The individualization of punishment: Sentencing in Slovenia
| DOI | 10.1177/1477370812469858 |
| Author | Mojca M. Plesničar |
| Published date | 01 July 2013 |
| Date | 01 July 2013 |
| Subject Matter | Articles |
European Journal of Criminology
10(4) 462 –478
© The Author(s) 2013
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DOI: 10.1177/1477370812469858
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The individualization of
punishment: Sentencing in
Slovenia
Mojca M. Plesnicˇar
Institute of Criminology at the Faculty of Law Ljubljana, Slovenia
Abstract
Sentencing issues are discussed at length in common law systems, but discussions infrequently
include civil law systems. In an attempt to remedy this oversight somewhat, the article analyses
the sentencing system in Slovenia, a fairly typical civil law country. The basis of the sentencing
system is the concept of individualization of punishment, where proportionality is of the utmost
importance and is set first by legislation determining sentencing ranges for specific offences and
then by the judiciary aiming to narrow the ranges to an appropriate sentence in individual cases.
The system is far from perfect, especially on the procedural side, but it offers a valid alternative
to other sentencing solutions.
Keywords
Civil law systems, individualization of punishment, punishment, sentencing, Slovenia
Introduction
Slovenia is a small country that has long been part of the Central European legal reality,
retaining much of its Austro-Hungarian juridical legacy even through its 50-year social-
ist experience. With regard to criminal justice issues, it has relatively low crime and
imprisonment rates, but the latter has been growing rapidly in recent decades (Meško and
Jere, 2012).1
Sentencing is not a common research interest among Slovenian academics, some-
thing I fear is rather typical of civil law systems. Although at the international level the
issue is thoroughly scrutinized with regard to common law systems (for example,
Ashworth, 2010; Bagaric, 2001; Mackenzie, 2005; Tonry, 1997), much less attention is
paid to the approaches of civil law systems in addressing the same challenges. When
included in comparative studies, it is often limited to a handful of national systems
Corresponding author:
Mojca M. Plesnicˇar, Institute of Criminology at the Faculty of Law Ljubljana, Poljanski nasip 2, Ljubljana, S1-1000,
Slovenia.
Email: mojca.plesnicar@pf.uni-lj.si
469858EUC10410.1177/1477370812469858European Journal of CriminologyPlesnicar
2013
Article
Plesnicˇar 463
(Tonry and Frase, 2001; Tonry and Hatlestad, 1997). This is clearly an omission that
hinders our understanding of the different answers that sentencing questions receive in
different systems.
The present article offers an overview of the Slovenian sentencing system as a rather
typical civil law system in an attempt to slightly narrow this gap in knowledge. First,
some theoretical considerations on which Slovenian sentencing is premised will be dis-
cussed, followed by a comparative picture of the system, focusing on the statutory frame-
work. Next, the article will review questions in sentencing procedure and explore how
appellate review helps shape sentencing in Slovenia. Finally, the conclusion will draw
some general inferences about the system, while also taking into consideration the com-
parative perspective and the potential lessons to be learned.
Theoretical considerations
In order to understand sentencing in Slovenia it is essential first to briefly discuss some
theoretical underpinnings that differ from those in other continental systems, but espe-
cially common law systems. Three main concepts will be explored: individualization,
which is the underlining philosophy of the Slovenian sentencing system; the categoriza-
tion of sanctions; and, finally, the purposes of punishment and how they have changed in
recent years.
The individualization of punishment
The concept of individualization as established in Slovenia commonly exists in two
forms: first, as a process in determining appropriate sentences, and, secondly, as one of
the fundamental principles of criminal law (Bavcon et al., 2009).
The distinction can be confusing at times, but the former meaning is usually used
when addressing the broad entirety of the sentencing process, comprising the different
means of individualizing punishment at the legislative, judicial and penitentiary stages.
The concept, much like the one described by Saleilles (2001) in his seminal work on
individualization, takes into consideration different stages of decision-making prior to
and after sentencing (Roberts, 2009) and is somewhat similar to what Frase (2001: 260)
terms ‘pre-adjudication’ sentencing, sentencing strictu sensu and ‘post-adjudication’
sentencing.
In this vein, legal individualization comprises general and specific decisions with
regard to punishment made by the legislature, namely types and forms of criminal sanc-
tions, sentencing principles and statutory ranges, but also general decisions with regard
to policing, prosecution, etc. Judicial individualization is the next natural step in the
administration of punishment, and is what best corresponds to what is generally under-
stood as sentencing. In continental legal systems, it typically consists of the practical
application of abstract statutory rules to practical cases and will be discussed in more
detail below. Penitentiary (administrative) individualization is the last phase of the indi-
vidualization process and covers the actual administration of punishment, most com-
monly the administration of imprisonment sentences, but also includes early/conditional
release from prison (Bavcon et al., 2009).
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