The International Comparative Legal Guide To: Business Crime 2012 - A Practical Cross-Border Insight Into Business Crime (Slovenia)

Previously published by Global Legal Group

1. General Criminal Law Enforcement

1.1 What authorities can prosecute business crimes, and are there different enforcement authorities at the national and regional levels?

Enforcement of criminal law and initiation of the criminal procedure in Slovenia depends on the type of criminal offence and is regulated in the Criminal Code (Kazenski zakonik, KZ-1) for each specific offence separately and in the Criminal Procedure Act (Zakon o kazenskem postopku, ZKP), which regulates the criminal prosecution. In general, enforcement of criminal law is entrusted to the Office of the State Prosecutor General, which is an independent State agency. Its hierarchical organisation into the State Prosecutor's Office, governed by the Attorney-General and District (regional) State Prosecutor's Offices, is mostly regulated in the State Prosecutor Act (Zakon o dr~avnem to~ilstvu, ZDT-1). There are no separate national or regional levels of enforcement authorities. Also, no special law enforcement agencies exist.

However, a special governmental Office for Money Laundering Prevention has some investigative authorities and may use them in case of criminal offences concerning money laundering. However, if the state prosecutor finds that there are no grounds to institute or to continue criminal proceedings, the injured party itself may assume prosecution. For some offences, the victim, functioning as the private prosecutor, may also initiate the procedure. Criminal offences with a predominant personal element may only be prosecuted upon the victim's motion to prosecute.

1.2 If there are more than one set of enforcement agencies, please describe how decisions on which body will investigate and prosecute a matter are made.

With regard to the state prosecution, the State Prosecutor Act sets forth the competent state prosecutor office which corresponds to the levels of the court organisation. The internal hierarchical structure is reflected in the right of the superior state prosecutor to take over an individual matter or task for which a lower-level state prosecutor is otherwise competent. Moreover, the Office of the State Prosecutor General decides on disputes over the jurisdiction that occur between District State Prosecutors' Offices and in the cases of transferral of jurisdiction to other territorial offices.

The newly amended State Prosecutor Act established a Specialized State Prosecution Office which is a continuation of the Group of State Prosecutors for the Prosecution of Organised Crime. It is exclusively responsible for the prosecution of criminal offences in the entire Slovenian territory which acquire special organisation and knowledge with the highest level of efficiency. This office is especially responsible for prosecuting criminal offences in the area of organised crime and business crime, terrorism and offences connected with corruption. In case of jurisdiction questions, there is a presumption of its competence. Similarly, a special unit for the prosecution of officers holding special powers, organised within the Specialized State Prosecution Office, possesses exclusive competence to prosecute criminal offences committed by state officials.

1.3 Is there any civil or administrative enforcement against business crimes? If so, what agencies enforce the laws civilly and which crimes do they combat?

There is no special civil or administrative enforcement against business crime. However, the Enforcement and Securing of Civil Claims Act (Zakon o izvrabi in zavarovanju, ZIZ) provides for the preliminarily security measures such as preliminary injunction or security. Such a security measure will be granted upon the party's request by the relevant court in case of a future possible monetary and also non-monetary claim in order to secure the future enforcement of a court decision, which would otherwise be uncertain. Furthermore, the Criminal Procedure Act also allows for the provisional securing of a monetary claim on the proposal of the claimant or the injured party, who holds a claim against a person in possession of the property acquired through the commission of a criminal offence.

A special enforcement is applicable in the case of seizure of instrumentalities and proceeds if there is a danger that the defendant could use these proceeds for further criminal activities or could conceal, alienate, destroy or otherwise make use of these instrumentalities. In such circumstances, the court shall, on its own authority, order temporary security measures upon motion of the state prosecutor.

2 Organisation of the Courts

2.1 How are the criminal courts in Slovenia structured? Are these specialised criminal courts for particular crimes?

The judicial system in Slovenia consists of courts with general and specialised jurisdiction. The former are hierarchically structured in three instances: local and district courts, which operate on the first instance; appellate/higher courts on the second instance; and the Supreme Court as the highest court in the State. On the other hand, the latter is comprised of four labour courts, a social court and a special Administrative Court.

Whilst no special criminal law courts exist in Slovenia, criminal cases are adjudged by the general courts. The composition of a criminal court in the first instance depends on the two decisive factors – the territorial element and the type of criminal act being adjudicated. Criminal offences of a less serious nature, which are punishable by a monetary fine or a maximum sentence of three years' imprisonment, apart from criminal offences against honour and reputation committed by the mass media, are allocated to the territorially-applicable local court and adjudged by a single judge. Criminal offences, where a sentence of imprisonment for more than three years shall be imposed, are designated to the district court in various compositions. Severe criminal offences are adjudged by a panel consisting of one presiding judge, a second judge and three lay judges; most criminal cases are heard by a panel consisting of one presiding judge and two lay judges and a single judge is responsible for the conduct of the criminal investigation.

2.2 Is there a right to a jury in business-crime trials?

Business-crime trials before the district court, where a sentence of at least three years' imprisonment shall be imposed, are tried by a panel of one professional judge and two lay judges.

3 Particular Statutes and Crimes

3.1 Please describe any statutes that are commonly used in Slovenia to prosecute business crimes, including the elements of the crimes and the requisite mental state of the accused.

Fraud and misrepresentation in connection with sales of securities Fraud and misrepresentation are criminal offences punishable under Article 211 of the Criminal Code (KZ-1). Moreover, on a more specific level, Article 231 KZ-1 also regulates fraud in securities trading. It is a criminal offence punishable with imprisonment to falsely represent the balance of assets, data on profits or losses or any other data, when trading stocks, other securities or other financial instruments. Such fraudulent behaviour should result in a purchase, sale, or any other transaction by a third person. Besides that, Article 244 KZ-1 incriminates fabrication and use of counterfeit stamps of value or securities. It is a criminal offence, punishable with imprisonment for one to eight years, to fabricate counterfeit securities or alter any security with the intention of using it as genuine or conferring it to a third person. Accounting fraud Several offences in Slovenian Criminal Code refer to the prohibition of fraud. Business fraud is, for instance, a criminal offence under Article 228 KZ-1. A person performing an economic activity is criminally liable if he or she defrauds another by misrepresenting the obligations or by concealing the facts, which results in the acquisition of a property benefits or which causes loss of property to a third person. Such offence must be committed intentionally. A more specific Article 226 KZ-1 regulates false bankruptcy, which means an intentional or actual worsening of a financial situation resulting in bankruptcy or striking a company off the register with the aim of avoiding payment of certain obligations. It is also forbidden to initiate a bankruptcy, with the purpose of defrauding creditors, by rendering insolvency through irrational spending of funds, delayed collection of debts, conclusion of detrimental contracts, transferral of property to other persons and reduction of the value of property. Article 227 KZ-1 further incriminates defrauding of creditors, which emerge when a person engaging in economic activities knowingly puts a certain creditor in a preferential position, thereby causing a large property loss to other creditors. Another provision is Article 230 which regulates fraud while obtaining loans or benefits. In this situation a false or incomplete data concerning the balance of assets, balance sheets, profits, losses or any other facts are disclosed in order to obtain the loan. A new Article 229 KZ-1 specifies the elements of a fraud to the detriment of the European Union. Insider trading Abuse of insider information in Article 238 KZ-1 is a special form of securities fraud. Whoever obtains insider information capable of influencing the price of securities or any other financial instrument and uses such information for him/her or any third person in order to acquire or dispose of such security shall be punished. It is also prohibited to communicate such insider information to an unauthorised person or, on the basis of such insider information, make recommendations to the third person. Moreover, acquisition of such insider information without authorisation is prohibited. For the purpose of this chapter insider information is information acquired in relation to the position a person is occupying in the issuing...