Statutory Term Knowingly: On Porosity of the Dividing Line Between the Subjective Side of Tatbestandsmäßigkeit and Guilt

In the article, the meaning and scope of the term knowingly as used by the Slovenian legislature in the special part of the Criminal Code is examined. After opting for the refusal of the thesis of redundancy of this statutory provision, the author focuses on answering the question of how the term knowingly impacts the understanding of the objectively-subjective concept of Tatbestandsmäßigkeit on one hand and the concept of guilt on the other. A broad set of fitting but contradicting theories regarding this problem suggest the answer is elusive and multi-faceted. It seems that in specific cases, the legislature’s intent was to reintroduce into Slovenian criminal law the theory of guilt, thereby changing the understanding of the general concept of an offence as it is laid out in the general part of the criminal code. In other cases, however, criminal law theoreticians argued that it emphasizes the demand for dolus directus on the part of the perpetrator. This article therefore aims at providing clear guidelines for legal theory and practice on how to cope with incriminations containing the statutory provision knowingly.