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The Rule of Law and the Challenges to Jurisprudence

Selected Papers Presented at the Fourth Central and Eastern European Forum for Legal, Political and Social Theorists, Celje, 23–24 March 2012


Edited By Péter Cserne, Miklós Könczöl and Marta Soniewicka

Over the last two decades scholars and citizens in Central and Eastern Europe had more than enough opportunity to realise that neither democracy nor the rule of law can be taken for granted. Such a realisation also means that if they want to think and speak clearly about or take a stand for their political and legal ideals, they need to reflect on them constantly, and conceptualise them in novel ways, by questioning entrenched lines of argument and problematising established patterns of thought. The contributors of this volume discuss a wide range of subjects from jurisprudential methodology and legal reasoning through democracy and constitutional courts to rights and criminal justice, raising questions and suggesting new ideas on «The Rule of Law and the Challenges to Jurisprudence» in Central and Eastern Europe and beyond.
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Introduction of Criminal Law Powers in Other Legal Procedures: A Convenient Bypass for Obtaining Evidence?


Sabina Zgaga


In Slovenian law, several new types of non-criminal legal procedure against criminal conduct have been introduced recently. This paper analyses the powers Slovenian Police can exert in the procedure provided for by the State Border Control Act (SBCA). These powers are rather similar to those of the criminal procedure. Similar rules apply also to Slovenian Customs under the Custom Service Act (CSA). Conditions for the exercise of these investigative powers in border and customs procedures are less strict and can enable the police to bypass the stricter regulation of the Criminal Procedure Act (CPA). The main focus of this paper is on the question whether such powers and their regulation is contentious from the viewpoint of the Constitution of Slovenia, if such an extension of criminal law powers weakens human rights protection, and whether evidence, obtained according to SBCA or CSA can be used in criminal procedure.

The first part of this paper discusses the powers of the Slovenian police granted by these leges speciales. The second part focuses on the constitutional regulation of relevant human rights (protection of dwellings and the right to privacy and personality rights) and the potential issues that arise from the constitutional viewpoint in Slovenia or some other jurisdictions (USA and the European Court for Human Rights). The third part compares these regulations with their counterparts laid down in the CPA, and offers an answer to the question as to whether and under which...

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