The Position of a Subsidiary Prosecutor, Private Prosecutor, and Injured Party in Criminal Proceedings
In Decision No. Up-320/14, U-I-5/17, dated 14 September 2017 (Official Gazette RS, No. 59/17), and in Orders No. Up-776/14, dated 22 June 2017 (Official Gazette RS, No. 59/17), No. Up-814/14, dated 21 September 2017 (Official Gazette RS, No. 59/17), and No. U-I-95/14, Up-320/14, U-I-5/17, dated 12 January 2017, the Constitutional Court considered its established case law according to which a subsidiary prosecutor, private prosecutor, and injured party lacked standing to file a constitutional complaint against a final judicial decision by which criminal proceedings were concluded. As the main purpose of criminal proceedings is to establish the existence of a criminal offence and the perpetrator’s criminal liability, the established position of the Constitutional Court was that the rights of the injured party are not directly decided on in criminal proceedings, regardless of the outcome of the proceedings and regardless of whether the injured party participated in the proceedings as a subsidiary prosecutor, a private prosecutor, or merely as an injured party. If these persons filed constitutional complaints, they were rejected by the Constitutional Court.
In the cases at issue, the Constitutional Court changed this position. It held that an injured party, private prosecutor, and subsidiary prosecutor are entitled to file a constitutional complaint against a final judicial decision by which criminal proceedings were concluded. It thus provided them access to the Constitutional Court and, subject to the fulfilment of the other procedural requirements determined by the Constitutional Court Act, also to consideration of their constitutional complaint on the merits. The change in position entails that an injured party, subsidiary prosecutor, and private prosecutor have the right to invoke constitutional judicial protection of their procedural rights in criminal proceedings by means of a constitutional complaint filed before the Constitutional Court.
The Constitutional Court also substantiated the change in its position with reference to the established case law of the European Court of Human Rights, which considers the rights of injured parties in criminal or other judicial proceedings in which the injured party lodges a civil claim within the framework of the first paragraph of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms if the outcome of such proceedings could be decisive for the relevant civil right of the injured party.
In Decision No. Up-320/14, U-I-5/17 the Constitutional Court reviewed the constitutionality of the fourth paragraph of Article 367 of the Criminal Procedure Act (the CrPA), which regulates the right of an injured party to appeal the judgment of the first instance court in criminal proceedings, and the constitutional complaint by which the complainant alleged a violation of the right stemming from Article 25 of the Constitution due to the position of the courts that as an injured party she was not entitled to lodge an appeal against the judgment of the first instance court in criminal proceedings outside the scope of the fourth paragraph of Article 367 of the CrPA. The answer to the question of whether by its judgment a criminal court of first instance (also) decides on the rights, obligations, or legal interests of the injured party was decisive for determining whether the case at issue entailed a situation in which an appeal or another legal remedy must be ensured in accordance with Article 25 of the Constitution.
The Constitutional Court held that by its judgment a criminal court decides not only on the criminal charges, but also on the interests of the injured party, including civil claims arising from the criminal offence, as well as the interest that his or her personal dignity as the victim of the criminal offence be adequately respected in the criminal proceedings. However, the standing of the injured party in criminal proceedings is not unlimited. The CrPA does not provide the injured party unlimited possibilities to protect his or her legal interests at the first instance, as the injured party only has standing within the scope of the procedural rights accorded to him or her by law. The purpose of these rights is to enable the effective enforcement of civil claims arising from the criminal offence, i.e. of the injured party’s legal interests. In this context, the standing of an injured party must also be limited at the appellate stage, yet within this scope the injured party’s right to appeal stemming from Article 25 of the Constitution must still be protected.
The Constitutional Court thus found that the challenged regulation, which did not provide the injured party the right to appeal a judgment of the first instance criminal court, i.e. to appeal a decision regarding his or her procedural rights and, within this scope, regarding his or her legal interests in criminal proceedings, entails an interference with the injured party’s right to an appeal stemming from Article 25 of the Constitution. As in the assessment of the Constitutional Court this limitation was not necessary to attain the pursued aim – i.e. punishing the perpetrator of the criminal offence or ensuring effective criminal proceedings in which a defendant’s constitutional procedural safeguards are observed – it entailed an excessive interference with the injured party’s right to a legal remedy stemming from Article 25 of the Constitution.
The Constitutional Court adopted a declaratory decision and required the legislature to remedy the established inconsistency within a period of one year from the publication of the decision in the Official Gazette of the Republic of Slovenia. With regard to the constitutional complaint, the Constitutional Court adopted a decision dismissing it. The judicial decisions that the complainant challenged with the constitutional complaint were based on a law that the Constitutional Court found to be inconsistent with the right to a legal remedy stemming from Article 25 of the Constitution. As an injured party, private prosecutor, and subsidiary prosecutor cannot exercise their right to appeal until statutory regulation of this right is adopted, the Constitutional Court dismissed the constitutional complaint.