The Ides of March in Slovakia

Peter Čuroš

Polish Academy of Sciences

Last month in Slovakia, a legal-political oxymoron unfolded. The Slovak President and parliamentary opposition were striving to maintain the legislative status quo of the Penal Code, while the governing coalition was pushing for a change in the penal system. The deadline for this clash was 15 March – a date that coincidentally marked the Ides of March, a Roman festival historically associated with settling debts. This year, that took on a literal meaning, as the objective of the adopted Penal Code was to halt the criminal investigations and trials of prominent figures linked to the Fico IV administration that was elected in September 2023.

The President and parliamentary opposition were tasked with convincing the Constitutional Court of the Slovak Republic (CCSR) that the amendment to the Penal Code was such a blatant interference with the rule of law that it necessitated the suspension of the majority will in the parliament. Meanwhile, the governing coalition's strategy was to bide their time and delay. The amendment of the Penal Code has been, however, just one example of the dramatic changes. The pace of adopting crucial laws since the parliamentary election in September 2023 has been relentless, with 16 out of 22 bills passed in a fast-track legislative procedure. This procedure prevents any public debate on changes, and hampers the work of government bodies, which have to adapt to sudden change at short notice, and effectively jeopardizes the fulfillment of their statutory tasks. It is meant only for extraordinary cases when fundamental human rights and freedoms are at stake, national security is in jeopardy, or when there is a threat that the state could suffer considerable economic damage.  Despite the hindered public discussion, thanks to the persistence of the opposition parties and public protests, the 6th parliamentary meeting was extended to almost two months, and the amendment to the Penal Code garnered public attention. The changes to the Penal Code were finally adopted on 8 February 2024.

In a nutshell, the political landscape in Slovakia has undergone a dramatic shift. Since the formation of the new government, which consists of two social-democratic parties (SMER-SSD and HLAS-SD) and the nationalist party (SNS), the institutions safeguarding the rule of law and public control, including Slovak civil society, have been under relentless pressure. The grim predictions have materialized, and it appeared that Slovakia was veering towards a scenario reminiscent of Hungary's undemocratic governance of public affairs. Government members openly express their admiration for Viktor Orbán. However, unlike Orbán, the Fico IV administration does not possess the support of a  parliamentary majority able to make amendments to the Constitution (which in Slovakia would be 90 out of 150 members of the parliament). Therefore, the trajectory of the rule of law erosion in Slovakia might rather echo the steps taken by the PiS government in Poland after 2015. One of the first steps of the PiS administration was to take advantage of controlling the process of publishing legislation to enable unconstitutional changes to the Constitutional Tribunal. This blog post first explains the unsatisfactory situation that has unfolded in relation to the amendments to the Penal Code in Slovakia, before demonstrating how the actions of PiS in Poland served as a template for the Government’s action (and arguably also as a warning for the CCSR, and anyone concerned to preserve the rule of law in Slovakia).

How laws enter in effect in Slovakia

According to the Rules of Procedure, after a Bill is debated and passed in the first, second, and third readings in the National Council of the Slovak Republic (NCSR), an adopted bill must then be signed by the President, the Speaker of the NCSR, and the Prime Minister of the Slovak Republic.

The Constitution of Slovak Republic in Art.102 imposes a deadline of 15 days from the adoption of the bill for its signing by the President. During this time, the President may apply her right of veto and return the bill with objections back to the NCSR. If the President does not exercise this right, she will send the adopted bill to the Office of the NCSR. Then the Speaker of the NCSR has 21 days from the bill's adoption to send it to the Ministry of Justice of the Slovak Republic together with a written request for the promulgation of the law. Subsequently, the Ministry of Justice has 15 days to promulgate it in the collection of legislative acts and to ensure the identity of the submitted and promulgated text.

To make the situation more complicated, the Slovak legal order recognizes two concepts related to the legal effects of a promulgated law – entry into force and entry into effect. The former represents the period during which the legislative act is a part of the legal order. It starts with its promulgation in the collection of legislative acts. The latter is when a legislative act is binding and affects legal subjects' rights and obligations. In a significant part of the existence of the legislative act, the periods of force and effect overlap. It is only in the vacatio legis period, when the legislative act awaits its entry into effect, that they do not overlap. Vacatio legis usually lasts 15 days from the entry into force, but it may take longer than 15 days if the amendments of the law are crucial, and authorities and subjects need a longer time to familiarize themselves with how their rights and duties will change. In rare cases, the vacatio legis may be shorter or even non-existent in cases of urgent public interest. If a shorter vacatio legis is not determined and adequately justified, the Ministry of Justice must promulgate the adopted bill at least 15 days before entry into effect. However, a breach of this duty is not sanctioned by law.

Theory in practice

Having briefly examined the legal theory, let's analyze the recent situation. The parliamentary majority adopted a bill dramatically amending the Penal Code, the Code of Criminal Procedure, and the Prosecutor's Office Act in a fast-track legislative procedure. Prime Minister Robert Fico subsequently waited six days to sign and deliver the adopted bill to the presidential palace. Although President Zuzana Čaputová expressed considerable concern about the bill, she signed it without applying her right to veto in order to allow more time for the CCSR to consider her motion whether the adopted bill conforms to the Slovak Constitution.

However, because of the statutory periods in the promulgation process, the Slovak public worried whether the President's strategy of waiving her right to veto the adopted bill and turning to the CCSR instead would be effective.

Based on the CCSR's precedent, it could review only a promulgated act, not an adopted bill. Since the bill adopted on 8 February spent six days with the Prime Minister, and could have spent up to 21 days with the Speaker of NCSR (ie, until 29 February), and then 15 days at the Ministry of Justice prior to promulgation (ie, until 15 March), it was difficult for the CCSR to review the act's conformity with the Constitution before the Penal Code entered into force on 15 March. However, the CCSR deviated from previous case law and admitted the adopted bill for further proceedings.

There was also the problem of the last requirement of ensuring at least 15 days between the act’s promulgation and its entry into effect. Therefore, the Ministry of Justice should have shared its allocated time with the Speaker of the NCSR in order to promulgate the law no later than 29 February 2024. However, this deadline passed, and the adopted bill had not yet been promulgated. This non-activity of the Ministry of Justice created concerns about whether the government was going to play by the rules, since the fast-track procedure had already hindered any kind of expert or public participance.

Furthermore, according to §19 of the Act on the Creation of Legal Regulations and on the Collection of Laws, the CCSR decision must also be promulgated in the collection of legislative acts to be binding. In case of suspension of the effect of the penal amendment, the decision had to be promulgated in the collection of legislative acts before the deadline of 15 March. Unlike legislative acts, decisions of the CCSR do not have vacatio legis and are binding on the day they are promulgated by the Court.

Fico IV administration had a good mentor

The government coalition certainly had someone to learn from in this strategy. We have already seen a similar case of abuse of law in Poland.

When the Law and Justice Party (PiS) won the election in 2015, it made no secret of its plans for significant changes to the legal system. In the rhetoric of PiS chairman Jaroslaw Kaczynski, Poland was in a state of legal impossibilism—a state in which no reform could be implemented without interfering with the pillars of the rule of law because it would subsequently be overturned by the general courts and especially the Constitutional Tribunal.

PiS thus launched a frontal attack, first on the Constitutional Tribunal and later on the general courts. Before PiS came to power, the parliament, in which Donald Tusk's Civic Platform (CP) had a majority, created a good starting position for Kaczynski. At the end of the election period, CP had an opportunity to elect three judges of the Constitutional Tribunal to replace three Judges whose terms would expire in November 2015. Two more seats were also to become vacant at the Constitutional Tribunal in December 2015. To enable it to fill all five vacant seats the parliament changed the Act on the Constitutional Tribunal on 25 June 2015. The parliament then elected all five judges and submitted them to the President of Poland for appointment on 8 October 2015. PiS-aligned President Andrzej Duda did not appoint these judges. Parliamentary elections to the lower house of parliament - the Sejm - were held in Poland on 25 October 2015. PiS won them, and the very first step of the new coalition after the elections was a further amendment to the Act on the Constitutional Tribunal (on 19 November 2015). On 27 November 2015, the Sejm then passed a  resolution reversing the election of the five judicial candidates by the previous Sejm.

On 30 November 2015, the Constitutional Tribunal issued an injunction for all institutions to refrain from any action related to the changes in the acts from 25 June and 19 November, in order to prevent obstruction of the outcome of the constitutional review of those laws. However, the Sejm ignored the injunction, nominating five new candidates who were then elected on 2 December 2015, and appointed on 3 December  2015 (the day the Constitutional Tribunal was scheduled to announce the outcome of the relevant constitutional review).

The Constitutional Tribunal ruled that the changes to the laws on the Constitutional Tribunal in June 2015 and November 2015 were unconstitutional and ordered President Duda to appoint the three judges elected by the previous Sejm as judges of the Tribunal. However, neither the President nor the Sejm obeyed the decision.

The Tribunal then dealt with amendments to the Act on the Constitutional Tribunal several times, declaring further changes to the Act unconstitutional in decisions in March (K 47/15) and August 2016 (K 39/16). However, the Polish government decided not to promulgate the decisions in the collection of legislative acts, and thus, these decisions did not enter into force, creating chaos at both a national and international level because it was not clear which judicial decisions were valid and which were not. In several decisions of the European Court of Human Rights and the Court of Justice of the European Union, it was stated that because of the controversies around personnel and other instances of interference with the Tribunal’s independence by the Sejm and the government, the Polish Constitutional Tribunal  no longer met the requirements of an independent and impartial court.

Denouement

The CCSR, presumably learning from the Polish case, rendered a decision exceptionally quickly on 28 February 2024 suspending the entry into effect of the amendments to the Penal Code. This left the Fico administration no opportunity to cause the amended Penal Code to enter into effect without ignoring the decision of the CCSR. One week later, Prime Minister Fico verbally attacked the Constitutional Court and publicly demanded that Chief Justice Fiačan step down.

After a strong reaction from the public, civil society, political opposition, President Čaputová, and the European Commission, the Ministry of Justice promulgated both the amended Penal Code and the decision of the CCSR on 11 March.

Despite the partial success of the rule of law mechanisms in Slovakia to date, the real storm is still coming. In the Polish case, the PiS government took advantage of the favorable timing, and its officials in 2015 bet on Brexit chaos and the subsequent delay in sanctions for interference with the rule of law and the independence of the judiciary. Robert Fico's administration expects the paralyzation of the control mechanisms from the European Union due to the elections to the European Parliament and the subsequent succession in the leadership of the European Commission. The current administration already knows a blueprint for the destruction of the rule of law, and the conditions will be more favorable soon.

Peter Čuroš is a lawyer in VIA IURIS - a Slovak NGO focusing on the resilience of the rule of law, and  Assistant Professor at the Polish Academy of Sciences in Warsaw.

Suggested citation: Peter Čuroš, ‘The Ides of March in Slovakia’ IACL-AIDC Blog (23 April 2024) The Ides of March in Slovakia — IACL-IADC Blog (blog-iacl-aidc.org)