The Minor Offences Act (ZP-1) stipulates that the decision of the criminal authority not to issue a decision on a misdemeanour or to file an indictment, which is merely recorded in the file, is made known to (only) the proposer, but not the alleged offender. The ZP-1 refers to the reasonable application of the General Administrative Procedure Act[1], with regard to the service in the expedited procedure of the misdemeanour; therefore, in the Ombudsman's opinion, in accordance with the provisions of the General Administrative Procedure Act (ZUP)[2], the alleged offender should also be informed of the termination of misdemeanour proceedings, when they are aware that misdemeanour proceedings are pending against them. The criminal authority did not do this in the case of the complainant, and the Ministry of the Interior (MNZ) assured that it was an isolated case of deviation from normal practice.

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A complainant informed the Ombudsman that a person known to them had proposed to the Ljubljana – Vič Police Station (criminal authority) to initiate misdemeanour proceedings against her. The criminal authority asked her to make a statement about the facts and circumstances of the offence, which she did. It was only after viewing the file at the criminal authority that she later found out that the misdemeanour proceedings, in respect of which she, as the alleged perpetrator, had already given a statement about the facts and circumstances of the misdemeanour, had been completed without issuing a decision on the misdemeanour.

In response to the Ombudsman's inquiry, the MNZ explained that the criminal authority concluded the proceedings on the basis of the statement of the complainant and other evidence with an official note on the non-initiation of proceedings based on Paragraph 4 of Article 51 of the ZP-1, but did not inform the complainant of this, because the ZP-1 does not specify this. According to the MNZ, by not issuing a decision on the misdemeanour, the criminal authority should inform the complainant, although this is not explicitly stated in the ZP-1.

The Ombudsman agreed with the opinion of the MNZ that the complainant should have been informed of the conclusion of the misdemeanour proceedings in this case, but not with its reasoning. However, it is true that in Paragraph 5 of Article 51, the ZP-1 explicitly states that, by not issuing a decision on a misdemeanour and the reasons for such a decision, the criminal authority must inform (only) the initiator of the misdemeanour proceedings, while among such notification obligations, the ZP-1 does not explicitly specify the alleged offender. However, this notification duty is determined by law. In the Ombudsman's opinion, the fact that the complainant will not be issued a decision on the misdemeanour in the mentioned case, she should have been informed in accordance with the provisions of the General Administrative Procedure Act (ZUP)^[3], which are also applicable in the expedited misdemeanour proceedings. In fact, the complainant was informed by the notification that she was to declare the facts and circumstances of the offence that misdemeanour proceedings against her were ongoing, but she was not informed that it had ended. The Ombudsman informed the MNZ of his position, which is consistent with the commentary to Article 51 of the ZP-1^[4], and additionally checked how this and other criminal authorities under the jurisdiction of the MNZ act in similar cases.

The MNZ agreed with the Ombudsman's position and this time also only referred to Article 87 of the ZUP. The announcement also stated that after examining cases where the criminal authority decided not to issue a decision on the misdemeanour and ended the misdemeanour proceedings with a note in the file, it concluded that, in addition to the person instigating the misdemeanour proceedings (to whom the ZP-1 expressly refers in Paragraph 5 of Article 51) all criminal authorities under the jurisdiction of the Ministry of Justice also inform the alleged offender. According to the MNZ, the absence of such a practice of notification occurred only in the case of the complainant and is not a systemic error. Nevertheless, the MNZ has guaranteed that in the light of ensuring transparency and unified treatment in the misdemeanour proceedings, all criminal authorities operating within the jurisdiction of the MNZ will be reminded once again to consistently inform all participants in the misdemeanour proceedings about the end of the proceedings and the reasons for such a decision. The Ombudsman assessed the complaint as well-founded. Taking into account the assurance of the MNZ, it also expects that a similar case of not notifying the alleged violator will not be repeated. 1515.5-11/2023

[1] Paragraph 1, Art. 58, ZP-1.

[2] Art. 87, ZUP.

[3] General Administrative Procedure Act (Official Gazette of the RS, no. 24/06 – official consolidated text 105/06 - ZUS-1, 126/07, 65/08, 8/10, 82/13, 36/20 - ZZUSUDJZ, 61/20 - ZZUSUDJZ-A, 175/20 - ZIUOPDVE, 203/20 - ZIUPOPDVE, 3/22 - ZDeb).

[4] Minor Offences Act with commentary, GV Založba, 2018, in comment k Article 51 ZP-1, item. 5.1.:

“Although the law does not specifically stipulate the obligation of the criminal authority to notify the alleged infringe, his legal representative, or defence attorney of its decision to terminate the misdemeanour proceedings, this follows from the provisions of the ZUP on service, which, according to the provision of Paragraph of Article 58 they apply mutatis mutandis in the misdemeanour proceedings before the criminal authority (Article 87 of the ZUP in conjunction with Paragraph 1 of Article 58). This duty is also related to the right of the defence counsel, who may, no later than three months from the date on which the decision was communicated to him, submit a claim with information on the amount of the costs of the procedure that has been completed (Paragraph 3 of Article 145 in conjunction with Paragraph 2 of Article 58).”