LAWYER RESPONSIBLE – criminal law, criminal offences
We have collected some of the most common issues that customers face in connection with criminal proceedings and crimes. They were answered by a lawyer who also does his work in the field of criminal law, criminal offences. If you have any further questions, you can always contact us – contact details are provided at the bottom of the page.
The court gave me a suspended sentence. What does that mean?
A probation conviction is by nature a warning sanction. This means that the court does not actually give a penalty, but only sets it in the case of a parole conviction being revoked. However, a conditional conviction may be revoked if the offender carries out a new offence before the expiry of the ‘probation period’ set by the court (this period may not be shorter than one year and not longer than five years). The offender thus knows in advance what punishment he is facing in the event that he does not comply with the obligations imposed on him by the court in his judgment.
I’d like the court to give me a suspended sentence instead of a sentence. In what cases does the court do that?
The court will be able to impose a suspended sentence instead of a custodial sentence if the conditions laid down in Article 58 of the Penal Code are met.
The first condition, which must be satisfied, relates to the amount of the penalty to be determined by the court to the offender. This cannot be more than two years. Exceptionally, this may not exceed five years if the offender pleaded guilty when he first pleaded guilty to the charge or pleaded guilty in an agreement with the public prosecutor. It is therefore, in principle, to be relevant what penalty is determined by the court and not what penalty is imposed. However, it will also be important to be fined for those offences for which a sentence of at least three years is imposed. At this stage of the proceedings, the criminal law lawyer must present your rights well under the law, especially if the client is considering pleading guilty or entering into an agreement to plead guilty.
The second condition, which must be satisfied in order for the court to be able to give a suspended sentence, is related to the purpose of the probation. The court must be persuaded that the offender does not need to be punished for having committed an act that is less dangerous and that the warning will have a sufficient impact on him or her that he will not repeat the offences again. The court will therefore carry out an assessment of the offender’s future behaviour, in which he will assist with different criteria. These criteria include: the personality of the offender, the offender’s previous life, the behaviour of the offender after the offence has been committed, the degree of guilt, and other circumstances in which the offender has committed the offence.
In Slovenian case law, probation is the most commonly used criminal penalty, since more than half of the sentenced persons are handed out. A lawyer representing you in criminal proceedings will be able to advise you on the possibility of obtaining a suspended sentence.
A criminal law lawyer must be well aware of the criminal code and the Law on Criminal Procedure.
In my view, the pre-trial proceedings infringed the procedural rules on the taking of evidence. What evidence can be extracted and how do I achieve it?
One of the fundamental rules of criminal procedure is that a court may only rely on evidence which has been lawfully obtained. Among the tampering evidence the law counts:
– Evidence obtained in breach of constitutionally protected human rights and fundamental freedoms (constitutional rights such as the prohibition of torture, the protection of personal freedom, the ordering and duration of detention, the presumption of innocence, etc.) are often infringed in criminal proceedings;
– Evidence obtained in breach of the provisions of the Code of Criminal Procedure (a specific example is Article 204 of the ZKP, which states that a judge may not rely on the confession of a person deprived of his liberty, but has not been ininsected of his rights);
– Evidence which, although obtained in a lawful manner, but on the basis of unauthorised evidence (so-called ‘fruits of a poisoned tree’).
If the court upheld any such unauthorised evidence, it commits a material breach of the provisions of criminal procedure, irrelevant whether, even without the use of unauthorised evidence, a completely identical decision would have been given.
Some examples of evidence that is tampering and must be excluded:
– Confession of a witness who has been raped by force, threat, or any other means of
– Hearing a person who may not be a witness,
– The hearing of the accused, where force or threat has been applied against him in order to achieve any of his statements or confessions,
– The hearing of the accused without the presence of his defence counsel, even though the defendant should be present.
Unauthorized evidence should have been ruled out by the attorney general before he starts a criminal prosecution, but that often doesn’t happen. It must exclude statements made by the accused before he has been in the doctor’s advice on the legal guarantees he has in criminal proceedings. The accused has the opportunity to review the extracted statements and to suggest to the investigating judge to exclude statements that have not already been ruled out by the prosecutor. Other evidence (e.g. house investigation minutes, minutes of questioning of a suspect) obtained in pre-trial proceedings must be eliminated by the investigating judge, which is not always the case. It is for this very reason that it is important that you are represented in criminal proceedings by a lawyer who will be able to review the criminal file and make a prognosis on which evidence is obtained unlawfully.
As a party to the proceedings, you can request the exclusion of minutes and other evidence until the end of the pre-trial hearing or, in the absence of such a hand, until the main hearing is due. However, this limitation does not mean that you cannot invoke the exclusion of evidence at a later stage (until the end of the main hearing), since the judge is obliged of his own motion to exclude unauthorised evidence and will thus have to assess your claim in substance.
The issue of the elimination of evidence is one of the most complex issues of criminal proceedings, so we advise and assist you in pursuing exclusionary claims.
Tempora mutatur et nos mutamur and ilis. – Times change and we do with them.
I committed an act that was criminally criminal, but I was not aware of my conduct. What are my options for asserting insanity?
If you did not understand the meaning of your act at the time of the wronging or were unable to control your conduct due to mental disorder or mental underdevelopment, then you were not sane when you committed the prohibited act. If you have not been sane, you are not guilty of your conduct and subsequently you will be given an acquittal. If you have committed a serious crime in a state of insanity
Let’s take a closer look at the conditions for asserting insanity:
1. Biological conditions of insanity: these are mental disorders and mental underdevelopment. Mental disorders include, for example, various psychosis and psychotic reactions (schizophrenia, manic depressive psychosis, etc.), as well as transient (temporary) conditions that can be caused by mental illnesses, neuroses, drugs and alcohol. With mental underdevelopment, we mean lessdevelopment in physiological terms and mental retardation due to causes in the environment.
2. Psychological condition of insanity: in the context of that condition, we wonder whether the offender was able to understand the significance of his act at the time of the offence and whether he was able to have his conduct in power. In order for the condition to be fulfilled, the answer to both questions must be in the negative.
It is only if both of the abovementioned conditions are met that insanity can be invoked in the proceedings. A criminal lawyer will be able to explain your rights and propose to the court an appropriate evidence to prove any insanity.
What is the role of a criminal law lawyer and what will I be better at if he represents me?
As a legal expert, the lawyer ensures that ‘equality of arms’ is ensured in criminal proceedings, since both parties (accused and public prosecutor) must be equal in the proceedings. The prosecutor has the entire state apparatus behind him, which makes him in a stronger position than the accused, who often does not even know his rights, nor does he know how to defend himself most effectively. However, a criminal law lawyer will have to make sure that you are not unlawfully or wrongly convicted of a crime, or will seek to keep the sentence as low as possible if convicted. In the event that you find yourself in criminal proceedings, we strongly recommend that you take a criminal lawyer, as this will ensure that your rights are enforced as far as possible.
For many years, the law firm Križanec has represented clients in the field of criminal law and criminal offences. For more information, you can contact us via email: info@odvetnik-krizanec.si or call us on + 386 41 534 931.
You can also read more about criminal law at the following link: CRIMINAL LAW