Slovenia, Constitutional Court, U-I-42/12-15, constitutional, 7 February 2013, ECLI:SI:USRS:2013:U.I.42.12
Rule of law:
Impartiality:
Ustavno sodišče Republike Slovenije
The Constitutional Court of Republic of Slovenia
U-I-42/12-15
7 February 2013
ECLI:SI:USRS:2013:U.I.42.12
Article 2 TEU and Article 19 TEU (not directly invoked)
Transfer of state prosecution services from the ministry of justice to the ministry of interior affairs
Is the legislator allowed transfer the state prosecutors’ offices from the ministry of justice to the ministry of interior affairs or does this constitute a violation of Article 135 of the constitution (the autonomy of the state prosecutors)?
Articles 3(2), 135, 136 of the Constitution
The Constitutional Court, Decision U-I-60/06, U-I-214/06, U-I-228/06 of 7 December 2006
In 2012, the newly elected government decided to transfer the state prosecutors’ offices from the ministry of justice under the ministry of interior affairs. A group of deputies of the national assembly (the NA) decided to refer the case to the CC.
The CC held that the state prosecutors do not pertain to the judicial branch, as they do not exercise judicial power, but to the executive branch of power, despite the fact that they form the judiciary (“pravosodje”) in lato sensu and the fact that their role (submitting and representing indictments) is of paramount imporatance for the judicial system and functioning of the courts, since judges cannot judge and prosecute at the same time. As the state prosecutors are a part of the executive branch, transferral of state prosecution offices from one ministry to another (within the executive branch) cannot in itself lead to an interference with the principle of separation of powers. Independence, flowing from the principle of separation of powers, protects the state prosecutors against undue pressure from the judicial or legislative branch, whereas the principle of autonomy (Article 135) shields them from interference by the executive branch. (para. 28)
The state prosecutors enjoy special protection of the constitution. First, the state prosecution service must be organized as an autonomous state body and not as a part of government or public service. Second, the state prosecutors must be autonomous in the performance of their duties. This means that they (and only them) can exercise their function, without any pressure or instructions; they are only bound by the Constitution, the law and the policy of prosecution. The legislation, which would subject the state prosecutors to any kind of instructions in individual cases or would enable to put the prosecutor under undue pressure, is thus contrary to the Constitution.
Turning to the facts of the case, the CC did not found a violation of the Constitution, because all other guaranties of autonomy remained intact. The sole difference was that the transfer of state prosecution service from one ministry to another. The CC also rejected the argument that the transferal raised doubts as to the impartiality of the state prosecutors as they could be regarded as an instrument of the police. Without assessing whether or to what degree the so-called doctrine of the appearance of independence and impartiality, which is generally applicable to judges, also applies to state prosecutors, the CC held that the transferal itself cannot affect such appearance. The same argument was used to reject the allegation, that the impugned legislation is unconstitutional since it concentrates the power over the police and the state prosecutors in one person: minister of the interior; and the claim that this could lead to systemic deficiencies in the conduct of independent investigations of criminal acts, committed by the police.
Constitutional Court, Decision U-I-60/06, U-I-214/06, U-I-228/06 of 7 December 2006; U-I-94/20-2 of 14 May 2020
The applicants referred to a few cases of the ECHR and to Bordeaux declaration, so there was room for the CC to apply these instruments, but the CC explicitly invoked only constitution. It is the fundamental decision of the CC with respect to the state prosecutors, so it might nevertheless be interesting.
Mohor Fajdiga (UL)