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Tuesday, August 9, 2022

God, blue skies, and unused Article 288 of the Penal Code

By: Dr Vinko Gorenak

Following the recent decision of the High Court in Ljubljana, which ordered the detention of investigative journalist Bojan Požar, the Supreme Court reversed the decision immediately, I recalled one of my appearances in the National Assembly on the topic of responsibility in the judiciary. I have been collecting data for that performance for a long time, and the National Documentation Research and Documentation Centre of the National Assembly was of great help to me, which collected data from most European Union countries on this topic and summarised them in a document entitled: Responsibility of Judges and Prosecutors No. 33/2013 of September 16th, 2013. This document mostly summarises the CEPEJ data for 2010. This document is also the basis for the contribution you are currently reading. It is true that the data is quite old, but those who are looking for newer data will not find hot water, more precisely, the data have not changed significantly since then.

Austria

The 2010 document provides data on criminal offenses, professional misconduct, and breaches of professional ethics, with 46 such proceedings against judges and 4 against prosecutors. Austria had 17.8 judges per 100,000 inhabitants, and a European average was 21.6. Each of their prosecutors dealt with an average of 1,601.9 cases per year, the European average was 615.2 cases, 212.4 indictments were filed, and the European average was 136.1. In Austria, 3.1 disciplinary proceedings were instituted per 100 judges, while the European average was 2.1.

Italy

For the same year, the document provides the following information for this country. Italy had only 11 judges per 100,000 inhabitants. Each prosecutor received 1,821.2 cases per year and filed 370 indictments. 175 proceedings were instituted against judges and prosecutors. Thus, 2 proceedings were instituted per 100 judges and prosecutors.

Germany

Germany had 24.3 judges per 100,000 inhabitants. The German prosecutor received an average of 880 cases per year and filed 206.1 indictments. In Germany, 17 proceedings against judges and 3 proceedings against prosecutors were instituted at the time. Thus, 0.1 proceedings were instituted per 100 judges.

Slovenia

For 2010, the mentioned document for Slovenia stated that we had 49.9 judges per 100,000 inhabitants. Our prosecutor received an average of 554.5 cases per year and filed 89.4 indictments. In the mentioned year, a single procedure was initiated against judges in Slovenia, and there were no proceedings against prosecutors at all. 0.1 proceedings were therefore instituted per 100 judges.

Concluding remarks

To conclude, the above data are summarised according to the same parameters for the mentioned countries. As for the proceedings against judges, we can safely say that these proceedings in Austria (50 against both), Germany (20 against both) and Italy (175 against both) are, but in Slovenia they are practically non-existent, more precisely 1 procedure in that year. In terms of the number of judges per 100,000 inhabitants, Slovenia is at the very top (49.9), followed by Germany (24.3), Austria (17.8) and Italy (11). Moreover, at the prosecutor’s office the situation is similar. Each Slovenian prosecutor writes 89.4 indictments per year, 206.4 in Germany, 212.4 in Austria and 370.8 in Italy.

The most important thing is that all countries also have the responsibility of judges and prosecutors in their legislation. This is usually disciplinary, criminal as well as compensatory. But even here, the reality is quite different. In Austria, Italy and Germany, this responsibility is also exercised in practice. Things even go so far that if a judge is found guilty of a false trial, he is also materially liable up to a third of his salary or pension. In such cases, the injured party is paid compensation by the state, which then recovers it from the judge.

Well, we also have a similar provision in the Penal Code. This is an “illegal, biased and unjust trial”, written in Article 288, which reads as follows:

“A judge who knowingly violates the law or distorts the law to harm the party in the proceedings or pronounce a court decision, to harm the party in the proceedings or to give him undue advantage, shall be punished by imprisonment for up to three years.

The same penalty shall be imposed on a judge who, for the purpose referred to in the preceding paragraph of this Article, bases a court decision on facts which he knows do not exist or are falsely supported by false or inadmissible evidence”.

But let us return to the title where I wrote “unused Article 288 of the Penal Code”. And that is true. The mentioned article is a dead letter on paper, which the Slovenian judiciary has not yet used, at least I do not know such information. However, it may be time for lawyer Franc Matoz and investigative journalist Bojan Požar to initiate such a procedure, otherwise God and the blue sky will still reign over our judiciary.

Dr Vinko Gorenak is the State Secretary in the PV Cabinet, a former Member of Parliament and Minister of the Interior, a university professor, and a member of the SDS.

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