Participatory Analysis of Prosecutor's Affairs (SK0117)

According to the current law, the Disciplinary Proceedings in Prosecutors' Matters are conducted by the Disciplinary Commission set up at the General Prosecutor's Office.44 Only Prosecutors can be members and chairs of Disciplinary Commissions. The term of office of Disciplinary Commissions is three years, and the same person may be appointed to the Disciplinary Commission repeatedly. The Attorney-General decides on all issues concerning the appointment of Disciplinary Commissions - including the appointment of mem-bers of Disciplinary Commissions, chairs and substitutes (both first and second instance), makes decisions about replacing chairs / substitutes, and about excluding an individual Disciplinary Commission member from a hearing and from ruling on the basis of bias. The Prosecutors' Council decides on the principles of filling disciplinary commissions and creating a list of alternates, proposes the chairs, members and alter-nates of disciplinary commissions. sions should ensure balanced influence of the bodies representing the prosecution authorities, representa-tives representing the protection of rights and the interests of prosecutors and entities representing the external or Public control".
Commitment No. 60: In a participatory manner, conduct an analysis of disciplinary proceedings in prose-cutors' affairs and create draft legislative changes in order to increase the transparency of these discipli-nary proceedings.
The motion to initiate disciplinary proceedings may be filed by the Attorney-General (against any prosecu-tor), the Public Defender of Rights, the Deputy Attorney-General and the respective Regional Prosecutor or District Prosecutor. The decision of the first-instance Disciplinary Commission may be appealed. The appeal is addressed by a five-member second-instance Disciplinary Commission. The final decision issued in disci-plinary proceedings is reviewable by a court.
There are several consequences of the existing legal framework:
 Attorney-General has a particularly strong position and has the power to decide about the ap-pointment, replacement, as well as bias of the members of the Disciplinary Commissions, and is al-so entitled to make a motion to initiate disciplinary proceedings. He is therefore both the proposer and the creator of the body that decides on the proposal.
 Although the Prosecutors' Council proposes the members of the disciplinary commissions, it de-cides only on the principles of filling the disciplinary commissions, the use of substitutes and filling in the database of candidates for the members of the disciplinary commissions and the procedure for the allocation of cases to individual commissions.
 Disciplinary proceedings are formally public, but since the members of the Disciplinary Commis-sions include only prosecutors, this is a closed system without real public control. Such a situation can not only be abused to harass prosecutors but also lead to insufficient (or nonobjective) ac-countability because the guilt is decided by colleagues.
 Laws on prosecution also do not explicitly address who can initiate disciplinary action against the Attorney-General.
It is clear from the Constitutional Court's finding45 that the Prosecutor's Office is a special constitutional body of legal protection for which there is a legitimate requirement for such a legal regulation that will allow public control over the activities of the Prosecutor's Office as well as "an adequate degree of influ-ence of individual constituents of the state authority in relation to the Prosecutor's Office whose purpose is to ensure the proper realization of its mission consisting of an active, fair and impartial procedure in the protection of the public interest, the protection of fundamental rights and freedoms, as well as other rights and legitimately protected interests." According to the Constitutional Court, the disciplinary liability (re-sponsibility) of prosecutors is an institute whose purpose is mainly to direct the work of the prosecution - which is the competence of the Attorney-General. At the same time, however, the Constitutional Court also found that legislation that allows the National Council or constitutional bodies representing the executive branch to nominate candidates to the Disciplinary Commission "has a rational basis, pursues legitimate aims, and therefore cannot be regarded as a manifestation of the legislator's willfulness." The Constitution-al Court stresses that "the legal standards governing the creation and composition of disciplinary commis

THEME - Improve prosecutors  

Comm 58, 59, 60, 61

Language of the commitment as it appears in the action plan^{[Note : The Office of the Plenipotentiary, “Open Government Partnership National Action Plan of the Slovak Republic 2017 – 2019”, http://bit.ly/2QYIlHV ]}:

Commitment 58: “Prepare and submit to the Government a draft of the Act amending Act No. 154/2001 Coll. on prosecutors and Lawyers of the Public Prosecutor's, that will ensure the publication of the seat of office of individual prosecutors”.

Commitment 59: “Create draft legislation to extend the right to recommend candidates for the post of Attorney-General”.

Commitment 60: “In a participatory manner, conduct an analysis of disciplinary proceedings in prosecutors' affairs and create draft legislative changes in order to increase the transparency of these disciplinary proceedings.”

Commitment 61: “In a participatory manner, analyze the selection procedures for the prosecutor's office, including draft legislative changes, in order to increase their transparency.”

Start Date: Not specified                

End Date: 31 July 2018

Context and Objectives

According to the reports from the European Anti-Fraud Office (OLAF) the indictment rate was 18% in Slovakia 2017^{[Note : European Anti-Fraud Office, “The OLAF report 2017,” http://bit.ly/2Kw2EKQ ]}. The EU average indictment rate was 42% in 2017. The Transparency International Slovakia informed that although there have been some improvements in punishing corruption, and for instance, the number of solved cases of bribery above a thousand euro has increased, the number of cases of grand corruption linked to high-level public officials has been continuously very low and enjoyed impunity^{[Note : Transparency International Slovakia, „Napriek zlepšeniu „veľké ryby“ stále nechytáme“ (Despite improvements we still do not catch ‘big fish’) http://bit.ly/2Tcb7d0 (in Slovak)]}. Prosecutors, along with the police, play a crucial role in investigating and prosecuting cases of corruption, as they file indictments to courts. The Office of Special Prosecutor, which is responsible for ‘corruption agenda’, has accused the lowest number of people since 2009. As Transparency International concludes it might signalize that prosecutors overlook corruption cases^{[Note : Transparency International Slovakia, http://bit.ly/2BPtH0E (in Slovak)]}. 

The latest report by the Group of States Against Corruption (GRECO) and Council of Europe (CoE)^{[Note : Group of states against corruption and Council of Europe, “Second compliance report Slovak republic: Corruption prevention in respect of members of parliament, judges and prosecutors”, http://bit.ly/2BwFTDy]} concluded that as regards prosecutors, “several developments are to be welcomed”. In particular, they praised the adoption of the Code of Ethics, an introduction of the obligation to declare gifts and liabilities above a certain threshold. GRECO and CoE also welcomed the amendment of the Act on prosecutors and prosecutors’ candidates^{[Note : SLOV-LEX (Legal and information portal), The Ministry of Justice, “The Act on prosecutors and prosecutor candidates no. 154/2001 Coll.”, http://bit.ly/2b7Pc1P (in Slovak).]}, which included an obligation to disclose publicly and regularly update a list of all prosecutors’ names on the website of the Prosecutor General’s Office. Since then the Prosecutor General’s Office has updated this list regularly with the latest update being made on 19 November 2018^{[Note : The list of prosecutors published on the website of the Prosecutor General’s Office, http://bit.ly/2aYKyk2 (in Slovak).]}. The experts interviewed for the previous IRM report agreed that this was an important first step towards greater transparency and an achievement that would not be possible without OGP action plan in place^{[Note : Mária Žuffová, Open Government Partnership, “Slovakia Special Accountability Report 2014 - 2015”,  http://bit.ly/2EzH4Ws]}. The public availability of prosecutors’ names also addressed the problem with access to affidavits and asset declarations. In addition to that, the Prosecutor General’s Office made available a tool for searching asset declarations by name on its website^{[Note : The tool for searching prosecutors’ asset declarations is available on the website of the Prosecutor General’s Office, http://bit.ly/2TJpO4s (in Slovak). ]}.

New commitments aimed at greater transparency, such as Commitment 58 to disclose the seat of prosecutors is useful and specific enough to be verified. Currently, the appointment of the Attorney General is political, as MPs propose the nominees. Commitment 59 to extend the right to propose nominees for the post of the Attorney General to legal professionals is a positive measure, which makes the appointment of the Attorney General less political. However, this commitment is not relevant to any of the OGP values of access to information, civic participation or public accountability.

The interviewed experts stated in the previous IRM report that the executive powers of the Attorney General should be reduced, and both selection and disciplinary procedures should be made more transparent^{[Note : Mária Žuffová, Open Government Partnership, “Slovakia Special Accountability Report 2014 - 2015”, http://bit.ly/2EzH4Ws}

]. Commitments 60 and 61 to analyze selection and disciplinary procedures for prosecutors could potentially address these issues and help to trigger changes.  However, commitments do not specify how the analysis could be used and what the consequences of it would be, therefore the potential impact of these commitments is minor.  

Next steps

The IRM researcher recommends that the Prosecutor General’s Office makes the analyses on selection and disciplinary procedures publicly available and clarify how it will further use the findings.