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The (un)constitutionality of the financial investigation as provided by the Financial Administration Act – a case study
Benjamin Flander, 2022, original scientific article

Abstract: Purpose: The article provides an in-depth analysis of the regulation of financial investigations under the Financial Administration Act (“Zakon o finančni upravi (ZFU)”, 2014) and the manner of implementing the regulatory framework of this instrument in Slovenia. It presents the conditions for the initiation of a financial investigation, along with the competence and authorisations of investigators, the status of a person under investigation, and the procedure and conclusion of a financial investigation. In the article we take the position that either the existing regulatory framework or the manner in which the regulatory framework of financial investigation is implemented is unconstitutional. Design/Methods/Approach: We applied the normative method, the analysis and synthesis method, and a case study. Findings: We claim that Article 100 of the “ZFU” (2014), which governs financial investigations, is not compliant with the Constitution or the manner in which this provision is implemented by the Financial Administration of the Republic of Slovenia, which also has support in courts’ decisions. The Financial Administration, the Administrative Court and courts of general jurisdiction interpret and implement Article 100 of the “ZFU”, in the section relating to the moment in which a financial investigation is completed and tax inspection proceedings begin, in a way that is not compliant with the explanation by the Constitutional Court of the Republic of Slovenia in decision No. U-I-69/22-4. Research Limitations/Implications: The research does not include a comparative analysis, i.e., an analysis of the regulation and practice of conducting financial investigations pertaining to infringements of tax regulations in other countries.
Keywords: Financial Administration Act, financial investigations, financial administration, constitution
Published in DKUM: 27.01.2023; Views: 402; Downloads: 9
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Analysis of the legal aspects of illegal asset recovery in Slovenia
Katja Rejec Longar, 2018, original scientific article

Abstract: Purpose: The aim of the study was to analyse the legal aspects of asset recovery in Slovenia through a five-stage asset-recovery process: financial investigation; freezing or seizure of assets; confiscation; enforcement of the confiscation order; and asset disposal. Design/Methods/Approach: EU and Slovenian legislation in the area of illegal asset recovery was analysed and compared. Using legal analysis, gaps and inconsistences were discovered and discussed. Findings: The Slovenian legal order provides relevant bodies with several avenues to recover ‘proceeds’ and illegally acquired assets. There is the traditional confiscation of proceeds, in personam confiscation in criminal proceedings, extended confiscation in criminal proceedings, and civil forfeiture pursuant to the Forfeiture of Assets of Illegal Origin Act. One problem is the related provisions are dispersed across both substantive and procedural law. Another problem is that some provisions are formulated in such a way that makes them impossible to apply in practice. It would be necessary to introduce a category of financial investigation in criminal proceedings. It is inappropriate that financial investigations are carried out under the provisions of civil law. Financial investigation must, therefore, become an essential part of all police criminal investigations of relevant offences, and holds the potential to generate proceeds. However, at the same time, law enforcement authorities must obtain a clear mandate that in the particular conditions they may investigate all assets of a suspect and not simply the concrete proceeds of crime. Practical Implications: The study findings are useful for preparing systemic changes in relation to the seizure of assets of illegal origin, also because the changes can be used to help establish an efficient way of organising the work of state bodies in this area. Originality/Value: The purpose of the paper is to comprehensively analyse all aspects of the seizure of assets of illegal origin. The results of the analysis substantially complement existing knowledge in the analysed field.
Keywords: financial investigations, illegal asset recovery, Forfeiture of Assets of Illegal Origin Act, law, Slovenia
Published in DKUM: 16.05.2020; Views: 1035; Downloads: 49
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