Pre-trial Proceedings

After a criminal offence is reported or a complaint is filed, the police examine the circumstances of the offence. Together with the evidence, the complaint is then submitted to the state prosecutor.

The state prosecutor dismisses the complaint if they find no reasons to instigate criminal proceedings (e.g. because it is not an actual criminal offence, there is no reasonable suspicion that the suspect committed the criminal offence reported or on other grounds). The injured party must be informed thereof within eight days. In such an instance, the injured party may file the indictment with the court acting as the prosecutor in the proceedings. The injured party has the right to instigate or continue the prosecution within 30 days after receiving a communication from the state prosecutor.

Not all cases are so complex that it is only after an investigation that the state prosecutor can decide on whether to file an indictment or withdraw from prosecution. If a case seems quite straightforward, the state prosecutor may file the so-called direct indictment with no investigation after the receipt of the complaint.

If, after the receipt of a complaint, the state prosecutor assesses that criminal prosecution is not necessary if the suspect minimises or eliminates the harmful consequences of their actions in accordance with the state prosecutor’s instructions, the latter suspends criminal prosecution. If the suspect fulfils the agreed task, the state prosecutor dismisses the complaint.

What is suspended prosecution?

Suspended prosecution is a procedure which is initiated if the data collected reveals that a certain person committed a criminal offence, and the state prosecutor assesses that criminal prosecution is not required if the suspect minimises or eliminates the harmful consequences of their actions in accordance with their instructions.

In this case, the state prosecutor offers the suspect an opportunity to fulfil certain tasks with the injured party’s consent. If the suspect fulfils them, the prosecutor closes the criminal matter without submitting it to the court for discussion.

The procedure of suspended prosecution is governed by Article 162 of the Criminal Procedure Act and the General Instructions on the Uniform Application of Provisions of Article 162 of the Criminal Procedure Act on the Suspension of Criminal Prosecution (Splošno navodilo za enotno uporabo določb 162. člena Zakona o kazenskem postopku o odložitvi kazenskega pregona).

Which matters are resolved by suspended prosecution?

The procedure of suspended prosecution may be conducted for criminal offences for which a fine or imprisonment of up to three years is prescribed. And also when imprisonment of up to five years is prescribed in the event of special circumstances. Suspended prosecution is particularly suitable in cases against minors.

Cases of minor bodily harm, minor physical assaults against persons or property, minor offences against property, minor traffic accidents and the non-payment of child support are most frequently subject to suspended prosecution.

When is suspended prosecution implemented?

Suspended prosecution is implemented when the state prosecutor assesses that the conditions are met for its instigation and the injured party and the suspect agree to it. The injured party’s consent must not be bound by the condition, e.g. fulfilment of a task they propose themselves.

How does the procedure of suspended prosecution take place?

The suspect and the injured party receive an invitation to attend the suspended prosecution hearing. If they both agree, a hearing takes place at which the state prosecutor determines a task which the suspect has to fulfil, whereby the prosecutor may consider the injured party’s proposal. If the suspect agrees with the task, the state prosecutor issues a decision in which they define the task and the deadline for its fulfilment.

If the suspect submits evidence on the fulfilment of the task on time, the prosecutor dismisses the criminal complaint with a decision and the case is thus closed. The suspect goes unpunished, is not entered in the criminal record and bears no other costs.

Which tasks can the state prosecutor determine?

Elimination of damage or damage compensation;
payment of a certain contribution to the benefit of a public institution, for charitable purposes or to a crime victims’ compensation fund;
community work;
settlement of child support;
treatment in a suitable health-care institution;
attendance of suitable psychological or other counselling;
observance of a restraining order prohibiting approach to a victim, another person or a particular location.

What happens if the suspect fails to complete the task?

If the suspect fails to fulfil the task, the state prosecutor instigates criminal prosecution against them before the court (they file the indictment). In criminal proceedings, the suspect may be convicted, entered in the criminal record and obliged to pay the costs of criminal proceedings.

What does it mean if I receive an invitation as a suspect and what do I do next?

If you receive an invitation as a suspect, it means that:

a criminal complaint has been filed against you and the state prosecutor has assessed on the basis of the data available that you have committed a criminal offence. Which criminal offence you are accused of is described and stated in the invitation;
the state prosecutor has assessed that the case is suitable for suspended prosecution and is giving you an opportunity to resolve the manner outside the court based on the injured party’s consent;
you are invited to a hearing, at which you will be able to propose the fulfilment of a certain task and demonstrate your readiness for an out-of-court resolution of the matter.

What do I do?

If you do not wish to participate in the procedure of suspended prosecution, inform the prosecutor’s office which invited you to the hearing.

If you intend to attend the hearing, bring your invitation and an identification document.

What does it mean if I, as an injured party, receive an invitation and what should I do?

If you receive an invitation as the injured party, it means that:

you suffered damage/were injured due to the action of the suspect;
you can decide on whether to give the suspect an opportunity to conclude the matter without a court hearing, provided that they follow the prosecutor’s instructions;
you have the opportunity to present the consequences of the suspect’s actions at the hearing;
you can propose to the state prosecutor which task(s) the suspect should fulfil. The state prosecutor is not obliged to observe your proposal.

What to do?

If you agree with the suspended prosecution, complete, sign and return the consent form.

If you do not agree with it, inform the prosecutor’s office which sent you the invitation.

Your attendance at the hearing is not mandatory. You can attend if you wish.

Do I need a lawyer in the procedure of suspended prosecution?

Suspended prosecution is an alternative method of resolving criminal matters and encroaches significantly less upon a person’s rights if compared to court (criminal) proceedings, which is why the presence of a lawyer is not mandatory by law. A lawyer may be present at the hearing and you bear their fee.

What are the consequences of suspended prosecution?

If the suspect fulfils their task within the determined deadline, the state prosecutor closes the case with a decision on the dismissal of the criminal complaint. The suspect is considered unpunished with regard to the relevant action and is not entered in the criminal record.

If the suspect disagrees with the suspended prosecution, does not attend the hearing or does not fulfil the task determined by a decision, the state prosecutor files the indictment with the competent court. In criminal proceedings, the court will be able to deliver a judgment and a criminal sanction and impose the payment of criminal proceedings costs.

What are the costs of suspended prosecution?

The injured party and the suspect bear their own costs, or they may agree otherwise.

The suspect’s or the injured party’s costs include their costs of transport to the suspended prosecution hearing, the costs related to their absence from work and the payment of a lawyer’s fee if they choose one.

A plea agreement is a written agreement between the state prosecutor and the defendant by means of which they agree on the type and amount of the criminal sanction for the alleged criminal offence if the defendant pleads guilty (in return for the defendant’s admission of guilt).

What is a plea agreement?

A plea agreement is a written agreement between the state prosecutor and the defendant by means of which they agree on the criminal sanction for the alleged criminal offence on the basis of negotiations in return for the defendant’s admission of guilt.

The defendant and the state prosecutor decide voluntarily on the negotiations and the conclusion of this agreement.

A plea agreement is governed by the provisions of Article 450a to 450č of the Criminal Procedure Act and the General Instructions on Negotiations and the Proposal of Criminal Sanctions in the Event of an Admission of Guilt and a Plea Bargain (Splošno navodilo o pogajanjih ter predlaganju kazenskih sankcij v primeru priznanja krivde in sporazuma o krivdi).

What can the state prosecutor and the defendant agree on in the agreement?

The state prosecutor and the defendant may agree on:

punishment or an admonitory sanction and the manner of executing the punishment;
the state prosecutor’s withdrawal from criminal prosecution of the defendant’s criminal offences, which are not included in the admission of guilt if the injured party agrees to this;
the costs of criminal proceedings;
fulfilment of another task.

The subject of the plea agreement cannot be:

legal definition of a criminal offence;
precautionary measures when these are mandatory;
confiscation of proceeds of crime, except the manner of confiscation.

In which matters is it suitable to conclude a plea agreement?

The law does not limit the conclusion of the agreement to certain criminal offences; however, the agreement is usually concluded in more challenging cases and especially when the agreement:

significantly shortens criminal proceedings;
encourages the defendant to submit evidence for another more serious criminal offence which was committed by another person;
enables the victims and sensitive witnesses to be exempt from testifying at the main hearing.

What is the purpose and objective of the plea agreement?

The purpose of this instrument is to offer a defendant who admits to committing a criminal offence, in return for their cooperation in the proceedings, an agreement on the imposition of a lesser sentence than would have been imposed if a regular trial had taken place.

The objective of the plea agreement is to avoid conducting proceedings before the court, accelerate proceedings and reduce the costs of criminal proceedings.

What is the procedure of concluding a plea agreement?

Certain conditions must be met to conclude a plea agreement. The defendant may conclude the agreement only in cooperation with the counsel (lawyer) appointed by the court if the defendant failed to engage one themselves.

Negotiations between the state prosecutor and the defendant take place before the agreement is concluded. As a rule, the state prosecutor proposes the conclusion of the agreement. But it may also be proposed by the defendant.

The parties to proceedings submit the plea agreement to the court which rules on it. If the agreement is concluded as per legal provisions, the court must accept it and impose a criminal sanction agreed on by the state prosecutor and the defendant.

The court may only dismiss the agreement if the plea is not clear, complete and supported by evidence, if it is determined that it was not given voluntarily or that the defendant did not understand the consequences of the admission of guilt. The court also dismisses the agreement if it does not contain all the required elements (written form signed by the state prosecutor, the defendant and the counsel, description of the criminal offence as requested for the indictment), if a counsel was not involved in the procedure and if it contains an agreement on matters which are not subject to agreement.

What are the consequences of concluding a plea agreement?

When concluding a plea agreement, it is understood that the defendant acknowledges the criminal offence and that the court will pass a sentence on the defendant as was agreed in the agreement. The court only examines whether the agreement is compliant with legal requirements and does not interfere with the content of the agreement.

What are the consequences if the defendant negotiates, but fails to conclude the agreement?

Failed negotiations may result in the agreement not being concluded, which means that the state prosecutor will either file the indictment or proceed with criminal proceedings. The court is not informed about the negotiations taking place between the parties to proceedings; furthermore, documents referring to the negotiation procedure are removed from the case file.

What should I do if I receive an invitation to negotiations to conclude a plea agreement?

If you receive an invitation to negotiations, respond to the invitation and communicate whether you wish to negotiate or not.

If you decide to negotiate, choose a counsel (lawyer) or the court will appoint one for you.

What is the difference between a plea agreement and the admission of guilt at a pre-trial hearing?

With regard to the plea agreement, the state prosecutor, the defendant and the counsel (lawyer) sign the agreement, which specifies in detail the rights and obligations of both parties. If the agreement meets the conditions set out by the law, the court is bound by it and obliged to impose an agreed sentence.

When admitting guilt at a pre-trial hearing, the defendant gives a statement that they admit guilt for the alleged criminal offence, whereby their admission must not be bound by a condition. After the admission of guilt at a pre-trial hearing, the court may not impose a stricter sanction than was proposed by the state prosecutor, but it may pass a more lenient criminal sanction.

Who may propose the conclusion of a plea agreement?

The state prosecutor may at all times propose the conclusion of the plea agreement or the start of negotiations to conclude the agreement. As a rule, the offender may submit the proposal only after the start of criminal (court) proceedings (after the investigation was initiated or the indictment has been filed).

State prosecutors are particularly inclined towards the conclusion of plea agreements in extensive and complex cases for which lengthy criminal proceedings are expected.

If you wish, you can propose that the state prosecutor working on the case against you commence negotiations on a plea agreement. The state prosecutor is not obliged to negotiate but decides on it independently. A form with a proposal for the state prosecutor to negotiate a plea agreement is available on the following link.

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