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The approved amendment to the criminal code weakens the rule of law and the fight against corruption

Source of foto: TASR

Coalition MPs today passed the amendment to the Criminal Code by a majority of 78 votes, despite opposition from a large number of experts, domestic and international institutions and the general public. This will be followed by the announced veto of the President, its overriding in Parliament, and submissions to the Constitutional Court. Nevertheless, Slovakia is now very close to a revolution in criminal policy, the impact of which is difficult to predict. In the last few hours of the debate, this was best demonstrated by the emotive debate on shortening the statute of limitations for rape or the possible statute of limitations for the murder of Daniel Tupý.

However, radical changes without examining the readiness of Slovak society for them raise great concerns about the impact on the quality of the rule of law, its ability to punish perpetrators of live crimes and its capacity to combat corruption. Hundreds of objections to the amendment have already been published; we summarise in ten points at least the most important ones why this is a step in the wrong direction for Slovakia.

1. A fundamental change in the state’s criminal policy was pushed through powerfully in a fast-track legislative procedure, without proper expert discussion. Several weeks of debates by Members of Parliament in Parliament have not replaced the proper commenting process by a wide range of experts and other institutions. Meanwhile, a draft by former Minister Viliam Karas, on which there was broad expert consensus, has been in the drawer of the Ministry of Justice for almost a year.

2. The amendment abolishes the Special Prosecutor’s Office, which is responsible for investigating corruption and serious organised crime. The change comes at a time when the SPO has a track record. As an analysis of convictions published by Transparency has shown, up to 95 percent of corruption cases that the Special Prosecutor’s Office has referred to the Specialised Criminal Court in recent years have resulted in convictions. Bigger fish are finally being brought to court, which supports arguments about the sensibility of specialisation and independence of these bodies. The coalition justifies the need for change on the grounds of the politicisation of the prosecutor’s office under the leadership of Daniel Lipšic, who has offered his resignation to ensure that the SPO survives the attempted abolition. Prime Minister Robert Fico himself claimed before the elections that he did not want to abolish the Office.

3. The transfer of corruption cases to regional prosecutors’ offices and the announced abolition of the National Criminal Agency will weaken specialisation and reduce the state’s ability to investigate and punish corruption and other serious crime.

4. Even after the coalition’s forced amendments, the amendment substantially reduces the rates for a large proportion of offences, which, combined with the increase in the level of damages, the expansion of the possibility of imposing suspended sentences and the shortening of limitation periods, is a significant risk to the state’s ability to effectively ensure justice and the safety of the population, as well as to effectively punish economic offences. The combination of these changes also brings limited investigative options for law enforcement. The punishment of corruption will be considerably more lenient than today, the possibility of conditions even for grand corruption over 650 thousand was only taken out by the coalition after massive criticism through a last-minute parliamentary motion.

5. A number of changes are proposed without impact analyses, and one can expect substantial and often unthought-out impacts on the application practice of law enforcement authorities. Some changes may lead to prolonged court proceedings. A significant part of the courts’ decision-making practice will also have to change, as the existing reasoning will not be consistent with the new legislation.

6. The government’s arguments for substantially reducing sentences are often questionable or misleading. It is true that many criminal rates are indeed lower in Germany, Austria or the Czech Republic. However, such selective reasoning does not take into account the seriousness of the problems of different countries with different types of crime, nor other socio-economic differences. Moreover, in order to make a relevant comparison, it is necessary to consider the overall setting of the criminal codes, which are conceived differently in Germany or Austria.

7. The argument of equivalence to foreign countries does not even fit in several respects. For example, the proposed leapfrogging of the level of damages in our country, on which the penalties are based, will often result in significantly less stringent regulation than in the Czech Republic. In the case of corruption, for example, even the harsh penalties that fill prisons cannot be argued for at all. In Slovakia, less than five suspended sentences per year have long been handed down for corruption, while overall the courts impose suspended sentences in the thousands per year.

8. The Ministry of Justice has been involved in drafting changes to the penal codes, including people who have conflicts of interest, as they or their relatives face investigations that will be affected by the changes. These include attorney David Lindtner, who is accused of corruption in the Víchrica (Whirlwind) case, and Pavol Gašpar, the state secretary of the Ministry of Justice, whose father Tibor Gašpar is facing charges for police abuse in the Očistec (Purgatory) case. The last-minute amendments were submitted directly by the defendant Tibor Gašpar, who is now also a member of the Smer party.

9. Many international and domestic organisations, ranging from the European Commission, the European Public Prosecutor’s Office and the European Parliament, through the Transparency International Secretariat, to President Zuzana Čaputová, the Slovak Council of Prosecutors and a wide range of experts, have warned of the serious impact of such a change on the quality of the rule of law. Yet the coalition shows no interest in listening even to the objections of experts, including those with whom it has consulted on the changes. The reservations of the Prosecutor General Maroš Žilinka were partly reflected only in the proposal of Tibor Gašpar, which was presented only hours before the vote.

10. The wording of the amendment is also not shared by a large majority of the public. According to a recent representative poll by FOCUS for Transparency, over 77% of the population and even 69% of voters of coalition parties are against less severe punishment of corruption. Tens of thousands of people have been protesting in the streets for weeks against the changes, and tens of thousands have also signed petitions to protect the rule of law.

At Transparency, we believe that these are such serious objections, with implications for years or even decades, that we are again calling on the political representation to stop the amendment as it stands today before it takes effect, and to return to the standard legislative process and professional debate.

Slovakia undoubtedly needs adjustments in criminal policy, but not an ill-considered revolution that could pose a real threat to the security of the population. Even if laws are passed by the ruling political power, penal policy will always be the most fundamental form of punishment on which there should be society-wide agreement. However, there is certainly no such agreement on the changes being adopted. On the contrary, it is dividing society even further, despite the declarations of the Government’s programme statement to the contrary.

Michal Piško, Ján Ivančík

Translated with (free version)