Abolition of the Special Prosecutor's Office in Slovakia: Violation of the Rule of Law in the Name of Protecting Human Rights?

The abolition of Slovakia’s Special Prosecutor's Office comes amidst a political power shift. But despite questions about the Government’s motivations, and the use of the shortened legislative procedure, the process seems to have aligned with the Constitutional Court’s jurisprudence. Nevertheless, questions remain about the broad criteria for the fast-track legislative procedure, and its adherence with principles of democracy and rule of law – writes Marek Domin 

On 8 February 2024, Slovakia’s unicameral parliament approved controversial reforms to abolish a special prosecution office dealing with high-level crime, provoking domestic and international criticism. The origin of this change dates to the September 2023 early parliamentary election, which ended a several-month political and constitutional crisis in Slovakia, and also brought about fundamental changes in power. Representatives of the previous opposition won the parliamentary majority. Practically immediately after its appointment, the new Government headed by Robert Fico embarked on several legislative changes. There was a discussion about changing the electoral system, which is possible only through an amendment to the Constitution, and also the abolition of the Special Prosecutor's Office (SPO). The latter proposal received the most attention, sparking street protests organized by the opposition. Although the new governing majority tried to argue factual reasons in favor of the abolition of the SPO, it could not convincingly refute the perception that the primary motive was to influence the prosecution of its “own” people. However, the issue was not only the abolition of the office itself, but above all the way in which the new majority tried to abolish the SPO.

The aim of this piece is not to evaluate the necessity of abolishing the SPO, but to focus on the way in which the abolition took place. It will further examine whether this method can be evaluated as violating constitutional principles. As will be explained further below, the problematic and constitutionally questionable shortened legislative process, which was used to abolish the SPO, has unfortunately become symptomatic for Slovakia.

The Special Prosecutor's Office and Public Prosecution in Slovakia

At the beginning, it is appropriate to provide a few words about the SPO and public prosecution in the Slovak constitutional system as a whole.

The Constitution pays little attention to public prosecution. Chapter 8, which also regulates the institution of the ombudsman, mentions the public prosecution in only three short provisions. The task of the public prosecution is to defend rights and interests of natural and legal persons protected by law, as well as those of the state (Art. 149). The General Prosecutor is the head of the public prosecution, appointed by the President of the Republic on the proposal of the National Council, which is the Slovak parliament (Art. 150). Finally, the Constitution outlines that the specifics of how the public prosecution operates are to be determined by legislation passed by the National Council (Art. 151).

The Law on the Public Prosecution, adopted on the basis of the Constitution, defines the public prosecution as a system of hierarchically organized state bodies headed by the General Prosecutor. Since 2004, the SPO has been a part of the General Prosecutor's Office. However, in terms of personnel and powers, the SPO had relative independence. The SPO was headed by the Special Prosecutor, who was not chosen by the General Prosecutor but directly elected by the National Council. According to the Law on Prosecutors, this position could be filled by an individual who had never previously served as a prosecutor.

In terms of powers, SPO prosecutors were tasked with criminal prosecution of offenses falling under the jurisdiction of the Specialized Criminal Court: mainly crimes of corruption and abuse of power by public officials. However, the SPO’s scope also included crimes related to criminal groups or property crimes that resulted in significant damage. To provide additional context, it is important to note that persons prosecuted by the SPO in recent years include politically exposed individuals. Among them was Róbert Kaliňák, current Minister of Defense and one of the key figures in the strongest governing party Smer – Social Democracy.

The Law Abolishing the Special Prosecutor's Office and the Process of its Adoption

The Government submitted the proposal to abolish the SPO to the National Council on 6 December 2023 as part of a broader package of criminal law reforms. This package also proposed the reduction of penalties for property crimes and crimes committed by public officials, as well as changes to the statute of limitations for prosecuting crimes. Additionally, the Government proposed that the bill be considered in the so-called shortened legislative procedure.

The Government’s justification for the proposed criminal law reforms centred on the need to make punishments more “humane”.

The Government’s justification for the proposed criminal law reforms centred on the need to make punishments more “humane”. Specifically regarding the SPO, the Government pointed to the unsystematic nature of that body, without parallel in other democratic European states, and instances of misconduct. It drew attention to decisions of the Constitutional Court (CC), which in several cases found that the SPO had violated the human rights of accused persons guaranteed both in the Constitution of the Slovak Republic and in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The CC identified violations of the right to a fair trial, the right to privacy or the right to own property.

The abolition of the SPO was ultimately approved through a shortened legislative procedure, an alternative and faster method than the standard procedure used in the National Council. This expedited process, as outlined in the Rules of Procedure Act, stipulates that in the case of the shortened legislative procedure other required deadlines may be bypassed, enabling a bill to be debated and a law approved within days, even hours. By default, the legislative process in the National Council lasts approximately two months, plus the preparatory process before the proposal is submitted to the parliament, the commenting procedure, which is mandatory for Government bills.

Pursuant to the Rules of Procedure Act, a bill may be debated in a shortened legislative procedure "under extraordinary circumstances". At least one of three following conditions must be met: (1) threat to basic human rights and freedoms, (2) threat to state security, or (3) threat of significant economic damage. Additionally, the Rules of Procedure Act also provides for the possibility of a shortened legislative procedure if required by a decision of the UN Security Council on actions ensuring international peace and security issued pursuant to the UN Charter. In the matter of the abolition of the SPO, a shortened legislative procedure was justified by the threat to fundamental human rights and freedoms, namely a threat to the right to personal freedom, the right to own property and the right to life. According to the Government, such threats were imminent if proposed changes, including the abolition of the SPO, were not adopted as soon as possible. However, even experts and scholars had not previously emphasized the need for the rapid abolition of the SPO, and the opposition questioned the inevitability of the threats claimed by the Government.

Finally, the National Council voted to discuss the proposal to abolish the SPO using the shortened legislative procedure. The parliamentary debate on whether this would happen, or whether the proposal would instead be debated via the standard legislative procedure, lasted from 8 January to 25 January 2024. That unusually long debate was caused by intentionally lengthy speeches delivered by opposition MPs in the National Council.

Shortened Legislative Procedure and Principles of the Constitution

The frequent use, and even abuse, of the shortened legislative procedure has been criticized by constitutional law scholars in Slovakia for a long time. This problem existed even before the CC, which has the constitutional authority to assess the conformity of laws passed by the National Council with the Constitution. As a rule, the CC assesses the compliance of the content of a law. However, neither the Constitution nor the implementing Act on the Constitutional Court explicitly addresses the (im)possibility of assessing the compliance of a process by which a law was discussed and approved in the National Council.

The Constitutional Court has already stated that failure to adhere to the conditions prescribed by law for the shortened legislative procedure could conflict with principles of the Constitution . . . 

Although the Constitution contains basic rules of legislative procedure in the National Council, it does not explicitly address the issue of the shortened legislative procedure. However, the CC has already stated that failure to adhere to the conditions prescribed by law for the shortened legislative procedure could conflict with principles of the Constitution (e.g., in the PL. ÚS 13/2022 ruling). Therefore, a gross or arbitrary disregard for the legal rules of the legislative process could result in a constitutional violation (e.g., PL. ÚS 26/2019), in particular of the principles expressed in Articles 1 and 2 of the Constitution. While the former guarantees the rule of law, the latter expresses the requirement for the legality of state power. Specifically, Article 2 emphasizes that state bodies can act only on the basis of the Constitution and in the manner determined by a law. The National Council, as a state body, is bound by this order.

However, the CC also expressed the opinion that a mere violation of the rules of a shortened legislative procedure is not enough to conclude that the adopted law is unconstitutional. There must be at the same time a violation that interferes with the rights of MPs as guaranteed by the Constitution, especially those from the opposition. The CC used the phrase "rolling the opposition", which means a situation where the ruling majority would not allow the opposition to comment on a bill under discussion even to a minimal extent. For unconstitutionality of the legislative process to be established, in the opinion of the CC, the opposition would have to be excluded from the legislative process contrary to requirements arising from principles of the rule of law and of a democratic state. The CC justified its approach with reference to similar approaches of other European constitutional courts (such as in the Czech Republic, Germany, Italy or Spain). The CC itself assessed its method as the "sober way", minimizing interference with the powers of the National Council. This restraint is suitable, especially with regard to the principle of separation of powers, on which the Slovak Constitution is built, but also in view of the fact that the National Council is the body with a stronger democratic legitimacy than the Constitutional Court.

The opposition’s engagement meant that the proposal to accept the shortened legislative procedure was discussed in the National Council for almost three weeks.

When applying the above requirements from the CC caselaw to evaluate the unconstitutionality of the shortened legislative procedure in the case of the abolition of the SPO, one could come to the conclusion that the established criteria were not fulfilled. Notably, the opposition’s engagement meant that the proposal to accept the shortened legislative procedure was discussed in the National Council for almost three weeks. This extended period of debate happened due to a large number of opposition MPs signing up for the parliamentary debate. This duration allowed not only a discussion on the shortened legislative procedure, but also created space for a discussion on the content of the proposed changes, including the abolition of the SPO.

Conclusions

Despite certain doubts about the true motivations for the Government’s proposal to abolish the SPO, the analysis leads to the following conclusion: in this particular case, the process of abolition did not violate constitutional principles of the rule of law and the legality of state power. This is true at least in alignment with existing caselaw of the CC.

However, is the current approach of the CC in evaluating the compliance of the legislative process with constitutional principles correct? One may also ask whether the conditions allowing for the shortened legislative procedure are sufficiently demanding. As already outlined, Slovakia has long grappled with the dubious shortened legislative procedure, and the attempt to abolish the SPO represents a continuation of this trend. Even during the period of the Covid-19 pandemic, which objectively threatened human lives, not all shortened legislative procedures were necessary.

Specifying the conditions for engaging in a shortened legislative procedure could be a future possibility. The current conditions are formulated very broadly, making it possible to subsume almost any measure under them. It is also worth considering the number of votes needed to approve a shortened legislative procedure. If truly extraordinary circumstances arise, they would likely garner support beyond a simple majority of MPs present, as is the case today. Since the ruling majority always uses the shortened legislative procedure to its advantage and it is an established trend, apparently the only impulse to tighten the requirements and to bring about real change would be a citizens' initiative to call a referendum that could rectify this law-making anomaly via legal or constitutional reform.

Marek Domin is Associate Professor of Constitutional Law at the Comenius University in Bratislava (Slovakia), Faculty of Law. He is also an external advisor to a judge of the Constitutional Court of the Slovak Republic.

♦ ♦ ♦ 

Suggested citation: Marek Domin, ‘Abolition of the Special Prosecutor's Office in Slovakia: Violation of the Rule of Law in the Name of Protecting Human Rights?’, ConstitutionNet, International IDEA, 26 February 2024, https://constitutionnet.org/news/voices/abolition-special-prosecutor-office-slovakia-violation-rule-law

Click here for updates on constitutional developments in Slovakia.