|Abstract:||In the criminal law the expulsion of an alien was eliminated as a sanction with the adoption of a Penal Code of the Republic of Slovenia (KZ-1). According to the new regulation the expulsion can manifest itself in legal consequences of a conviction.
In misdemeanour law the expulsion of an alien is regulated as optional secondary sanction. For imposition of the sanction for expulsion of an alien only court is competent, which can and has the obligation of judging the compliance with all of the conditions and the circumstances of the case which are relevant for the expulsion of an alien – offender. In criminal law is this, according to the current regulation, the task of a legislator. The legislator shall decide which convictions for criminal offences and penalties are such that these convictions, without regard to the circumstances on the side of an alien – offender, justify causing of the legal consequences of conviction which result in expulsion of an alien from the country. In misdemeanour law the imposition of a sanction – the expulsion of an alien – is limited to more severe offences. Considering that the misdemeanour law in relation to citizens of Republic of Slovenia waive to sanctions by restricting the right of freedom of movement, it is necessary that the courts impose those sanctions restrictively. The court will be able to deliberate on potential reasonableness and proportionality of expulsion of an alien only after analysing the circumstances of a single case. The criminal law introduces obligatory expulsion. The legal consequences of conviction are result of the relevant law which regulates them. Without law regulations which should represent divergence from the basic features of the legal consequences of the conviction the circumstances of the case could not be considered. Except in some exceptional cases where the obligatory expulsion could be considered as appropriate, there should be given the possibility to consider the circumstances of the individual case and based on these circumstances, the reasonableness and proportionality of the expulsion of an alien from the country could be justified appropriately. It must be considered that the expulsion of an alien is a restriction of a freedom of movement which can have severe consequences for alien, especially in the case of strong integration in social environment in Republic of Slovenia. Therefore, an expulsion of an alien should be considered appropriately, especially when it is proportional and the circumstances of the case justify and require it. In the proceedings of expulsion of an alien from the country it should be considered that Slovenia is the EU member and that in EU one of the fundamental freedoms is freedom of movement. Expulsion of an alien, which has the right for free movement provided by the EU law, is therefore allowed only in exceptional cases as regulated by the same law. Expulsion of an alien is so permissible only on grounds of public policy, public security or public health, and if the personal conduct of the individual concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. By the consideration of these law concepts the restrictive policy is necessary. It must be considered that this measurement is a divergence from one of the fundamental principles of EU, in this case freedom of movement. The current regulation of expulsion within the misdemeanour law enables court, without breaching the national law, to additionally consider limitations which originate in EU legislation. EU member states citizens and their family members are to be exempt from Slovenian crime law regulation regarding expulsion, as this is in conflict with explicit requirements for justification to be based on the details of each case and that previous criminal convictions by itself could not be cogent reason for expulsion. When taking decision regarding an expulsion, special attention should be paid when the alien is juvenile person, refugee, applicant for asylum, stateless person, |