REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: German Country of exchange: Slovenia Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: German Functions: Prosecutor Length of service: 10 years Identification of the exchange Hosting jurisdiction/institution: The Office of the State Prosecutor General of the Republic of Slovenia City: Ljubljana Country: Slovenia Dates of the exchange: Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) REPORT This was my second time particpating in the EJTN exchange programme. While the first time in 2012 I had the opportunity to learn about the polish judical system, in 2013 it was Slovenia, a country I did not have much points of contact with in my work so far (other than Poland), but for the second time a former member of the eastern block and a country that only had democratic strutures for about 22 years, which made comparisons with my experiences in Poland particulary interesting. The exchange took place in Ljubljana, capitol of Slovenia, during the period from to This was again a group exchange, this time with 12 participants, the group consisting of nine judges and three prosecutor altogether. There were participants from Spain, Germany, France, the United Kingdom, Italy, Luxembourg, Romania and Estonia. In contrast to the exchange in Poland, the group was partly devided this time, the prosecutors having a different schedule on some days than the judges, who were furthermore split into two groups, civil and criminal judges and administrative judges. In my eyes this was quite a good idea, because each group could concentrate much more on the parts regarding their own fields of work and did not have to attend hearings, discussions, etc. dealing with subjects they ve nothing to do with in their daily work. Still you had enough time to get to know all other participants, because the group still spent 5 days together with visits to certain institution that could be of interest to anyone of them. Maybe it would have been even

3 better to put the criminal judges together with the prosecutors, because they share quite a lot of work - at least more than with civil judges - but this would be for the criminal judges to complain about if they really did find their timetable to be focused to much on civil law. On the first day the whole group met with some officials from the Ministry of Justice of the Republic of Slovenia in the morning. The Ministry was in the center of the town and easily reacheable by foot if you chose one of the accomodations that had been recommended by our host. We did receive a friendly welcome and then had the opportunity to introduce ourselves to the other participants and the representatives of our host country. After that we were given some general information about the exchange, the timetable and other important facts. The meeting went on with some short lectures about the country itself and its judicial system in general. While during my visit to Poland such lectures did take place on two subsequent days, in Slovenia they did only present the basic facts and were done with that in less than two hours. In my opinion that was quite sufficient, because most of the important details we got to know on the following days anyway while we were visiting various institutions of the judical system. On the other hand those presentations did not hold much surprises, the structure of the judicial system in Slovenia is not uncommon, at least compared to the judical systems I know, divided into the three branches of civil, criminal and administrative law. Because Slovenia is rather a small country with only about 2 million inhabitants and not a federal state as Germany is, the system of courts is a bit different from what I know. There exist local and district courts as well as administrative courts. Above the district courts there are four Courts of Appeal (Ljubljana, Maribor, Koper and Celje) and on the top the Supreme Court. Apart from that the Constitutional Court is also situated in Ljubljana, as is the Higher Administrative Court. For labor cases there do also exist special courts, but as far as I understood not for social cases and matters of taxation. Altogether there work about 1000 judges in Slovenia at present and more than 200 prosecutors. Compared to the size of the country and it s number of inhabitations that is really a lot and in this regard puts Slovenia in the lead in the European Union. The Slovenians have realized their high number of judges to be a problem though and are now trying to bring the number down, not least because the countries economy has been falling into crisis lately and Slovenia is not far from slipping under the European Union s euro rescue fund. One measure that is presently discussed is to raise the minimum age for becoming a judge or prosecutor from 30 to 35 years. As for prosecutors, Slovenia has a prosecutor s office in every city that has at least a district court and the office of the State Prosecutor General, which is situated in Ljubljana. After the lectures there was time for lunch and then our guides took us to the Supreme Court of Slovenia, where a judge was waiting for us to briefly introduce the group to the countries general history, especially the circumstances that led to its independence in Afterwards he took us to several places of interest in the city as the Dragon s Bridge, the market, the townhall, the national library and the important churches of central Ljubljana. Near the end of our sightseeing tour me and my fellow participants from Germany became aware that our guide did also speak perfectly german, because he had been studying in Heidelberg. So we had some nice talk in a nearby café after the official part had ended disussing and comparing the general situation of judges and prosecutors in Germany and Slovenia. The second day was the first day that the group was devided, so I found myself together with a female colleage from Luxembourg and a prosecutor from Romania on the way to the prosecutor s office in Maribor, Slovenia s second biggest city situated in the northeastern part of the country. Our hosts had organized a ride to Maribor for us and appointed a judical advisor as a guide. Judical advisor is a position unknown in Germany, where you can become judge or prosecutor at once after you passed the second exam with no minimal age or further special training. In Slovenia this is different as it is also in Poland, where the judical advisors are called judge assistents, but are pretty much the same. Before you can become judge or prosecutor you have to do work in that kind of "waiting position" doing almost the same work as a judge or prosecutor himself, with much less responsibilities of course, but also much less payment. Although it is not very difficult to become such an advisor after the bar exam, it is much more

4 difficult to reach the position of judge or prosecutor in the end, at least any time soon. Five years of waiting or more are not uncommen. In Maribor we visited the local prosecutor s office and were welcomed by the head of the office himself. He showed us around and we had a very interesting talk about a prosecutor s work in Slovenia and, in comparison, Germany, Luxembourg and Romania. The office itself did remind me much of my office at home, altough my impression was that the furnishing, especially the technical equipment, was in much better condition. The first difference I heard about on investigative matters was, that a prosecutor in Slovenia needs a much higher level of suspicion to start an investigation than in Germany. While in Germany I do not need much more than the statement of an informant or witness or in some cases even rumours, together with knowledge from past activities of a suspect, to request an order from the investigative judge for several measures, in Slovenia the police has to present some hard evidence before the investigation can only start or the investigative judge will sign anything at all. In Germany the level of the investigative measure that is possible in a case does not depend so much on the level of suspicion, but rather on the severeness of the crime. The more sever a crime the more actions are possible. In Slovenia this seems to be rather a question of the level of suspicion. After our visit at the prosecutor s office we had a short talk with a criminal judge at the district court in Maribor. She explained to us some new invention in Slovenian criminal law, the so-called "pre-trial hearing", which is adopted from anglo-american law. This is some kind of negotiation between the judge, the prosecutor and the defendant, where the judge makes a proposal for a sentence in case of a immediate confession. If the proposal is accepted by the defendant the procedure will be shortened considerably. As far as I understood in that case there will be no "real" verdict, but just a court order, that states the typ and level of the punishment. On our third day the prosecutors visited the National Bureau of Investigation (NPU) - some special police unit similar to the german "Bundeskriminalamt" - and in addition the forensic laboratory and the police museum. At the NPU we learned that the main fields of crime in Slovenia are economical crimes and corruption. For example, almost every major of the bigger cities does either have some investigation running against him or is even convicted. On the other hand, Slovenia seems to be a rather peaceful country. Murder, rape and other severe crimes of that kind a rare, for example, the avarage is one murder a year happening in the whole country. Just for comparison, the region of my prosecutor s office, which has about half the number of inhabitants that Slovenia has, has at least one new murder case a month, sometimes even more. Organized crime though is also present in Slovenia and raising, mostly committed by suspects from eastern european and former russian countries. Koper, that is the only big port in Slovenia, is the center of their activity, which include especially drug commerce, human trafficking and illegal immigration, as many criminals have begun to realize Slovenia as an easy access to the rest of the EU. So most of the drugs, people or whatever illegal goods are brought in via Koper do also mainly leave again over the italian or austrian border. Maybe that is also the reason why investigations on that matters do no seem to be very urgent to slovenian authorities. At least we were some time later told by the prosecutors working in Koper, that they have big problems with their cases because of lack of support from the Specialized Department at the State Prosecutor s Office, that should actually be responsible for bigger cases on the field of organized crime. After a short visit to the facilities of the National Forensic Laboratory we were shown a small police museum on the outskirts of Ljubljana, that is not open to the public, but only to officials. The museum told the stories of some outstanding crimes in Slovenia s past, especially some mass murder cases. In addtion, we learned about the role of the police in the "10-days-war" that eventually led to Slovenia s independence. On thursday we paid a visit to the Supreme Court and the Constitutional Court in Ljubljana, this time again with the whole group of all 12 participants. Both institutions gave us short lectures about their functions and responsibilities, which were not very different from their german counterparts.

5 On friday not only the prosecutors, but again the whole group paid a visit to the State Prosecutor Generals office in Ljubljana at first. This institution seems to be quite different from the german higher prosecutor offices or even the attorney general. In fact in Germany the main task of the higher prosecutor offices is functional supervision and administration, apart from representation in revision cases and objections. Except from cases involving terrorism, which are dealt with at the attorney general, there are no investigations done there. In Slovenia the staff of the State Prosecutor General are also doing investigations in important and big cases, which they can take over from the ordinary prosecutor s offices, either if they are asked to do so by their colleagues and accept, but sometimes also on their own decision. Supervision is also done, but not in the same way as in Germany, for the prosecutors in Slovenia are independent as judges are, at least on paper. That this is rather a weak form of independence we learned shorty after the presentation of the State Prosecutor General s representative, when a member of the Prosecutor s council intruduced herself. These sort of councils, that also did exist in Poland, do always somehow make the impression of some relict from the communist era, at least to me. In Slovenia this council mostly does the supervision and it also carries out disciplinary measures and decides on matters of dismissal as well as appointment of prosecutors. As far as I understood, the council does also regulary check the work of single prosecutors. For the judges there is the same sort of council, to which we were introduced later in the second week. It has almost the same responsibilities and powers as the one for prosecutors. So at least the independence of judges is rather weak in Slovenia compared to Germany, where the work of a judge is never supervised by others, except on official channels by higher courts, and were wrong or dubious decisions or even idleness is never punishable with disciplinary measures, at least as long as a judge s acts do not represent a crime. The first week of the exchange then came to an end with the visit of a prison in Ljubljana. Although quite small and situated in a rather old building, I had do admit that conditions in that prison where not worse than in Germany, maybe even better. The main problem was overcrowding, some rooms holding double the number of prisoners as they actually should. Apart from that the atmosphere was not as unpleasant as I know from several prisons I visited in Germany. The director of the institution, after giving us a brief summary about the penal system in Slovenia, led us through the complex without fear of contact with the prisoners who were all around us. Again I was thinking about how rather peaceful that country seems to be, for in Germany I m quite sure, we would not have been allowed to enter the courtyard while dozens of prisoners where walking and chatting there, just for reasons of safety. Maybe this also has to do with the ethnic composition, because in Ljubljana prisoners were mainly Slovenians and a few people from other ex-jugoslavien countries, while in Germany around 80 percent of the inmates of many prisons are foreigners, especially from arabian and former russian countries, who do have a rather bad reputation. After the weekend, on monday and tuesday the prosecutors got the chance to get to know two other smaller prosecutor s offices, one in Koper, the other in Celje. In Celje, where we also did have the chance to witness a hearing - the only one during the whole exchange - we were invited for lunch by the head of the prosecutor s office, a very kind gesture. Afterwards we attended the above mentioned hearing at the district court of Celje. Subject of the hearing was a defendant, who was under suspicion of having abused is daughter as a minor and beaten his son several times. The trial did already last for some time, so this was not the first hearing. I was surprised that the defendant was not in custody, but our guides explained to me, that one of the main difficulties of the trial was the question of prescription, whether some or even all of the charges were committed too long ago to be still judged. Other than in Germany there was only one professional judge and two lay judges, although we were told that the defendant could get a sentence of more than 5 years. Shortly after the start of the hearing a psychologist made a testimony about the condition of the female victim and her testimony, which obviously had been given some time before. The whole testimony was electronically recorded, which is a big difference to Germany, where such recordings are forbidden. After the testimony the prosecutor made a claim to alter the indictment (which would also not be possible in Germany), while the defendant s attorney requested to hear more and more witnesses. After a short break, both claims were simply rejected by the judge with no further explanation. Unthinkable in Germany were this would surely lead to the reversal of the judgment by the Supreme

6 Court, because of violation of the rights of the defendant. But in Slovenia even a single judge seems to be more powerful and the defendant and especially his attorney do seem to have less options to sabotage a trial with unreasonable claims. In my opinion, that s quite an advantage. On wednesday we did again visit the Office of the State Prosecutor General in Ljubljana, this time focused on the Specialised Prosecutor s Department, that we had heard of before on several occasions. This time only one of the advisors working in the department came to do some talking. Nevertheless it was quite an interesting discussion that intensified my impression that, compared to Germany, for doing a sucessfull investigation the police and prosecutors in Slovenia have to overcome quite a lot more obstacles, but if they manage to bring someone to the trial, the defendants chances to be found not guilty are rather less. At the Office for Money Laundering Prevention, a part of the Ministry of Finance, I learned that protection of private data does however not enjoy the same rank as in Germany, for in Slovenia all financial transactions may be monitored and analyzed. On the last two days the group was together again and visited the Judical Council (which is the same institution as the Prosecutor s Council, but for judges), the Court of Appeal of Ljubljana, the bar association and the State Attorney s Office. The latter is an institution that cannot be found in Germany, where administration and government facilities have to either send employed lawyers to the court or simply make use of an independent advocate. At the Court of Appeal I was surprised by the fact that there exists a department for mediation and negotiation, which is not common for second instance when there has already been a "fight" between the parties before court and the court has delivered a verdict. Nonetheless we were told that the department for mediation is able to solve quite a lot of cases with a settlement deal even in the second instance. At the bar association we then gained a short insight into the daily work of the typical lawyers in Slovenia, which is not very different form the situation in Germany as far as I can judge. Regarding the benefits of the exchange, there is not much to be added to my statement on the last exchange; I do also believe my second participation to be highly beneficial. Again there was the opportunity to get to know not even colleagues from the host country but also from other european countries, this time some countries that were not present during my last exchange, above all France and the United Kingdom, whose law systems were mostly strange to me. So we regulary had discussions among the participants after our visits about the legal situation in our home countries regarding what we had just observed. It was very interesting to find out about the differences and about the reasons for those variations. Another benefit was that the exchange again greatly improved my english skills, especially on the field of judiciary terms. As a conclusion I can state that the exchange has again wholly fullfilled my expectations, sometimes even exceeded them. Regarding the organistation, this exchange was quite different from the one I experienced before and I could not truly decide which one I liked better. In Poland, the first week in Warsaw was full of extensive and sometimes dull lectures as well as some really interesting visits to political and judicial institutions, like for example the polish parliament. The second week, that took place in a smaller city, was more practically orientated with a lot of hearings to attend and a very tight timetable that included free time activities as well. The exchange in Slovenia was rather something inbetween. Lectures were pleasantly short and there was more time for a lot of really interesting discussions with officials from the different institutions. On the other hand, only one time we had the chance to attend a hearing. Free time activities were not on the schedule, except perhaps for the guided tour of Ljubljana on the first day, but in combination with the one day visits to the other cities our guides always asked us, whether we d like to see some more of the city and its surroundings after the official programme had ended. I know though, that the administrative judges did not enjoy that much variety, for they did only stay in Ljubljana.

7 The period for the exchange was generally not preferable in my mind, because as we were told by locals, late october is usually not a pleasant time to stay in Slovenia, due to bad weather with much rain and cold temperatures. In our particular case we were extremely lucky though, because we had nice and relatively warm weather on almost any day of both weeks. But this seemed to be rather exceptional. Another thing worth mentioning is that Slovenia, especially Ljubljana, is quite expensive in my eyes, at least much more than Poland was, considering accommodation as well as food. Nevertheless the per diem rate for Slovenia is the lowest of all, so maybe it should be taken into consideration to alter this for future exchanges.

8 SUMMARY As a prosecutor from Germany I got the chance to participate for the second time in The Exchange Programme for Judicial Authorities. My host country for 2013 was Slovenia, both weeks staying in the capitol, Ljubljana. It was a group exchange with twelve participants from multiple european countries, which in this particular case were - apart from Germany - Spain, Italy, Romania, Luxembourg, France, Estonia and the United Kingdom. The exchange was organized by the Ministry of Justice of the Republic of Slovenia and - especially for the prosecutors - also the office of the State Prosecutor General Of Slovenia. All participants stayed at individual hotels in Ljubljana for the whole time. The groups were partly seperated though, with the civil and criminal judges staying at Koper for three days in the second week, while the prosecutors enjoyed daily visits to the towns of Maribor, Celje and Koper. The first week in Ljubljana started with short lectures about the judiciary system of our host country and the principles of slovenian civil and criminal law. The remaining days we visited different judiciary institutions like the Supreme Court of Slovenia, the Constitutional Court, the State Prosecutor General, a prison, the bar association and others. Almost every visit was accomplished by a discussion round with some officials and we had the possibility to have a look at offices and court rooms. The prosecutors did also visit some important police facilities, as the National Bureau Of Investigation, and furthermore the prosecutor s offices and district courts of three smaller towns (Koper, Maribor and Celje), where we also had the chance to attended a hearing. During that time I had the opportunity to draw a lot of comparison between the judicial system of my home country and the slovenian system and discuss the emerging matters and questions with slovenian officials and other members of my group. As a prosecutor I was mainly interested in the differences between Slovenia and Germany regarding the investigative procedure and the trial in criminal matters. Apart from that, as a former participant of the exchange programme and attendee of an exchange to Poland I was also eager to know about the differences between the Polish and the Slovenian system, because both countries shared a communistic past. I was surprised by the many differences between both judicial systems, but could also observe some similarities. One of them the fact, that there are much more judges and prosecutors in both countries than in Germany (in relation to the number of inhabitants), but that the requirements to become judge or prosecutor are much higher and the function enjoys much more respect from the citizens. Regarding the present situation, Slovenia seems to have much trouble with corruption and economical crimes while this was not such a pressing subject in Poland, where the typical organized crimes like drug commerce or robbery and theft, that I do also know best from my work at home, do also dominate. Compared to german standards, the power given to the prosecutor by the law in Slovenia makes it rather more difficult, in Poland rather more easy to do investigations on criminal matters. During the exchange I had the opportunity to get to know a lot of people from my host country and the other countries taking part, which might be very useful in my future work, for I often have to cope with international criminal activities in my division. Apart from that I was able to establish some nice contacts and gain a lot of experience not only for my job and my english skills but also for my private life.

9 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?