On 31 August 2021, General Prosecutor of the Slovak Republic (GP) Maroš Žilinka invoked Article 363 of the Code of Criminal Procedure to annul charges against former director of the Slovak Secret Service (SIS) and four other high-profile individuals held in custody due to corruption allegations.
What makes this action newsworthy is its context. The legality of the criminal charges was previously upheld several times by three different courts, including the Supreme Court and the Constitutional Court. The annulled charges were not brought by the GP but by the Special Prosecutor (SP) who has jurisdiction over corruption cases. Last but certainly not least, the GP was nominated by the same party (Sme rodina-ID) as the indicted former SIS director who also happens to be a brother and husband of two of the party’s MPs. The GP made use of the special remedy to annul the charges just days before the expiry of this option.
One power to rule them all
Article 363(1) of the Code of Criminal Procedure empowers the GP to annul police and prosecutorial decisions if it was illegal. The annulment must take place within six months of the disputed decision being taken. Crucially, there is no remedy against the GP’s annulment.
Article 363 was considered controversial already before the current GP used it to free corruption suspects in questionable circumstances. The government committed itself to explore narrowing down this provision in April 2020. The NGO Via Iuris recommended to MPs to ask GP candidates in November 2020 about their position on the use of Article 363. Unfortunately, Mr Žilinka was not asked about this provision during the public hearings. He did say, however, that he “strictly separates the personal and the professional” and that he is ready to tackle the “culture of safety and cosiness” that existed in the prosecution ranks in the past.
Whatever merits one can find in a provision like Article 363 – safeguard against rogue policemen and prosecutors? – it is difficult to find justification for invoking it after more than ten different judges across three different courts came to the conclusion that the criminal charges were legal. The GP and his powers under Article 363 – valid until 11 September – were at this point the only hope of the former SIS director (personally connected to a governing party) being released before possibly ending up sentenced for years in prison for taking a bribe.
The GP’s decision comes on the back of a broader campaign by Sme rodina to achieve the release of their former nominee, including by questioning and discrediting various actions of the police and the prosecution. It is impossible to avoid the impression that the GP’s use of Article 363 was a measure of last resort to free a man with unusually strong personal connections to the party that most strongly backed Žilinka for his post.
The rule of prosecutors
For all the wrong reasons, general and special prosecutors have been key figures in Slovak politics for over a decade. The former SP, Dušan Kováčik, was essential in successfully shielding governments led by SMER-SD (S&D) from corruption inquiries in the past. He is currently in jail on corruption charges. Former GP Trnka gained infamy for his embarrassing relationship with Marián Kočner, the alleged client behind the murder of Ján Kuciak and his fiancée. He is also currently awaiting trial. The only recent former GP/SP without an indictment hanging over him is Jaromír Čižnár who became GP following the unconstitutional refusal by former President Gašparovič to appoint another candidate in 2011-2012. Čižnár was “classmate and friend” of former PM Fico.
So the news about the apparent pliability of the sitting GP confirms Slovakia’s bad luck with prosecutors. Except that it is not bad luck at all – many Slovak politicians have clearly become accustomed to the GP/SP serving as a crucial line of defence against undesired effects of the justice system. The 7-year term conferred on the GP in a secret vote by MPs is meant to enhance his or her independence. In practice, the length of the term and near irremovability has more often than not protected the GP from accountability for their actions, while increasing the value of the GP “spoils” in backroom bargaining among political parties.