Zeitgeist No.1 (english newsletter)

The political situation in Slovakia has changed dramatically. Since the parliamentary elections in September 2023 and the formation of the new government consisting of two social-democratic parties, SMER-SSD, HLAS-SD, and nationalist party SNS, the institutions securing the rule of law and public control, including Slovak civil society, have been under constant pressure.

Slovakia still has relatively independent institutions and enabling legislative, financial, and institutional frameworks for CSOs compared to Hungary or Poland. The Fico IV administration, however, is planning massive changes in the structure of independent institutions. Therefore, we expect a radical shift in penal policy and public control during its term. This dramatic backsliding is experiencing a strong reaction from civil society organizations and the public.

A list of the amendments constituting a threat to the rule of law:

Quick subordination of police and control over investigations

One of the first steps of the Minister of Interior Šutaj-Eštok was a dismissal of the president and vice-president of the Slovak Police Force. He dismissed the former Police President Štefan Hamran two days before Hamran departed from the forces and reassigned him for those two days to a department 300 km away from his place of residence. This could be read as a clear signal from the minister to everybody in the police force that disobedience will be sanctioned. While the dismissal of the police president can be read as a manifestation of power, the dismissal of the vice-president was unlawful, as the minister needed prior approval from the Office for the Protection of Whistleblowers of Anti-Social Activity, which awarded the vice-president Kišš protective status. The court of first instance granted an interim decision to allow Kišš to continue to perform his duties. The minister immediately verbally threatened the judge, who rendered the decision, with disciplinary and criminal sanctions.

The Minister of the Interior took a similar step against six investigators of the National Criminal Agency of the Slovak Police Force (NAKA), who have also been awarded a status from the Office for the Protection of Whistleblowers of Anti-Social Activities. All of them were investigating the corruption of former public officials, many of whom were party members or nominees of SMER-SD. The reason for the dismissal was the manipulation of the investigation.

While the Office for the Protection of Whistleblowers has not taken away the status of the protected person, the Fico IV administration came out with a proposal for an amendment of the Act no. 54/2019 Coll. on the Protection of Whistleblowers of Anti-Social Activity, which proposes to add an exemption from the scope of specific provisions of the Act about the police corps and its members. The amendment will extinguish the legal protection previously granted to members of the police force, which can be considered a retroactive application of the law; the legislator makes no secret of the use of retroactivity in this amendment. After public pressure, the Minister of Interior announced a postponement of this legislation and discussion of this change.

Abolishment of Special Prosecution Office

The amendment of the Law on the Prosecutor‘s Office abolished the Special Prosecutor‘s Office (SPO), which has existed since 2004. The SPO handles cases connected to corruption and serious crimes, including those related to misusing EU funds. Investigations by the SPO have led to numerous convictions in high-profile corruption cases, many of which were linked to Fico’s ruling SMER-SSD. After the amendment, the prosecutors from this department can be separated from the pending cases, as the prosecutors are transferred to the General Prosecutor’s Office, while the files are transferred to regional prosecutor’s offices. Such a step may lead to delays in the investigation and failures since the regional prosecutors do not have any time to dive in cases and properly continue with any delays. The abolition of the Special Prosecutor‘s Office will take place on 20th March 2024. The amendment was adopted in a fast-track legislative procedure without any previous discussion.

The apparent aim of the change is to detach cases previously handled by the SPO from the prosecutors who supervised and represented them in the preparatory phase and court proceedings and to allocate them to other prosecutors.

Attack on independent institutions

The amendment of the competence act passed the parliament, first in December 2023 and again after the President’s veto in January 2024. The government of the Slovak Republic can now replace the heads of controlling bodies such as the Health Care Surveillance Authority, the Statistical Office of the Slovak Republic, or the Antimonopoly Office of the Slovak Republic. The former process anticipated the said appointments to be distributed among the President of the Slovak Republic, who appointed the heads on a proposal from the government, which the parliament must have approved. After adopting the amendment, the government will appoint the heads of these institutions on the minister’s proposal. Such a change will lead to direct accountability of the appointees to the executive power, reduction of the independence of these institutions, and increased politicisation. The party members of the ruling majority have already filled these positions. The president’s motion for constitutional review is pending at the Constitutional Court of the Slovak Republic.

The apparent aim of the change is to detach cases previously handled by the SPO from the prosecutors who supervised and represented them in the preparatory phase and court proceedings and to allocate them to other prosecutors.

Paradigmatic change in the penal policies of the state

The amendment to the Penal Code adopted in February 2024 in a fast-track procedure without consultations with experts and the public was extensive. It affected all of the criminal offenses in the code. While Justice Minister Boris Susko claimed the amendment primarily focused on crimes against property and economic criminal offenses, it also reduced penalties for corruption and criminal offenses against public safety and the environment, shortened statutes of limitations for all the crimes (including offenses against life, limb, or dignity), changed the position of cooperating defendants, and strengthened the protection of judges against the criminal investigation.

Moreover, it raised thresholds of damage that affect consideration between a criminal offense and a misdemeanor. The most questionable are changes of the threshold of the larger and substantial damage since it was raised by more than seven times (in the case of larger damage, which was initially starting at 2660 EUR, in the first draft of the amendment was proposed to start at 35 000 EUR, and after a considerable criticism it was as set to 20 000 EUR). It also raised the threshold of the rate at which a judge may impose a suspended sentence of imprisonment, and the proposed change obliges a judge to give preference to a sentence other than imprisonment. Questionable is also that many former representatives of the ruling coalition parties are investigated or prosecuted for this kind of criminality and will receive leniency.

The effect of many parts of this amendment to the Penal Code adopted in February 2024 were temporarily stopped by the Constitutional Court. However, the Court’s decision is ineffective due to delaying of the promulgation by the Ministry of Justice. If the amended Penal code enters in effect, it will mean a general pardon on many criminal offenses already committed, investigated, and prosecuted. The reason is that under existing legal practice, someone charged with a criminal offense is subject to the most lenient conditions that apply during the period that their case has been investigated and prosecuted.

Changes in the permitting procedures of public strategic investments

In the fast-tracked interministerial comment procedure, the Ministry of Transport of the Slovak Republic published the draft law on extraordinary measures for strategic investments. The outcome is an unprecedented power interference in property rights and the right to peaceful hold of one’s property. The bill significantly restricts in a hostile and unacceptable way the rights of local governments (municipalities, self-governing regions) to make decisions about their territory and ensure care for their territory’s all-round development. The bill contains several provisions and institutes that go far beyond the TEN-T Directive, are unrelated to the transposition, and even contradict the principles of the Directive (e.g., respect for urban and spatial planning). No gold-plating impact assessment has been carried out on these provisions. Without reasonable justification, the law elevates the interest in making public strategic investments above other legally protected interests, including the public interest in protecting the environment and its components and health, cultural monuments, and other public goods. The method of calculation and decision-making without discussion with stakeholders (including municipalities and the public) on what a strategic investment is (and thus, de facto, the prevailing public interest) is arbitrary.

Moreover, it raised thresholds of damage that affect consideration between a criminal offense and a misdemeanor. The most questionable are changes of the threshold of the larger and substantial damage since it was raised by more than seven times (in the case of larger damage, which was initially starting at 2660 EUR, in the first draft of the amendment was proposed to start at 35 000 EUR, and after a considerable criticism it was as set to 20 000 EUR). It also raised the threshold of the rate at which a judge may impose a suspended sentence of imprisonment, and the proposed change obliges a judge to give preference to a sentence other than imprisonment. Questionable is also that many former representatives of the ruling coalition parties are investigated or prosecuted for this kind of criminality and will receive leniency.

The effect of many parts of this amendment to the Penal Code adopted in February 2024 were temporarily stopped by the Constitutional Court. However, the Court’s decision is ineffective due to delaying of the promulgation by the Ministry of Justice. If the amended Penal code enters in effect, it will mean a general pardon on many criminal offenses already committed, investigated, and prosecuted. The reason is that under existing legal practice, someone charged with a criminal offense is subject to the most lenient conditions that apply during the period that their case has been investigated and prosecuted.

Attack on civil society organizations

A proposal of the Minister of Labour, Erik Tomáš, to change the civil society organizations’ funding system would create a distinction between „worthy in the eyes of the administration“ and „unworthy in the eyes of the administration. “ One of the first steps of the Minister of Labour in the office was introducing a plan to change the system of an assignation of 2% of tax revenue that can be awarded by the taxpayer to any civil society organization. As a result of the government’s announced change in the tax deduction system in favor of the parental pension, the non-profit sector might lose between 90 and 100 million euros per year. This would inevitably impact citizens’ assistance, as the third sector often replaces the state through various services. In the governmental program proposal, further steps are proposed by the administration against civil society organizations. It plans to establish a new state agency to redistribute subsidies to the non-profit sector, their cadre, “specific forms of monitoring,” limiting sources of revenue through a change in tax assimilation, or state-organized “public consultations” on policy issues.

The second stage of the attack on civil society organizations followed in March 2024, when the Justice Minister abolished a program for the support of human rights projects. This step of the minister has not been supported by the law, as he had no capacity to enter the ongoing process of evaluation of the projects.

The Fico IV administration does not target only civil society but also critiques from academia. Prime Minister Fico verbally attacked a student of Comenius University, Marek Janiga, who courageously stood at the head of hundreds of students who respectfully objected to the way Dean of the Faculty of Law, Eduard Burda, was dragging the entire faculty into the political battle to support Fico’s steps. The Prime Minister decided to abuse the legitimate demands of the students for a professional discussion with the dean from his position as Prime Minister and made Marek Janiga a target on his Facebook page. Such behavior from the PM may cause a chilling effect in the future.

Moreover, all of the mentioned bills are proposed in a fast-track legislative procedure, which is used in contravention of the law, and its purpose violates the rule of law. Submitting significant changes to the rule of law in a fast-tracked legislative procedure prevents any public debate on them, hampers the work of the bodies themselves, which have to adapt to sudden change at short notice, and effectively jeopardizes the fulfillment of their statutory tasks.

Just as a cherry on top, the Constitutional Court became a target of political attacks. Firstly, the Speaker of the National Council announced court-packing at the Constitutional Court of the Slovak Republic. The immediate reaction of the President of the Constitutional Court was disapproval. According to President Fiačan, the problem of the Court is not the lack of judges, and court-packing will not improve the situation. The court-packing strategies are used primarily in authoritarian regimes. This announcement of court-packing is paradoxical, because the very same Speaker of the National Council is delaying the parliamentary vote on the candidates to fill the empty seat at the court.

Secondly, when the Constitutional Court stopped the penal novelization to enter into effect, the Prime Minister harshly attacked the independence of the Constitutional Court. Fico publicly challenged the President of the Constitutional Court to step down and threatened him with dismissal, because of the premature leak of the part of the Court’s decision into media.