Another day, another amendment of the Penal Code (Zeitgeist 6.)

Not so long ago, July and August in Slovakia were known as the „cucumber season“. The reason for this title was simple. The most exciting thing happening in public space was a harvest of cucumbers. Since the Fico IV administration has been in power, we had to skip the cucumber season as the rule of law deteriorates daily.

The Slovak Constitutional Court has recently navigated significant controversies surrounding amendments to criminal laws and the judiciary, sparking widespread debate about the future of the rule of law in the country. Furthermore, the European Commission’s report highlighted Slovakia’s deteriorating rule of law, warning that legislative shortcuts and poor governance could jeopardize EU funding.

In tandem with these developments, the Fico IV administration has initiated moves to limit the role of civil society organizations in overseeing EU fund allocations, shifting decision-making away from NGOs. This has led to criticism from civil society representatives, who believe their partnership with the government is being diluted. Additionally, the Ministry of Justice has disbanded its analytical center, raising fears about the effectiveness of judicial reforms without data-driven insights. Overall, these actions reflect a broader trend of consolidating governmental power, raising alarms about the implications for democracy and transparency in Slovakia.

The Slovak Constitutional Court delivered a landmark ruling on one of the most contentious amendments in Slovakia’s history

The Constitutional Court published its decision PL.ÚS 3/2023 regarding amendments to criminal laws, explaining its arguments in detail. The main concern was the legislative process, as significant changes were approved through a fast-track procedure in parliament. The Court determined that the parliament violated procedural rules, lacking sufficient justification for this urgency. However, it concluded that this violation was not unconstitutional. The Court’s decision implies that laws can bypass thorough professional discussions as long as a parliamentary debate is allowed.

This formalistic view poses a danger to democracy, potentially reducing violations to rare extreme cases, like obstructing opposition discussion entirely. The Court’s decision, which did not deem frequent shortcuts in legislative processes unconstitutional, could have severe consequences for future legislative practices. It raises concerns about adherence to the principles of a rule of law state, mainly when evident legal breaches occur during significant policy changes. Notably, the Court acknowledged that the parliament did not meet the criteria for an urgent process as required by law, with the government’s reasons insufficient for expedited changes.

The Slovak Constitutional Court also upheld the abolition of the Special Prosecutor’s Office, deeming it compliant with the Constitution, despite it having investigated high-profile corruption, including cases involving the ruling coalition. The Court argued that the duties of the office would be seamlessly transferred to the General Prosecutor’s Office. Critics, including the opposition and former President Zuzana Čaputová, challenged the abolition, alleging it was politically motivated and aimed at undermining anti-corruption efforts.

The Court also ruled certain criminal law amendments unconstitutional, such as reopening plea bargains and using illegally obtained evidence to favor the accused. EU warns that the changes could harm Slovakia’s rule of law and lead to a loss of EU funds. Modifying penalties for corruption and other crimes remains particularly contentious, with claims they could increase injustice and corruption.

Rule of Law Report 2024 is out

The European Commission (EC) released its report on the state of the rule of law in Slovakia, revealing troubling findings. Out of the seven recommendations made last year, there has been progress on only one. Slovakia and Hungary are the worst performers among the 27 assessed countries regarding the rule of law. Contrary to the ruling party’s promises, conditions have worsened since they took power.

The report highlights no progress on several issues, including limiting the Prosecutor General’s power, media independence, and legislative processes. Experts noted slight improvements only in the physical safety of journalists. The EC closely monitors changes in Slovakia, citing recent political actions like premature dismissals in the judicial council. The Commission’s assessment is based on facts, criticizing the government for undermining effective investigations and legislative integrity.

Despite the closing deadline in February, the report caught the latest development in Slovakia and mentioned most of the rule of law backsliding cases that you could read in our Zeitgeist in the last six months.

Assignation of 2% of the tax revenue in danger once again

The Fico IV administration is sending a signal that they will return to the idea of suffocating civil society organizations by limiting private funding. The first proposal from the Minister of Labour, Erik Tomáš, appeared in November 2023; however, it was left after solid resistance from civil society organizations. Due to the unsuccessful consolidation of public finances, the administration opened the question of the assignation again.

Marcel Zajac, Vice-Chairman of the Government Council for Non-Governmental Organizations, expressed surprise at the Institute of Social Democracy’s proposal to radically limit legal entities‘ 2% tax assignment. The system of an assignation of 2% of tax revenue that can be awarded by the taxpayer to any civil society organization. This would inevitably impact citizens‘ assistance, as the third sector often replaces the state through various services.

Zajac criticized the proposal’s presentation, suggesting it misleadingly implies taking from wealthy foundations to give to the poor. In reality, assigned funds must be used transparently for public-benefit activities. He also noted that the current system motivates corporate philanthropy, with legal entities only able to assign if they already donate a portion of their profits. Zajac argued that while the government might save € 30-50 million, society would lose € 37-62 million in public-benefit activities. He hopes the government will recognize the societal benefits of the current model and retain it.

Ministry strikes back – revenge on the recalcitrant judges continues

Prime Minister Robert Fico and other government politicians have targeted Supreme Court Justice Juraj Kliment, mainly due to his role as a judge in prosecuting figures connected to past SMER-SD governments. Justice Minister Boris Susko announced a disciplinary proposal against Kliment following a European Court of Human Rights decision that found rights violations by Kliment’s panel.

Susko’s proposal, however, focuses on Kliment’s dealings with Marek Para, Fico’s advisor, who is alleging breaches of impartiality and judicial ethics. Susko criticizes Kliment for authorizing Para’s detention, his comments during the decision, and an interview explaining his actions, all of which Susko claims undermine public trust in the judiciary. Former Justice Minister Mária Kolíková compared these actions to those of controversial former Supreme Court president Štefan Harabin. The Supreme Administrative Court will hear Susko’s disciplinary proposal.

Another day, another amendment of the Penal Code

The Slovak Parliament held an extraordinary session to correct errors in the significant Criminal Code amendment. Minister Susko admitted that Slovakia would lose EU funds without passing the amendment. This marks the third significant correction of the new Criminal Code in a few months. The first correction addressed controversially shortened limitation periods for violent crimes, and the second was prompted by the Constitutional Court declaring parts of the amendment unconstitutional. 

The parliament had to fast-track changes to meet European Commission requirements. The SMER-SD party initially pushed the amendment through fast-track legislative procedures, bypassing standard interdepartmental consultations, resulting in a poorly drafted law needing multiple fixes. Despite parliamentary debate, it couldn’t replace the thorough review by professionals involved in the standard process. The failure to follow established procedures led to embarrassing errors and threatened the national budget, highlighting the need for proper legislative procedures.

Minister of Justice Boris Susko and Prime Minister Robert Fico.
photo: SITA

The Ministry of Justice does not need analytics; it will guess what is necessary

The Ministry of Justice has disbanded its analytical center after eight years, which Minister Boris Susko argues is merely an organizational change. However, many employees are leaving, and the center will no longer exist as a cohesive unit. This isn’t an isolated case in the public sector, with similar cuts affecting analysts at the Ministry of Defense, Ministry of Culture and other departments under the pretext of budget savings. While consolidating public finances is necessary, cutting back on data analysis could harm the state.

The European Commission highlighted the inefficiencies caused by unsystematic changes in its June recommendations. The analytical center at the Ministry of Justice has produced valuable insights, such as workload assessments for courts, judge allocation methodologies, and investment strategies. Decisions without such data evaluation risk being driven by emotions and politicization rather than effectiveness, damaging efforts to combat corruption. Analytical centers are crucial for identifying weaknesses and proposing systematic solutions.

Project Partnership with civil society is a joke

In the second week of July, the Fico IV administration approved a significant change regarding selecting representatives for committees overseeing EU funds, shifting this responsibility away from NGOs to the government’s plenipotentiary for civil society development. This decision surprised and angered NGO representatives, who argued it undermines the partnership principle outlined in Slovakia’s Partnership Agreement with the European Commission. Marcel Zajac, Vice-Chair of the Council for NGOs, condemned the government’s rationale, claiming it was based on false pretenses that the NGOs could not agree on nominations.

The government’s commissioner, Simona Zacharová, defended the move, citing challenges in finding qualified representatives knowledgeable about EU fund operations in the NGO sector. Slovakia has nearly €13 billion available in this new programming period, but the disbursement process has been slow. Historically, selecting NGO representatives was a collaborative process, ensuring diverse input, but the recent changes mark a radical shift in this practice. The new process excludes the NGO chamber. Zajac argues that this change diminishes the role of NGOs as partners in the process and suggests a potential bias toward selecting favored organizations.

Dismissal of all non-judicial members of the Judicial Council is finished

Since the parliamentary election in September 2023, half of the members of the Judicial Council have been dismissed, now including the representatives appointed by the President of the country. Nine council members have changed in the past nine months, primarily influenced by coalition and presidential nominations. The new administration replaced  Eva Mišíková, Katarína Javorčíková, and Ľudovít Bradáč before even gaining parliamentary confidence. Additionally, Alena Svetlovská (nominee of the Parliament) resigned in December 2023, while Ján Mazák was removed from his position as president of the Council before being dismissed alongside Andrej Majerník by the Parliament, leaving their seats vacant. Elena Berthotyová (nominee of the President) also resigned in November 2023, with President Čaputová nominating Tomáš Gábriš. Together with Lucia Berdisová, they both were recently dismissed by Peter Pellegrini, while another nominee, Lajos Mészáros, completed his term in June.

Based on the current legislation, it is impossible to speak of an illegal step; however, before the constitutional change in 2020, such step has often been objected by the Constitutional Court, and international organizations focused on the independence of the judiciary within the European Union and the Council of Europe.

Convicted former Special Prosecutor Kováčik was released from prison

Dušan Kováčik, a former special prosecutor, was released after Justice Minister Boris Susko suspended his sentence. Independent courts had legally convicted Kováčik for accepting a bribe of 50,000 EUR from a mafia boss and for repeatedly leaking classified information. The Supreme Court upheld Kováčik’s conviction, originally from the Special Criminal Court, reducing his sentence to eight years and a 100,000 EUR fine.

Kováčik’s appeal to the Constitutional Court failed, confirming his conviction. This conviction marked him as a symbol of a corrupt system aiding organized crime. Susko used a provision of the Criminal Procedure Code that allows temporary suspension of sentences in exceptional cases, but his decision was unprecedented. The procedure is typically reserved for clear errors, such as miscalculation of sentence duration. Despite these legal outcomes, Susko claimed the processes were politically motivated, without evidence, undermining judicial independence.

 Former Special Prosecutor Dušan Kováčik legally convicted for accepting a bribe of 50,000 EUR from a mafia boss and for repeatedly leaking classified information.
photo: Jakub Kotian, TASR

Subordination of culture continues

Culture Minister Šimkovičová dismissed the Director of the Slovak National Theater, Matej Drlička, and the Director of the Slovak National Gallery, Alexandra Kusá. These two dismissals raised tremendous disapproval in the cultural community and started public protests requiring the Culture Minister to step down. Matej Drlička, head of the Slovak National Theatre (SND), was abruptly dismissed by Culture Minister Martina Šimkovičová without prior communication or explanation. Drlička’s dismissal followed his recent award in France and was allegedly due to his criticisms of the Culture Ministry and being held accountable for a chandelier accident at the theater. Drlička’s dismissal sparked concern and confusion within the broader management team and among prominent cultural figures in Slovakia.

Political tensions arose following Drlička’s support of the public broadcaster RTVS protests and his defense of cultural independence against the SNS’s nationalist stance. After criticizing the dismissal of the national theatre director, Alexandra Kusá was also dismissed from her role as director of the Slovak National Gallery. Kusá was a director since 2010 and led the successful €79 million gallery renovation. However, under Minister Martina Šimkovičová, the Culture Ministry cited „unacceptable conduct“ during the renovation and claimed a conflict of interest related to her family’s business involvement. Despite these allegations, Kusá was criticized for insufficiently promoting Slovak culture at the Venice Biennale and allegedly ignoring local artists. Minister Šimkovičová, known for her ties to pro-Russian media, has faced backlash, with public petitions demanding her removal garnering significant support. 

Appointment of the Chief of the Secret Service

President Peter Pellegrini appointed Pavol Gašpar as the new director of the Slovak Information Service following a government-approved nomination. Formerly a deputy director with extended powers, Gašpar is the son of accused Smer MP and ex-police chief Tibor Gašpar. Gašpar has been unofficially stirring the Secret Service for months. It was another example of abusing the rules of the lawful process was bypassing former President Čaputová’s decision on the Chief of the Secret Service. Several weeks after Fico IV came to power, it sent several signals to the public discourse about their intention of proposing Tibor Gašpar for the Chief of the Secret Service. Tibor Gašpar, an indicted former police president, has been facing criminal charges.

Former President Zuzana Čaputová publicly proclaimed she would have a problem appointing a person under criminal charges. Amidst the controversy, the Fico IV administration put forward a new candidate-Pavol Gašpar, the son of Tibor Gašpar. However, this move only fueled the fire, as Pavol Gašpar was charged with giving a false statement and lying under oath. He was also suspected of providing a €60,000 bribe to police officers. Former President Čaputová declared that she would defer the decision of appointing Pavol Gašpar to the next president, who would assume office in June 2024. Fico IV administration amended the statute on the Slovak Secret Service. This revision shifted significant powers from the Chief to the Chief Deputy. However, the extent of Gašpar’s authority remained a mystery, as the Secret Service statute is confidential. 

Limiting the constitutional right of free access to information

The Ministry of Interior, in its proposal of the Critical Infrastructure Law, indirectly amends the Law on the Protection of Classified Information, introducing a new term – „limited information,“ effectively restricting the public’s right to information. State authorities can classify any information as „limited information,“ bypassing the Free Access to Information Act. This amendment could empower state officials to decide which information remains restricted, potentially undermining citizens‘ access. The broad definition of „limited information“ allows for arbitrary interpretation, raising concerns about arbitrary information classification by state agencies. 

The introduction of „limited information“ has nothing to do with implementing the EU directives on critical infrastructure resilience, as claimed, but rather stems from an unspecified request from national authorities. The presenters of the draft law on critical infrastructure admitted that they lacked statistical analyses of the information affected or the impacts of the change. The limited information proposal aims to simplify administrative processes but risks limiting fundamental rights to information access. The recommendation of the public watchdogs is to withdraw the proposal’s current form and address limitations systematically, based on collected data and assessing impacts on basic rights.

Attacks on the parliamentary opposition

Culture Minister Martina Šimkovičová, alongside Lukáš Machala, criticized the Milan Šimečka Foundation and its state funding, accusing it of benefiting from an „atypical“ contract with the Slovak Arts Council. The Foundation, which aims to promote a tolerant Slovakia and has run multicultural projects for 19 years, disputed claims of irregularities, noting ten other organizations secured similar contracts. Opposition leader Michal Šimečka, whose late grandfather inspired the foundation, dismissed the connections drawn by Šimkovičová and Machala, stressing his family has no ties to it.

The Foundation’s director, Veronika Fishbone-Vlčková, called for an apology, asserting the public benefit of their activities and refuting claims of misuse of funds. In response, Prime Minister Robert Fico accused the Šimečka family of misusing public funds, targeting opposition leader Michal Šimečka and non-governmental organizations linked to his family. Fico’s claims, presented with selectively chosen data, aim to divert attention from his ministers‘ unpopular decisions that have fueled mass protests.

Fico, moreover, threatens Šimečka with dismissal from the seat of the vice-speaker of the parliament. It is a constitutional tradition that this seat belongs to the representative of the opposition. Critics see Fico’s narrative as distracting from controversies like the suspension of Kováčik’s punishment and ongoing protests against Culture Minister Martina Šimkovičová. This is not the first attack on the strongest opposition party, Progresívne Slovensko, from the governmental representatives. The attacks intensified after the assassination attempt.

National Crime Agency is dissolved

Starting September, the National Crime Agency (NAKA) in Slovakia will be replaced by the Office for Combating Organised Crime, National Anti-Drug Unit and Anti-Terrorist Centre, impacting around 100 police officers. Despite initial plans to transfer over 600 staff, the European Commission intervened with concerns about Slovakia’s ability to investigate high-level corruption. Personnel changes were announced by the end of August, with officers to report to local and regional departments by Monday.

Ľubomír Solák, the police president, emphasized that relocation respects officers‘ residences and is based on trust rather than experience. NAKA, established in 2012, investigated high-profile corruption cases. Challenges remain, with about 26% of police positions unfilled, particularly in local departments. The dissolution was postponed due to EU concerns about maintaining effective crime investigations, including environmental crimes. After the dissolution of the Special Prosecutor´s Office, it is another specialized institution which was investigating crimes connected with the representatives of the ruling coalition parties.