Rule of law: ‘risk of irreparable harm’ as a result of Slovakia’s proposed criminal law changes

Polly BotsfordMonday 15 April 2024

In a letter to the Slovakian justice ministry in February, Didier Reynders, the European Commissioner for Justice, described what might happen as a result of actual and proposed changes to the country’s criminal law. Reynders suggested that there was ‘a risk of irreparable harm […] to the financial interests of the [European] Union’.

The changes in question, put forward in December, include reduced sentencing for certain financial crimes, such as decreasing the penalty for asking for or accepting bribes, lowering the statute of limitations for offences and altering whistleblower protections. Further, Slovakia’s ruling coalition proposed closing the Special Prosecutor’s Office, an institution tasked with investigating and prosecuting corruption – and this has now taken place. The plans have drawn significant concern from the European Commission and could ultimately jeopardise EU funding to the country.

In autumn 2023, Robert Fico returned as Slovakia’s Prime Minister at the head of a coalition government. The proposed changes to criminal law were presented to the Slovakian parliament almost immediately afterwards. Moreover, the government used a fast-track legislative procedure to do so, which bypassed the usual consultative processes. Martin Provaznik, Vice-Chair of the Communications Group of the IBA European Regional Forum and a partner at bpv Braun Partners in Bratislava, says that ‘such rapid changes, on such serious issues, should be discussed properly, with consultation, involving stakeholders.'

Many of the proposals have, for now, been suspended while they are reviewed by the country’s Constitutional Court. However, the closing of the Special Prosecutor’s Office (the ‘Office’) went ahead in March. At the point of closure, it was handling serious cases of corruption, including investigations into members of Fico’s party.

The Office was also the ‘guardian’ of EU funds granted to Slovakia and was given wide-ranging powers to investigate and prosecute for any alleged misuse of those funds. By closing the Office, those safeguards may have been fundamentally weakened, argues the European Commission. Christian Wigand, the spokesperson for Reynders, tells Global Insight that ‘the Commission regrets the dissolution of the Special Prosecutor’s Office without the introduction of safeguards to ensure investigations can continue effectively,’ as this ‘could undermine the effectiveness of investigations, not least on offences that affect the EU budget. It also risks affecting the internal control system for the Recovery and Resilience Facility [an EU post-pandemic economic fund].’

The Slovak government didn’t respond to Global Insight’s request for comment. However, its position is reportedly that the reforms are needed to modernise the criminal code, and to provide what it argues would be greater fairness. Fico has been highly critical of the Special Prosecutor’s Office, which, he alleges, was ‘bullying’ and spreading ‘evil’.

There are sound arguments that the Constitutional Court should rule that the shortened procedures were not appropriate for these legislative changes

Martin Provaznik
Vice-Chair, Communications Group, IBA European Regional Forum

Some procedural areas of the revised criminal law are also now in force, as Radovan Pala, Advisor on Law and Justice to the Slovakian President, tells Global Insight. ‘They are important because they strengthen the rights of the indicted person’, says Pala. ‘In short, it will be harder and more time-consuming to prosecute and sentence people.’

Concerns over the proposed changes to Slovak criminal law were raised by Brussels in December when first introduced. Since then, there have been substantial behind-the-scenes discussions between Slovakia and the European Commission. These include Reynders’ letter to Slovakia’s Justice Minister, Boris Susko, in which the Commissioner urged him to suspend the dissolution of the Special Prosecutor’s Office. Susko’s office did not respond to Global Insight’s requests for comment.

In addition, the new European Public Prosecutor’s Office, which had been working closely with the Special Prosecutor’s Office in Slovakia, has sounded alarm that the reforms could lead to a number of investigations effectively being dropped. It issued a statement at the time, highlighting that they ‘minimise detection of potential fraud [on EU budgets] […] and could constitute a de facto amnesty in a substantial number of active investigations into fraud affecting the financial interests of the EU in the Slovak Republic’. Reportedly, around 20 high-profile cases could be affected. The European Public Prosecutor’s Office didn’t respond to Global Insight’s attempts to verify this number.

Currently, the European Commission is only discussing the matter with Slovakia. But there are a number of procedures and legal proceedings under EU legislation and treaty obligations that can be brought where there are potential threats to the rule of law. Perhaps the most persuasive are those rules that make EU funding conditional on certain rule of law standards being met. The Rule of Law Conditionality Regulation allows the Commission to suspend or reduce funding if an EU Member State has violated the rule of law, such as via its anti-corruption framework or justice system.

Similarly, rules governing the Recovery and Resilience Facility, a fund totalling €672.5bn over six years, mean that if a Member State doesn’t meet certain milestones and conditions, funding can be frozen.

The Slovakian government submitted written responses to the Commission in March which, Wigand says, it’s ‘now analysing.’ But, he warns, ‘we will not hesitate to take action to ensure respect of EU law and the protection of the EU’s financial interests, as necessary.’ At the same time, Slovakia’s Constitutional Court must decide whether or not the original government proposals are unconstitutional for having used the fast-track procedures. ‘There are sound arguments that the Constitutional Court should rule that the shortened procedures were not appropriate for these legislative changes,’ says Provaznik.

The tension regarding changes to the criminal law comes at a time of general upheaval for Slovakia. The new President-elect, Peter Pellegrini, holds contrasting positions to the outgoing president, Zuzana Čaputová, on issues such as the war in Ukraine. There’s also a new proposal relating to the media. Under a draft law put forward by the Slovak government, personnel within public broadcasting would be appointed by a council made up of members of parliament and the Ministry of Culture, potentially leading to more government control. Provaznik is pessimistic about what all this means for Slovakia. ‘I am afraid of where these proposals could lead, and this is the first step in dismantling all the things that we have built up as part of a modern, liberal democracy’, he says.

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