The Slovak Constitutional Court has Kneeled before Robert Fico

Peter Čuroš

Polish Academy of Sciences

Slovakia is experiencing democratic backsliding. This post will focus on one of the measures the Slovak government is taking on that direction: general amnesty through the novelization of the Penal Code and the subsequent decision of the Slovak Constitutional Court (SCC) on the constitutionality of this amendment.

There was an extensive amendment to the Penal Code in February 2024. It was adopted without consultations with experts and the public in a fast-track procedure. It affected all of the criminal offenses in the code, reduced penalties for corruption and criminal offenses against public safety and the environment, shortened statutes of limitations for all crimes (including offenses against life, limb, or dignity), changed the position of cooperating defendants, strengthened the protection of judges against criminal investigation and raised thresholds of damage by more than seven times that affect consideration between a criminal offense and a misdemeanour. In March, the SCC postponed the effectivity of the amendment. This step heightened the expectations of both legal and lay communities since the amended Penal Code would entail a general pardon for many criminal offenses already committed, investigated, and prosecuted. The reason was that under existing legal practice, someone charged with a criminal offense was subject to the most lenient conditions that apply when their case was investigated and prosecuted.

After the ratio decidendi of the SCC Pl. ÚS 3/2024 decision was published at the beginning of July,  there were mixed feelings. However, after the obiter dictum was published, the unpleasant aftertaste not only did not fade away but grew into nausea. A strong player in the constitutional system that could, often controversially, shape constitutional interpretation, became a tamed tool for appraising governmental politics.

Illegality does not constitute unconstitutionality

The reasoning behind the SCC's decision in the PL. ÚS 3/2024 case will serve as a stark reminder of a missed opportunity for years, if not decades. At a time when the unchecked rise of populist government threatens the very fabric of democratic society, the SCC chose to turn a blind eye and a deaf ear, missing a crucial chance to avert this dangerous trend.

With all due respect to the court, it is incomprehensible that it chose to resolve undoubtedly one of the most complex and important decisions since the establishment of the Slovak Republic in only 134 days from the first proposal submitted by the President of the Slovak Republic. The gravity of this decision, comparable to the decision under the popular title “material core of the constitution” (PL. ÚS 21/2014), which took nearly four and a half years, should not be underestimated. This short period affected the soundness and persuasiveness of the arguments used by the SCC.

The court refused to set boundaries on the legislative power in violating the rules of the legislative process. It acknowledged that none of the declared facts for which the parliamentary majority wanted to adopt an amendment to the penal laws in a fast-track legislative procedure were legitimate. Neither the incorrect implementation of directives of the European Parliament and Council, the court’s PL. ÚS 1/2021 decision, the need to respond to inflation, the alignment of regulations with decisions of the ECtHR in individual cases, nor the conflict between the General Prosecutor's Office and the Special Prosecutor's Office were good reasons for the fast-track legislative proceedings in the court’s view: the majority breached the law on the Rules of Procedure of the National Council of the Slovak Republic, Act no. 350/1996 Coll.

However, there is a twist. One might assume that violating the rule of law in a state governed by the rule of law must be unconstitutional. However, the SCC claimed the opposite. Simply put, it does not matter that the law has been breached. The only thing that matters is that the parliamentary minority could respond in debate. However, it did not matter that nobody listened to them, that the proposers of the bill were not present to respond to them, nor that the majority forced them to use the precious limited debate time in the middle of the night. Finally, it did not matter that a third of the bill changed the day before the vote. According to the SCC, all of this was a matter of political strategy. The finding sums this ups: "Illegality does not have to represent unconstitutionality." The SCC did not explain this further and simply referred to the decisions PL. ÚS 13/2022 and PL. ÚS 18/2022. Although the state of emergency is no longer in place, the SCC used the same argument based on the absence of an explicit breach of constitutional rules that it developed during the COVID-19 pandemic.

It is fascinating how Zeno's paradox of movement was applied to violating the rules of procedure. In the style of the paradox, one can read the SCC’s argument that even a hundred violations on a legislative level do not constitute a breach of the Constitution (point 346).

Despite many references to the Czech Constitutional Court’s decisions, the SCC hasn’t addressed that its Czech counterpart was willing to examine unconstitutionality in the process of adopting a legal norm when deciding on the unconstitutionality of a norm adopted for a particular situation, thus lacking the fundamental quality of generality (Pl. ÚS 27/09). Unlike the Czech court, the SCC openly avoided setting a position against the intentional breach of fundamental principles of legislation-making and allowed the legislator to breach procedural norms.

Breach of procedural rules is a matter of political strategy

Another message from the SCC was that "political incivility is a matter of political strategy." The SCC indirectly stated that interdepartmental commentary procedures are an unnecessary luxury, and the third reading is a nuisance, indirectly devaluing Act No. 350/1996 Coll. on the Rules of Procedure to a bylaw.

The fifth part of the decision features a didactic lecture on what deserves and does not deserve to be an argument (point 306) or how the proposers dared to argue the purpose of punishment (point 366). While reading, it is noticeable that this part had a different author than the previous one (probably one trained in criminal justice), and how it acknowledged the reasoning of the Ministry of Justice. For example, we learn that indicted MPs can propose laws to reduce the penalties they face and shorten the statute of limitations because the change will affect all defendants in such situations. We also learn that the indicted MPs acted correctly when they voted in their favor because they would breach their duties as MPs if they abstained.

It is also surprising how, from point 350 onwards, there is even glorification of the contested legislative change. Readers might pause and question whether they are reading the arguments of the SCC or the Ministry of Justice, as the court unusually proactively provided justification and advantages of the new penal policy. If the parliamentary opposition criticized the lack of arguments in the explanatory memorandum to the amendment of the criminal laws, the SCC diligently supplemented them in these points. The most interesting conclusion is the statement by the SCC that the proposed change will not affect the EU's financial interests or the Slovak economy. This is surely an empirical issue that the SCC lacks the capacity to determine. Conclusions like these seem to be excerpted from the mandatory documents on the economic and social impact usually submitted by the ministry.

It is difficult to read the decision PL. ÚS 3/2024 as a critique of the Fico government. In 2018, Slovakia feared that Robert Fico would become the Chief Justice of the SCC, becoming the guardian of the rule of law in the country. In 2024, we can say that Fico achieved this control from outside the court. Once an influential constitutional court with the power to limit legislative power, the SCC has now kneeled before the sovereign. One quote from the Court’s decision sums this up: "The Constitutional Court evaluates the decision of the National Council, but primarily respects restraint towards the legislator."

Peter Čuroš is an assistant professor at the Polish Academy of Sciences and a lawyer at VIA IURIS in Slovakia.

Suggested Citation: Peter Čuroš, ‘Slovak Constitutional Court kneeled before Robert Fico’ IACL-AIDC Blog (24 October 2024) The Slovak Constitutional Court has Kneeled before Robert Fico — IACL-IADC Blog