Up-120/97

Reference no.:
Up-120/97
Objavljeno:
Official Gazette RS, No. 31/99 and OdlUS VIII, 126 | 18.03.1999
ECLI:
ECLI:SI:USRS:1999:Up.120.97
Act:
Constitutional complaint against Supreme Court judgement No. IV Ips-144/96-5, dated 6 Feb. 1997, in conjunction with Republican Penal for Violations No. Pp-1971/96, dated 6 Sep. 1996, and decision of the Violations Judge in Ormož No. P 404/96, dated 20 Mar. 1996

Violations Act (Official Gazette SRS, Nos. 25/83, 36/83 - corr., 42/85, 47/87, 5/90 and Official Gazette RS, Nos. 10/91, 13/93, 66/93, 39/96, 61/96 - dec. CC, 35/97, 73/97 - dec. CC and 87/97) (ZP), Arts. 79 and 113
Operative provisions:
The constitutional complaint against the Supreme Court judgement, in conjunction with the Republican Violations Penal decision and the decision of the violations judge in Ormož, is dismissed. Arts. 79 and 113 of the Violations Act are not inconsistent with the Constitution. The complainant bears his own costs of proceedings.
Abstract:
Since the complainant had filed an appeal against the challenged act and the competent body has decided upon it, the right to legal remedies (Art. 25 of the Constitution) was not violated.

Since the correctness of the court's findings on the existence of all elements of the allegedly committed violation concerns the evaluation of facts and not the principle of legality (Art. 28 of the Constitution), whereas the complainant only challenges the evaluation of facts, the principle of legality was not violated in his case.

Because the issue due to which the complainant was charged in violations proceedings is not complex, neither in factual nor in legal respect, and because other circumstances which would demonstrate that the complainant was not ensured the possibility of an effective defense, notwithstanding the fact that the complainant was not instructed on his right to be represented by a legal representative, the challenged decisions did not violate the guarantee of the equality in the protection of rights under Art. 22 of the Constitution, in conjunction with Art. 29 of the Constitution on legal guarantees in criminal procedure.

The duty of the body which conducts proceedings with regard to a violation to decide in a particular case whether the complainant should be instructed on the right to be represented by a legal representative for reasons of an effective exercise of the right to defense originates from the contents of the right to defense, prescribed by the Violations Act in Arts. 79 and 113. Thus, these two provisions, although they do not explicitly specify cases in which the competent body is obliged to instruct the defendant on the right to be represented by a legal representative, are not inconsistent with the guarantee of a fair proceeding concerning a violation committed (Art. 22 in conjunction with Art. 29 of the Constitution).

Whether the right to defense was respected in a particular case, it is an issue to be decided upon on the case-by-case basis.
Password:
Violations, constitutional procedural guarantees.
Right to legal remedies.
Principle of legality in criminal law.
Equality in the protection of rights.
Legal guarantees in criminal procedure.
Right to defense.
Right to the taking of evidence to the benefit of the defendant. Courts of proceedings.
Abstract review of a statute in constitutional-complaint proceedings.
Principle of linking issues.
Dissenting opinion of a Constitutional Court judge.
Legal basis:
Constitution, Arts. 22, 23, 25, 28, 29.2 and 3
Violations Act (ZP), Arts. 4, 24, 79, 113
Constitutional Court Act (ZUstS), Arts. 30, 34, 58, 59.1 and 2
Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
other acts
Date of application:
16.04.1997
Date of decision:
18.03.1999
Type of decision adopted:
decision
Outcome of proceedings:
dismissal
Document:
AN01797