Opponents look to Constitutional Court and Brussels to block Slovakia's criminal justice reform

Opponents look to Constitutional Court and Brussels to block Slovakia's criminal justice reform
Slovak premier Robert Fico (left) openly admires his Hungarian counterpart Viktor Orban (right).
By Albin Sybera February 20, 2024

For the past two months Slovak opposition parties and protesters have been trying to block sweeping changes to the country’s criminal justice system proposed by the new left-right populist government of Prime Minister Robert Fico.

Following the legislation’s final approval by parliament earlier this month and its reluctant signing by liberal President Zuzana Caputova last week, attention is now switching to the country’s Constitutional Court and Brussels.

The opposition views the package as simply a “get out of jail” card for Fico and his party members and oligarchs, who were caught up in police investigations launched under the former centre-right government into the Smer leader’s previous era in power in 2012-2018.   

The package cuts abolished the Special Prosecutor’s Office, which specialised in corruption cases, cuts penalties for financial crime and other serious offences such as rape, reduces the statute of limitations for when prosecutions can be made, and weakens protections for whistleblowers. After the changes, bribery of up to €250,000 could be punished with just a conditional sentence.

The legislation was pushed through the parliament in a shortened procedure, precluding legal experts from giving their assessment of it.  

Caputova signed the legislation, despite her opposition to it, because any veto would almost certainly have been overriden in the parliament, where Fico’s ruling coalition holds a narrow majority.

Instead she filed a Constitutional Court complaint in order to give its judges a possibility of blocking the legislation before it automatically takes effect on March 15. If the court overturns the package after that date, because it would already have taken effect, many Smer-linked accused would have either been released from prison as their sentences would have been cut, or they would have had their cases dismissed as they were too old to prosecute.

The legislative package does not just deal with weakening the fight against corruption.  Ivan Stulajter, a reporter with liberal daily DennikN and onetime media advisor of former premier Eduard Heger, explained to bne IntelliNews that Fico’s cabinet is introducing legislation aimed at high-level corruption but is forced to do it in a way that is “applicable to every citizen”.

“They [Fico and his allies] cannot safeguard their people by [introducing] particular laws for each one, and so they have to do it as a flat measure”. As a side effect, “thieves, fraudsters and criminals who have nothing to do with politics” will also get a free pass with this legislation, Stulajter explained.  

“Simply put”, with this legislation, “a wide room for mafia opens up and various types of criminal behaviour”, Stulajter says.

High-profile investigations

The Smer party is embroiled in several high-profile investigations that were launched during its time in opposition. Blocking these investigations and protecting his people appears to be Fico’s main objective in his fourth government, critics charge.

“I can only see one logic for why four-time Prime Minister Fico has been pushing this legislation so hard, including the shortened legislative process, and has been willing to risk the international standing of Slovakia,” Stulajter says.

“Robert Fico is fulfilling his obligations towards the people who are already sentenced or are investigated, or charged, and a sentence is looming, because these people could give witness accounts against him,” with potentially damaging consequences, Stulajter argues.

Charges against Fico himself and his close collaborator Robert Kalinak have been dropped on the grounds of procedural mistakes by Prosecutor General Maros Zilinka, who invoked the controversial paragraph 363 of the Code of Criminal Procedure.

Smer legislator and former police president Tibor Gaspar still faces charges, which include abuse of police, as does his relative and Smer backer, Norbert Bodor, who is accused of money laundering and running a criminal ring involving Gaspar.  Under the legal changes, Bodor, who is currently facing 12 years in prison, could now instead face 2-8 years or even a conditional sentence if convicted.

Investigative journalist and collaborator of the Zastavme korupciu [Let’s stop corruption] NGO, Eva Mihockova, told bne Intellinews that the so-called “Ocistec” [Purgatory] case, in which both Gaspar and Bodor are caught up, “is a serious issue for the Smer leadership” even though “it is unlikely to shakeup Smer’s polling preferences”, in which Smer maintains 2-3% lead ahead of the main opposition party, the liberal Progressive Slovakia, in which Caputova used to be one of the leaders.

“Smer voters are immune to these topic,” Mihockova adds, explaining that “they realise there is much evil” in these cases but are willing to trade it for social benefits and a “feeling of government stability” under Fico. Last but not least, a feeling that “others steal too” is widespread.   

Escalating conflict

These sentiments have enabled the government to ride out the opposition demonstrations against the legal changes and the speed in which they were rammed through the parliament. If the Constitutional Court fails to act in time, or approves the package, the only hope of stopping it then would be a threat by Brussels to withhold EU funds or even to open an Article 7 procedure to potentially suspend Slovakia’s voting rights.

“My estimate is that this conflict [with Brussels] will escalate further”, Stulajter told bne Intellinews  after the European Parliament passed a resolution criticising the legislative changes in mid-January.

MEPs from Progressive Slovakia held a press conference last week during which they read out correspondence between Fico’s cabinet and the European Commission. It appears from the cited correspondence that the EU has already suspended the payment of the fourth tranche of the national recovery plan funds worth €900mn.

However, some observers believe the EU is not yet really focussed on Slovakia or may try to avoid getting into another battle over the rule of law, which has already blighted its relations with Hungary and Poland. Punishing the Slovak government may also simply drive Fico into an alliance with Hungary that will enable its Prime Minister Viktor Orban to further obstruct EU decision-making.

Marco Nemeth, Slovak-Hungarian fellow at regional platform Visegrad Insight and author of the book Europa v kocke [Europe in a nutshell],, said that following the resolution issued by the European Parliament, the legislative reform in Slovakia “wasn’t a European-wide discussion anymore”.

“I think it is a topic for Slovaks abroad, but not so much of a major topic for others, such as, for instance, it was with Hungary or Poland when Article 7 was discussed”, Nemeth says.  

“It may be because it is too complicated. Almost everyday changes were made to the legislative proposal, which alone contains more than 100 measures, and are hard to comprehend,” Nemeth says.

He points out that the EU has not yet given a clear statement whether it will take action against Slovakia.

“There is so much going on across the whole EU, including the upcoming European Parliamentary Elections, that it is hard to expect EU institutions to have a very large focus just on this,” Nemeth says.  

Nemeth’s words were echoed by Dana Marekova of the Climate Coalition Slovakia, who is based in Brussels. “It is true that currently, in light of the EP elections, the Commission is in a slightly different mode,” she says.

However, Marekova also stressed that alarm bells have already been sounded with the  wholesale firings at the Ministry of Interior in November.

“Caution is already widespread” and the “Commission seems to have clearly raised its finger”, Marekova told bne Intellinews. She says that close attention is now being paid to whether “EU funds would be handled without control and correction measures”.