also entails the conscious denial of the principle of material truth because such entails the establishment of a less favourable state of the facts and therefore a worsening of the defendant's positions.[4] From such it follows that only new evidence that is favourable to the defendant is possible. Consequently, the court will, inter alia, have to take into account the evidence contained in "the report of Pieter Westerhof", which the state prosecutor did not present, decide on the search of the office located at the address Brodišče 5 in Trzin, which was conducted without a court order, and the searches conducted in Finland on the basis of police measures. Such an interpretation is consistent with the purpose of the institution of the prohibition of reformatio in peius and is also accepted by recent case law.[5] The Constitutional Court deemed that the prohibition of amending a decision to the detriment [of the defendant], i.e. the prohibition of reformatio in peius, is a part of the concept of a fair trial in criminal proceedings from the perspective of Article 23 and the first paragraph of Article 29 of the Constitution.[6]
 
11. The case at issue further raises the question of whether the criminal prosecution will become time-barred during the new proceedings. It follows from Decision of the Constitutional Court No. U-I-25/07, dated 11 September 2008 (Official Gazette RS, No. 89/08, and OdlUS XVII, 48), that the CrPA is inconsistent [with the Constitution] because it does not determine a time limit in which the new proceedings have to be concluded. At the same time, the Constitutional Court determined the manner of implementation of that Decision by determining that until the entry into force of the [new] Criminal Code (Official Gazette RS, No. 55/08 and 66/08 – corr. – hereinafter referred to as the CC-1), the new proceedings have to be concluded no later than within two years following the abrogation of a final judgment. The new CC-1 has been in force since 1 November 2008 and on that date the mentioned manner of implementation, which was transitional, ceased to have effect. The second paragraph of Article 91 of the CC-1 precisely determines the conditions for the beginning of the limitation periods and when prosecution becomes time-barred in the event of the abrogation of a final judgment. That limitation period can only be applied in the new adjudication within the framework of procedures with extraordinary legal remedies before the regular courts, namely in the procedure for the protection of legality before the Supreme Court when that court abrogates a final judgment due to essential violations of criminal procedure or violations that affected the legality of the judicial decision and remands the case for new adjudication. If it establishes a violation of substantive criminal law (such as a violation of the principle of legality that is reviewed as a violation of Article 28 of the Constitution by the Constitutional Court), the Supreme Court cannot abrogate a final judgment, but has to amend it by itself by a judgment of acquittal. Therefore, in the case at issue, the abrogation of the final judgments due to a substantive constitutional violation of the first paragraph of Article 28 of the Constitution cannot serve as a legal basis for the application of the second paragraph of Article 91 of the CC-1. The Constitutional Court is further not a court of fourth instance in the case at issue and the constitutional complaint is not an extraordinary legal remedy in accordance with the second paragraph of Article 91 of the CC-1. Thereby attention has to be drawn to the legislature's intent in enacting the two-year limitation period by the second paragraph of Article 91 of the CC-1. In the absence of that provision, no limitation period applied after a final judgment had been abrogated in a procedure for the protection of legality due to procedural violations. In the event of the abrogation of a criminal judgment, even if criminal prosecution had been time barred, the mentioned provision now provides a defendant who has succeeded with his or her request the possibility of rehabilitation in new proceedings and in a reasonable time with regard to limitation periods.
 
12. In addition, in the new proceedings the court may not apply the provisions regarding limitation periods contained in the second paragraph of Article 91 of the CC-1, as these criminal proceedings are conducted regarding criminal offences that are defined in accordance with the CC previously in force (CC – official consolidated text No. 1). The new CC-1 could only be applied if also the legal definition of the criminal offences were changed and defined in accordance with the new CC-1. However, such an amendment of the legal qualification of the criminal offences is only possible in accordance with the condition determined by the second paragraph of Article 3 of the CC and the second paragraph of Article 28 of the Constitution. The new CC-1 is not more lenient with regard to the complainants and therefore it may not be applied. A direct combination of both laws, i.e. the CC and the CC-1, is of course not possible, as the new law can only be applied in its entirety.[7] Nevertheless, the enactment of the limitation period by the new CC-1 indirectly also applies to cases adjudicated under the CC, namely in the sense that in the event of abrogation, at least the limitation period that has not yet expired has to be considered for criminal prosecution in accordance with the rules of the general part of the CC.
 
13. The judge of the court of first instance will thus also have to take into account the rules on limitation periods or the absolute limitation periods in accordance with the sixth paragraph of Article 112 in conjunction with point 4 of the first paragraph of Article 111 of the CC in his or her decisions. Also with regard to the co-defendants in the criminal case at issue, whose cases were considered separately, the absolute limitation period will be taken into account, which, due to the principle of equal rights, will have to apply also to the other constitutional complainants. The time left before the expiry of the absolute limitation period will enable the court to adopt a decision in accordance with the Decisions of the Constitutional Court.
 
Dr Mitja Deisinger
 
 
 
Endnotes:
[1] M. Pavčnik in Pravna praksa, No. 48, 11 December 2014, under the heading "Law and Society": "In criminal cases, the legally relevant facts of the concrete case and the statutory definition of the offence have to be included already in the operative part of the act of indictment and subsequently in the operative provisions of the judgment. Although, from the perspective of their meaning, the operative provisions and the reasoning constitute a whole, such does not entail that the content of the operative provisions may be transferred into the reasoning. Let us not forget that finality extends to the operative provisions."
[2] Š. Horvat, Zakon o kazenskem postopku s komentarjem [The Criminal Procedure Act with Commentary], GV Založba, Ljubljana 2004, p. 600, point 3: "However, it is important that the abstract statutory elements of the criminal offence and those provisions of the general part of the CC regarding criminal offences and criminal liability (Articles 7 through 32 of the CC) that are applied in the act of indictment follow from the concretised description of the defendant's conduct. Without such concretisation of the charges, the defendant is not ensured an effective defence." And ibidem, p. 742, point 7: "The act that a defendant is accused of does not constitute a criminal offence under law if any of the statutory elements of the criminal offence is missing from the description of the act or if in the description of the defendant's conduct those statutory elements are not stated in concrete terms."
[3] J. Zobec in his Dissenting Opinion, dated 16 June 2014, in Case No. Up-373/14 (Official Gazette RS, No. 47/14).
[4] Ž. Zobec, Komentar Zakona o kazenskem postopku s sodno prakso [Commentary on the Criminal Procedure Act with Case Law], Gospodarski vestnik, Ljubljana 1985, p. 781.
[5] Š. Horvat, op. cit., p. 832, point 7.
[6] Decisions of the Constitutional Court No. Up-49/97, dated 29 November 2001 (Official Gazette RS, No. 101/01, and OdlUS X, 232), and No. Up-2442/06, dated 4 December 2008 (Official Gazette RS, No. 119/08, and OdlUS XVII, 95).
[7] I. Bele, Kazenski zakonik s komentarjem, Splošni del [The Criminal Procedure with Commentary, General Part], GV Založba, Ljubljana 2001, p. 41.
Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
Ivan Janez Janša, Velenje
Date of application:
27. 11. 2014
Date of Decision:
20. 4. 2015
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Published:
Official Gazette RS, No. 30/2015
Document:
AN03769

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