05 March 2024

Hundred Days of Fico IV Administration

In Slovakia, we are witnessing something truly extraordinary. Within the first hundred days of the new administration, Slovakia has experienced a paradigmatic change in the penal codes, an attack on civil society organizations, an abolishment of the Special Prosecutor’s Office, a bill for a limitation of the whistleblower protection, and politicization of independent institutions. Accordingly, I argue that Slovakia faces a much faster democratic backsliding than what was happening in Hungary and Poland. Based on the pace of the initial steps, we can expect a radical shift in Slovakia’s democratic character and its position in international relations. Although this dramatic development is facing a strong reaction from civil society organizations and the public, the Fico IV administration does not allow any space for public discussion concerning these legislative changes.

In the following article, I critically assess the significant political changes after the parliamentary election in September 2023 and the formation of the new government consisting of two social-democratic parties, SMER-SSD, HLAS-SD, and the nationalist party SNS. Robert Fico arose from the ashes and became the prime minister for the fourth time, although many perceived him as a disqualified politician after the murder of the journalist Jan Kuciak and Martina Kušnírová.

In the first hundred days, the parliamentary majority and government members took several steps against the rule of law, public control, and civil society. We have seen plenty of examples of how to initiate an attack on the independent institutions in Hungary and Poland in the last decade. Similarly, as many anticipated before the elections, these pessimistic concerns are also becoming true in Slovakia.

Taming the police and judiciary: legal yet illegitimate steps of silencing

One of the first steps of the Minister of Interior Šutaj Eštok was a dismissal of the president and vice-president of the Slovak Police Force. He dismissed the former Police President Štefan Hamran two days before Hamran’s retirement and reassigned him for those two days to a department 300 km away from his residence. This action is a clear signal from the Minister to everybody in the police force that the Ministry will sanction disobedience. While the dismissal of the police president can be read as a manifestation of power, the dismissal of the vice-president was unlawful, as the Minister did not apply for prior approval from the Office for the Protection of Whistleblowers of Anti-Social Activity, which awarded Vice-president Kišš a whistleblower status. The court of the first instance granted an interim decision to allow Kišš to continue to perform his duties. In reaction, Minister Šutaj Eštok threatened the judge, who rendered the decision, with disciplinary and criminal sanctions.

The Minister of the Interior took a similar step against six investigators of the National Criminal Agency of the Slovak Police Force (NAKA), who have also been awarded a protected status from the Office for the Protection of Whistleblowers of Anti-Social Activities. All of them, including Vice-president Kišš, were protected because of the threat of retaliation for investigating the corruption of former public officials from before 2020, many of whom were party members of the ruling SMER-SSD. The Minister argued that the reason for the dismissal was the manipulation of the investigation.

While the Office for the Protection of Whistleblowers has not taken away the status of the protected person, the Fico IV administration came out with a proposal for an amendment of the Act no. 54/2019 Coll. on the Protection of Whistleblowers of Anti-Social Activity, which proposes to exempt members of the police force from the respective protection. One can consider this amendment a retroactive application of the law since the protected whistleblower status will be withdrawn from already granted cases.

Another step that did not fall within unlawfulness but constituted disturbance in democratic institutions is the replacement of three members of the Judicial Council of the Slovak Republic (JCSR), which happened even before the government got support in the parliament. Based on the current legislation, this is not a breach of the law. However, the Constitutional Court of the Slovak Republic (CCSR) and international and European organizations focusing on the independence of the judiciary have repeatedly objected to such an action. The replacement happened without the original members of the JCSR being informed of the reasons for the dismissal. The legality of the dismissal is currently pending at the CCSR. The concern about the JCSR is legitimate because of its broad power of control and influence over the selection of judges and disciplinary matters and a negative experience of exploitation during the chairmanship of Štefan Harabin, who used the JCSR to subordinate the judiciary and punish recalcitrant judges.

Abolishing the Special Prosecutor’s Office and politicizing appointments of public institutions

The amendment of the Law on the Prosecutor’s Office abolished the Special Prosecutor’s Office (SPO), which has existed since 2004. The SPO handles cases connected to corruption and serious crimes, including those related to misusing EU funds. Investigations by the SPO have led to numerous convictions in high-profile corruption cases, many of which were linked to Fico’s ruling SMER-SSD. After the amendment, the prosecutors from this department will be separated from the pending cases. The prosecutors will be transferred to the General Prosecutor’s Office, and the files will be sent to the regional prosecutor’s offices. Such a step may lead to delays and failures in the investigation since the regional prosecutors do not possess the same expertise and funding as the Special Prosecutor’s Office. The Special Prosecutor’s Office will be abolished on 20th March 2024. The amendment was adopted in a fast-track legislative procedure without any previous discussion.

The apparent aim of the change is to detach cases previously handled by the SPO from the prosecutors who supervised and represented them in the preparatory and court proceedings and to allocate them to other prosecutors.

In the same category of disconcerting steps of the new majority was a limitation of the independence of key state authorities. In January 2024, the parliament adopted the law changing the way of nominating the heads of several public institutions, namely the Health Care Surveillance Authority, the Statistical Office of the Slovak Republic, and the Antimonopoly Office of the Slovak Republic. The former process anticipated the said appointments to be distributed by the President of the Slovak Republic, who appointed the heads after a proposal from the government, which the parliament must have approved. After adopting the amendment, the government will appoint the heads of these institutions on the minister’s proposal. Such a change will lead to direct accountability of the appointees to the executive power, reduction of the independence of these institutions, and increased politicization. The party members of the ruling majority have already filled these positions.

Limiting civil society organizations

In November 2023, the Minister of Labour of the Slovak Republic, Erik Tomáš, introduced a proposal to change the funding of civil society organizations (CSOs). The funds awarded to the organizations by the tax assignation were proposed to be replaced with the state fund, which would distribute the finances to the CSOs and decide which organizations are worth supporting. The proposal mentioned a distinction between “worthy” and “unworthy” organizations based on their activity, and the state would financially favour the worthy ones. Based on the data from the third sector leading representatives, this change in the tax deduction system means a difference of almost 100 million EUR per year, assigned directly to the CSOs by the taxpayers. This change would inevitably impact, for instance, citizens’ assistance, public watchdog activities, or independent culture. In February 2024, Prime Minister Fico announced further steps against civil society, which will be “specific forms of monitoring” and a “foreign agent regulation” that will limit the “political” CSOs.

Disconcerting and paradigmatic change of the penal system

The amendment to the Penal Code adopted in February 2024 in a fast-track procedure without consultations with experts and the public was extensive. It affected all the criminal offences in the code. While Justice Minister Boris Susko claimed the amendment primarily focused on crimes against property and economic criminal offences, it also reduced penalties for corruption and criminal offences against public safety and the environment, shortened statutes of limitations for all the crimes (including offences against life, limb, or dignity), changed the position of cooperating defendants, and strengthened the protection of judges against the criminal investigation.

Moreover, it raised thresholds of damage that affect consideration between a criminal offence and a misdemeanour. The most questionable are changes of the threshold of the larger and substantial damage, raised by more than seven times (in the case of a larger damage, initially starting at 2,660 EUR, the first draft of the amendment changed to 35,000 EUR and was after a considerable criticism set to 20,000 EUR). The amendment also raised the threshold of the rate at which a judge may impose a suspended sentence of imprisonment, and the proposed change obliges a judge to give preference to a sentence other than imprisonment. Many former representatives of the ruling coalition parties are investigated or prosecuted for this criminality and will receive leniency accordingly.

This amendment to the Penal Code adopted in February 2024, if not stopped by the CCSR, will mean a general pardon on many criminal offences already committed, investigated, and prosecuted. The reason is that under existing legal practice, someone charged with a criminal offence is subject to the most lenient conditions that apply when their case has been investigated and prosecuted.

All crucial bills have been adopted in the fast-track legislative procedure, limited only to extraordinary cases, such as a threat of an imminent breach of fundamental rights and substantial economic damage to the state. In the first hundred days of Fico IV administration, the parliamentary majority used fast-track procedure in 16 out of 22 proposed bills, which is 72,73% of the legislative process. However, the conditions for a fast-track procedure were not fulfilled. Fast-track legislative procedure prevents public participation, hampers the authorities’ work, which has to adapt to sudden change at short notice, and effectively jeopardizes the fulfilment of their statutory tasks.

As a cherry on top, the Speaker of the National Council announced a plan to increase the number of judges at the CCSR. The President of the CCSR, Ivan Fiačan, immediately disapproved of the announced court-packing. According to him, the problem of the court is not the lack of judges, and the increased number of judges will not improve the situation. The court-packing strategies are used primarily in authoritarian regimes. For instance, we can observe cases of court-packing in the constitutional judiciary, such as in Turkey and Hungary.

At this moment, the European Commission announced the possibility of cutting the money from the Recovery and Resilience Plan as the result of the penal legislation adopted in Slovakia. Brussels threatened to stop EU funds for Slovakia if the initial changes were adopted. Nevertheless, the essence of the amendment to reduce punishments for economic crime and corruption remained. The response from the public has been fierce, including almost 60,000 people protesting the proposed bills in the streets for several weeks. Despite the public pressure, the parliament adopted the changes in the Penal Code on February 8th.

SUGGESTED CITATION  Čuroš, Peter: Hundred Days of Fico IV Administration, VerfBlog, 2024/3/05, https://verfassungsblog.de/fico-iv/, DOI: 10.59704/1209541054add8f7.

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