Reference no.: |
Up-5/93 |
Objavljeno: |
Unpublished | 18.04.1996 |
ECLI: |
ECLI:SI:USRS:1996:Up.5.93 |
Act: |
Constitutional complaint by D.G. against: 1. the resolution of the Basic Court in Celje, Celje Unit, no. Ks 20/93 of January 22, 1993, in connection with the resolution of the same court, no. I Kr 47/93 of January 20, 1993, 2. the resolution of the Superior Court in Celje, no. Kp 48/93 of February 23, 1993, in connection with the resolution of the Basic Court in Celje, Celje Unit, no. Ks 46/93 of February 17, 1993, 3. the resolution of the Superior Court in Celje, no. Kp 118/93 of April 29, 1993, in connection with the resolution of the Basic Court in Celje, Celje Unit, no. Ks 126/93 of April 23, 1993, 4. the resolution of the Basic Court in Celje, Celje unit, no. K 70/93 of May 18, 1993, 5. the resolution of the Basic Court in Celje, Celje Unit, no. Ks 343/93 of November 9, 1993, and 6. the resolution of the Basic Court in Celje, Celje unit, no. K 439/93 of January 7, 1994. |
Operative provisions: |
The constitutional complaint by D.G. against 1. the resolution of the Basic Court in Celje, Celje Unit, no. Ks 20/93 of January 22, 1993, in connection with the resolution of the same court, no. I Kr 47/93 of January 20, 1993, 2. the resolution of the Superior Court in Celje, no. Kp 48/93 of February 23, 1993, in connection with the resolution of the Basic Court in Celje, Celje Unit, no. Ks 46/93 of February 17, 1993, 3. the resolution of the Superior Court in Celje, no. Kp 118/93 of April 29, 1993, in connection with the resolution of the Basic Court in Celje, Celje Unit, no. Ks 126/93 of April 23, 1993, 4. the resolution of the Basic Court in Celje, Celje unit, no. K 70/93 of May 18, 1993, 5. the resolution by the Basic Court in Celje, Celje Unit, no. Ks 343/93 of November 9, 1993, and 6. the resolution by the Basic Court in Celje, Celje unit, no. K 439/93 of January 7, 1994, is dismissed. |
Abstract: |
The appellant, who at the time the Constitutional Court adjudicated on the matter was no longer in detention, demonstrated that he satisfied the requirement of standing to request a decision on a constitutional complaint by stating that if the Constitutional Court were to sustain the case he would exercise his right to compensation for unjustified deprivation of liberty - irrespective of whether or not he might win the action. Since the appellant was being tried in criminal proceedings due to the probable cause that he had committed two criminal offences of grand larceny, because he had committed several criminal offences against property prior to these two, because he committed criminal offences continuously and because the gravity of the offences committed against property was increasing, there was a real possibility that if set free he would have reiterated the criminal offences and thereby violated the safety of other people. This demonstrated the absolute necessity of detention for the protection of society. |
Password: |
Detention due to the hazard of reiteration. The right to personal freedom. Everyone's constitutional right to protection. Dissenting opinion by a Constitutional Court judge. |
Legal basis: |
Constitution, Articles 34, 20. and 19. Criminal Procedure Act (ZKP), Articles 201, 191. and 165. Constitutional Court Act (ZUstS), Paragraph 1 of Article 59. |
Note: |
In the Reasoning explaining its decision, the Constitutional Court refers to decisions no. Up-57/95 and Up-75/95 of July 7, 1995, and U-I-18/93 of April 11, 1996. |
Document in PDF: |
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The full text: |
Up-5/93 April 18, 1996 D E C I S I O N At a session held on 18 April 1996 in a procedure to review constitutionality begun at the initiative of D.G. of P, represented by M.I., a lawyer in C., the Constitutional Court decided: The constitutional complaint by D.G. against 1. the resolution of the Basic Court in Celje, Celje Unit, no. Ks 20/93 of January 22, 1993, in connection with the resolution of the same court, no. I Kr 47/93 of January 20, 1993, 2. the resolution of the Superior Court in Celje, no. Kp 48/93 of February 23, 1993, in connection with the resolution of the Basic Court in Celje, Celje Unit, no. Ks 46/93 of February 17, 1993, 3. the resolution of the Superior Court in Celje, no. Kp 118/93 of April 29, 1993, in connection with the resolution of the Basic Court in Celje, Celje Unit, no. Ks 126/93 of April 23, 1993, 4. the resolution of the Basic Court in Celje, Celje unit, no. K 70/93 of May 18, 1993, 5. the resolution of the Basic Court in Celje, Celje Unit, no. Ks 343/93 of November 9, 1993, and 6. the resolution of the Basic Court in Celje, Celje unit, no. K 439/93 of January 7, 1994, is dismissed. Reasoning: A. 1. In a constitutional complaint submitted on January 25, 1993, the appellant contests the resolution of the Basic Court in Celje, Celje Unit, no. Ks 20/93 of January 22, 1993 in connection with the resolution of the same court, case no. I Kr 47/93 of January 20, 1993. He says that an order to detain him was passed with the contested decree for reasons under Item 3 of Paragraph 2 of Article 191 of the Criminal Procedure Act (Official Gazette of the Socialist Federal Republic of Yugoslavia, no. 4/77, 14/85, 26/86, 57/89 and 3/90 - hereinafter: the ZKP-77). An out-of-trial senate dismissed an appeal against this resolution. The appellant proposes the abrogation of the contested resolution and the lifting of his detention, and proposes that they be established as unconstitutional. 2. The appellant believes that Paragraph 1 of Article 20 of the Constitution does not permit detention due to the hazard of reiteration if only property is in danger. He claims that the term "protection of society" does not include people's property. If the legislator's intention was to include people's property it would have stated that categorically. He claims that it follows from Paragraph 5 of Article 36 of the Constitution that the framers of the Constitution, at least in the chapter on human rights and basic freedoms, differentiated between protection of society and the protection of property. A restrictive interpretation of the expression "protection of society" is allegedly dictated by the provision contained in Paragraph 5 of Article 15 of the Constitution; if the framers of the Constitution were thinking of property they would have provided so categorically in Article 20. 3. On August 2, 1994 the appellant expanded his constitutional complaint to include the resolution cited in Items 2 - 6 of the disposition. 4. The Superior and Basic Courts in Celje did not reply to the constitutional complaint. 5. In the procedure to decide on the constitutional complaint, the Constitutional Court examined file no. K 439/93 of the Basic Court in Celje, Celje unit. B. 6. At the time the Constitutional Court was adjudicating the appellant was no longer in detention on the basis of the contested resolutions. On January 7, 1994 the first instance court passed a resolution which became binding upon the rejection of an appeal on March 29, 1994. However, the appellant stated that if the constitutional complaint were to be upheld, he would claim compensation for unjustified deprivation of liberty. With this he satisfied the requirement of standing for a decision on the constitutional complaint, irrespective of whether he would actually win his compensation claim. 7. In the contested resolutions the courts stated that the appellant had been tried and punished several times for criminal offences against property. As a juvenile he was placed under strict supervision and sent to a correctional institution. At the time the decision on detention was made, he was in a preparatory procedure due to a criminal offence of grand larceny and theft. The plaintiff is allegedly a special recidivist. The hazard of him committing crimes was allegedly increasing. The plaintiff was unemployed, and the money given to him by his parents was obviously insufficient for his needs. Based on these circumstances, the court drew the conclusion that there was a hazard of reiteration of criminal offences against property. 8. In its decision on the constitutional complaints against the detention order, the Constitutional Court stressed several times that each time a court decides on detention it must evaluate whether the constitutional and legal conditions for ordering or extending detention exist, and give a satisfactory explanation of its decision. Immediately after it has evaluated the danger of reiteration of criminal offences (detention order due to the hazard of reiteration) the court must in each resolution (1) establish and list those actual circumstances forming the basis on which the conclusion can be drawn from real life experience that there is a real danger that the defendant may reiterate specific criminal offences, (2) pass a resolution complete with reasons stating whether the hazard of reiteration of a certain criminal offence could endanger society, and (3) pass a decision complete with reasons on whether the protection of society is in danger to such a degree that it offsets the interference with the right of the defendant to personal freedom (see resolutions Up-57/95, Up-74/95 and up-75/95, all of July 7, 1995). 9. In the matter in question the Constitutional Court evaluated whether the hazard of reiteration of certain criminal offences may present a danger for the protection of society and, if so, whether the ordering or extension of detention is in proportion to the evaluated danger to people's safety. On the one hand it evaluated the danger of possible future interference with the safety of individuals which would have existed had the appellant been free, and on the other it evaluated the freedom of the plaintiff and the consequences of depriving him of his liberty. 10. In its Decision U-I-18/93 of April 11, 1996, the Constitutional Court ruled on the constitutionality of Item 3 of Paragraph 2 of Article 201 of the Criminal Procedure Act (Official Gazette of the Republic of Slovenia, no. 63/94). In its explanation it stated that the reasons explaining the decision also apply to the provision contained in Item 3 of Paragraph 2 of Article 191 of the ZKP-77, on the basis of which the detention of the appellant was ordered. The Constitutional Court took the position that criminal offences against property cannot be precluded in advance and in general terms from the content of the notion "protection of society" under Article 20 of the Constitution by claiming that in no way can they present a danger to people's safety. The constitutional norm which, with the permission of detention as an exception, restricts the right of the defendant to personal freedom, must also be seen as a constitutional norm which should guarantee respect for the constitutional right of others to safety (in addition to personal dignity), as provided for by Article 34 of the Constitution. Too narrow an interpretation of the term "protection of society" under Article 20 of the Constitution could lead to too narrow an interpretation of the term "of the individual" under Article 34 of the Constitution, where this term is no longer an element of a norm that restricts a right but an element of a norm that guarantees a right. On the other hand, in the evaluation of the Constitutional Court, this means that the hazard of reiteration of criminal offences against property as a rule cannot offset the interference with personal freedom, unless serious criminal offences with elements of interference with the most important, constitutionally-protected goods of other people are involved. 11. The appellant was tried in criminal proceedings due to the probable cause that he had committed two criminal offences of grand larceny (Penal Code of the Republic of Slovenia, Official Gazette of the Socialist Republic of Slovenia, no. 12/77, 19/84, 47/87, 33/89 and 5/90 - hereinafter: the KZS-77). In the first case he allegedly smashed a window display and stole various gold items and two silver-plated hand guns worth a total of SIT 562,157. In the second case he allegedly broke into a car worth SIT 937,500 and caused an accident in the Republic of Croatia. From the contested resolutions it follows that the appellant was tried for criminal offences against property while still a juvenile and that at the time the contested resolutions were passed criminal proceedings for theft (Paragraph 1 of Article 165 of the KZS-77) and the criminal offence of grand larceny (Paragraph 1 of Article 166 of the KZS-77) were in progress against the appellant. 12. The Constitutional Court established that during his detention there was a real danger that if not detained the appellant would have reiterated the criminal offences, and that in so doing he could endanger the most important constitutionally-protected goods of other people. This demonstrated the absolute necessity of detention in order to ensure the protection of society. 13. The Constitutional Court found that the contested provisions did not violate the appellant's right to personal freedom under Article 19 of the Constitution. C. 14. The Constitutional Court passed this Resolution on the basis of Paragraph 1 of Article 59 of the ZUstS, at a session composed as follows: Dr. Tone Jerovšek, President, and Judges: Dr. Peter Jambrek, Matevž Krivic M.Law, Janez Snoj M.Law, Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič. The Resolution was passed by six votes to three. Judges Krivic, Snoj and Testen dissented. Judges Krivic and Testen wrote dissenting opinions. President of the Constitutional Court: Dr. Tone Jerovšek |
Type of procedure: |
constitutional complaint |
Type of act: |
other acts |
Date of application: |
27.01.1993 |
Date of decision: |
18.04.1996 |
Type of decision adopted: |
decision |
Outcome of proceedings: |
dismissal |
Document: |
AN01151 |
