Constitutional Right to Use Cash in Slovakia: A Real Tool of Protection or Pre-election Populism?

Marek Domin

Comenius University

Amending the Constitution of the Slovak Republic ("the Constitution") is a relatively frequent phenomenon. The most recent amendment came in mid-June, during the ongoing pre-election campaign for the parliamentary election to be held on 30 September 2023. The June Amendment was approved by the votes of 111 out of 150 members of the National Council (the Parliament), introducing the right to use cash in the Constitution. However, there was no expert discussion on the need to introduce such a new human right. Therefore, I will describe not only the content of the June Amendment, but also its goals and the wider political context of its adoption. I will also try to evaluate whether the June Amendment will be able to protect the right to pay in cash, or whether it is rather an ineffectual manifestation of pre-election populism.

Reasons for Introducing the Right to Use Cash

The explanatory report presents reasons that led the Parliament to adopt the June Amendment. We read that its aim is to ensure that payments in cash remain one of available options in the future when paying for the purchase of goods and the provision of services. In other words, the authors of the June Amendment want to stop any future attempts to eliminate the possibility of paying in cash. They relate the possibility of payment in cash to the right to privacy, but without any further explanation.

Other arguments include protection of low-income groups and various charitable organizations that finance their activities mainly from cash collections. The explanatory report deals also with arguments related to possible deterioration of young people‘s education in the field of financial literacy or to the threat of cryptocurrencies, which the proponents of the June Amendment contrast with cash.

Summarizing, the proponents of the June Amendment conclude their arguments in favor of introducing the right to use cash into the Constitution as follows: The right to pay in cash should be understood as an expression of a person's free choice to pay in cash, not because they cannot pay non-cash, but because  – for whatever reason –  they do not want to pay non-cash .

Content of the Right to Use Cash and its Permissible Restriction

The Constitutional Act of 15 June 2023, the June Amendment, supplemented the section of the Constitution devoted to economic, social and cultural rights with a new Article 39a. This article consists of three specific rights forming in their summary the right to use cash. At the same time, it creates a constitutional basis for possible restrictions of that right.

These three rights are (1) the right to make a payment for the purchase of goods or for the provision of services in cash with legal tender, (2) the right to make a cash transaction in a bank and (3) the right to give back cash as legal tender. As the authors of the June Amendment also state, the right to give back cash should practically ensure the realization of the first two rights. If the giving back of cash was not guaranteed, people and companies would probably not be able to use it even for payments.

The Constitution does not explicitly state to whom the right to use cash belongs. This issue is also not specifically addressed in the explanatory report. However, due to the wording of Article 39a, it can be concluded that the the Constitution guarantees the right to use cash  to everyone, ie, to every natural person, as well as to every legal entity.

The given brief description of Article 39a indicates that the right to use cash is not clearly formulated. Moreover, even greater confusion is caused by its possible restriction. As the right to use cash does not have an absolute character, the Constitution allows it to be restricted. The acceptance of a payment in cash can only be refused for proportional and generally applied reasons. However, both terms used, "proportional reasons" and "generally applied reasons", are very general and vague, and in the end they provide the legislator with considerable scope for restriction of the possibility of payment in cash. In addition, proportionality is a condition for restricting any human right, at least within the European Convention for the Protection of Human Rights and Fundamental Freedoms (to which Slovakia is a party), so the creators of the June Amendment did not actually say anything more concrete about possibilities of restricting the right to use cash by using the wording in such a way. "Generally applied reasons" is an even more vague and ultimately empty term. Consequently, I believe that the limits of restriction of the right to use cash, without further (binding) interpretation, ultimately provide the Parliament with room for almost any restriction.

We should also not forget that the right to use cash has been included among economic, social and cultural rights, in relation to which the so-called less strict proportionality test is applied, for example by Slovak Constitutional Court. For restriction of this category of human rights to be constitutionally compliant, it is sufficient that (1) the restriction is determined by law (test of legality) and that (2) this restriction serves a legitimate aim (test of appropriateness).

The third paragraph of Article 39a contains a norm establishing the conditions and restrictions of the right to make a payment for the purchase of goods and the provision of services in cash, as well as of the right to make a cash transaction in a bank, by an Act of the Parliament. One such  Act, the Act on the restriction of cash payments from 2012, already exists. This Act, among other things, prohibits cash payments in the case of an amount higher than 15,000 euro. So, if you want to buy, for example, a Volkswagen Golf, you cannot pay for it with cash.

Conclusion

Only time will tell how the Article 39a will be applied in Slovak practice. It will be interesting to see how it will be handled by the Constitutional Court, which is entitled to decide on complaints objecting to violations of human rights, now including also the right to use cash. After all, it will probably be the Constitutional Court, and not the Parliament, who will fill the examined right with concrete content and thereby eliminate ambiguities in the constitutional wording.

It has to be said that the right to use cash was introduced on the initiative of significantly populist members of the Parliament. Even in this context, the introduction of the right to use cash can hardly be accepted as a sincere effort to protect Slovaks. On the contrary, in my view it represents rather a populist step trying to ride on the wave of hoaxes about the attempt of certain elites to control individuals through the cancellation of traditional money. Considering what has been said about the wording of the June Amendment, as well considering the context in which this amendment was adopted, I am inclined to conclude that this amendment could be evaluated more as a manifestation of pre-election populism and a symbolic gesture for some voters rather than as a real protection of the right to pay in cash.

Marek Domin holds a PhD in Constitutional Law and is an associate professor in Constitutional Law at the Faculty of Law of the Comenius University in Bratislava (Slovakia).

Suggested citation: Marek Domin, 'Constitutional Right to Use Cash in Slovakia: A Real Tool of Protection or Pre-election Populism?' IACL-AIDC Blog (29 August 2023) https://blog-iacl-aidc.org/2023-posts/2023/8/28/constitutional-right-to-use-cash-in-slovakia-a-real-tool-of-protection-or-pre-election-populism