In a Participatory Manner, Analyze the Selection Procedures (SK0118)

Under current law46, only a prosecutor may be a member of the selection board. Such membership re-strictions may raise doubts about their objectivity and transparency.
The Constitutional Court of the SR stated47: "The Prosecutor's Office cannot be understood as a closed and isolated system of authorities, which has no bindings to other public authorities and whose activities cannot be interfered with in any (including legally regulated) way. From the principles of a democratic state, the division of power and checks and balances, there is a legitimate requirement for such a legal regulation, which would allow the exercise of public control over the activity of the prosecutor's office and an adequate degree of influence by the various branches of state authority in relation to the prosecutor's office. Its pur-pose is to ensure the proper execution of its mission, consisting of an active, fair and impartial procedure for the protection of the public interest, the protection of fundamental rights and freedoms, as well as other rights and the rights of protected interests. It is for this reason that it is legitimate to give the constitutional bodies representing individual branches of state power a certain degree of influence on the process of crea-tion and filling of the boards of the Prosecutor's Office." The court also noted that the Attorney-General has a constitutional responsibility for the operation and functioning of the Prosecutor's Office and therefore must also have the possibility to influence the composition of the Selection Boards at least in some way.
Commitment No. 61: In a participatory manner, analyze the selection procedures for the prosecutor's office, including draft legislative changes, in order to increase their transparency.

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.