Constitutional court case law

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Case number:
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Operative provisions:
Article 29 of the Constitution enumerates the minimum rights of defendants in criminal proceedings, the purpose of which is to ensure a fair trial before an independent and impartial court. According to the second indent of Article 29 of the Constitution, anyone charged with a criminal offence must be guaranteed, in addition to absolute equality, the right to be present at his or her trial and to conduct his or her own defence or to be defended by a legal representative.
The decision on the manner in which a defendant will defend him- or herself, i.e. alone, by means of a counsel, or by both him- or herself with the assistance of a counsel, must be left, as a general rule, to the defendant. The defendant may waive the mentioned right; however, the court cannot deprive him or her of such right by its conduct. If the defendant decides that he or she will defend him- or herself (either alone or with the assistance of a counsel), it is difficult to imagine how he or she could exercise this right without being present. From this perspective, the right to defend oneself is necessarily tied to the presence of the defendant.
The right determined by the second indent of Article 29 of the Constitution is not limited to merely the phase of adjudication before the court of first instance, but it applies to the entire criminal proceedings and thus also to proceedings before the appellate court.
The counsel cannot exercise the right of the defendant to be present at the appellate session, as the counsel merely assists the defendant in criminal proceedings, and acts together with the defendant and not instead of the defendant.
In cases where a violation of the law concurrently entails a violation of a constitutionally determined right, i.e. the right of the defendant to be present at his or her trial determined by the second indent of Article 29 of the Constitution, it is not necessary to demonstrate the influence of that violation on the legality of the final judgment in order to establish a violation of the mentioned human right. The opposing position of the Supreme Court violates the right determined by the second indent of Article 29 of the Constitution.
Legal basis:
Cases joined:
Full text:
Type of procedure:
constitutional complaint
Type of act:
individual act
Helmut Klemenčič, Maribor
Date of application:
5. 3. 2014
Date of Decision:
9. 2. 2017
Type of decision adopted:
Outcome of proceedings:
annulment or annulment ab initio

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All decisions the Constitutional Court adopted since independence of Slovenia, with the exception of orders rejecting constitutional complaints or not accepting them for consideration on the merits that contain as reasoning only the reference to the statutory basis of the decision and the composition of the panel of the Constitutional Court (the fourth paragraph of Article 55c of the Constitutional Court Act), are published on this website.

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