This thesis falls within the field of criminal procedural law and examines the role of the state prosecutor in Slovenian criminal proceedings. Throughout the thesis, I discuss the jurisdiction of the state prosecutor, focusing mainly on those which (at least in part) contain elements of a trial.
The dissertation is reasonably composed of two parts: the first part is theoretical and the second part presents the results of the empirical research. In the first part, I introduce separately the role of the state prosecutor and the role of the judge in the adversarial and continental systems. This is followed by a discussion of the principle of equality of arms and deviations from it, as deviations from this principle within the actions or jurisdiction of the state prosecutor signify shifts in the prosecutor's role towards adjudication.
I observe these in particular through those powers of the state prosecutor by which the state prosecutor determines the procedural position of the defendant. These instances include: a) when the state prosecutor formally conducts proceedings in which the defendant participates; b) situations in which the state prosecutor decisively shapes the procedural documents on which a particular decision is based; and c) situations in which the state prosecutor take decisions that affect the position of the defendant. The theoretical part thus serves as a foundation for the formulation of the empirical research.
In the second part, i.e. empirical research, I focused on three institutes: the deferral of prosecution under Article 162 of the CPA (Criminal Procedure Act), the penal order under Article 445a of the CPA and plea bargaining under Article 450a of the CPA.
Through a review of the prosecution files covered by the empirical research, I examined how the abovementioned powers of the state prosecutor manifest in practice. In the conclusion of the second part of the thesis, I also carry out a longitudinal study based on the data already collected, as derived from the Joint Annual Performance Reports of the State Prosecutor's Office from 2005 to 2020, which are published on the website of the Supreme State Prosecutor's Office of the Republic of Slovenia. Through this longitudinal study, I present the transformation of the thought process of state prosecutors, which is increasingly moving towards a judicial way of thinking, thereby resulting in a shift in the role of the state prosecutor over time. Given the circumstance that an increasing number of prosecutorial powers incorporate elements of a trial, in the conclusion of the second part I also address the independent and impartial decision-making of state prosecutors, as guarantees of a fair trial. I conclude the doctoral dissertation by providing an answer to the question of why we still perceive proceedings in which the figure of the prosecutor appears dominant as fair and responding to the question posed in the title: whether the prosecutor is an equal party in criminal proceedings or a judge wearing a grey robe.
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