On Thursday, 18 January 2024, President Čaputová made an extraordinary speech in the plenary session of the National Council of the Slovak Republic regarding the proposed changes in the field of criminal law.  

"Mr. Chairman, Mr. Prime Minister, Members of the Government,

 I believe that if we can all agree on something in this hall, it is certainly that our criminal policy is one of the most essential and therefore basic functions of our state. It is a key tool for maintaining order and security in society, with a direct impact not only on the perpetrators, but also on the rights of the victims. It fulfils the natural expectations of citizens that when a crime occurs, the state will appropriately punish the perpetrator and establish justice. In doing so, legislators must take into account the basic regulatory, protective, repressive and preventive-educational functions of criminal law.
 
The amendment of laws in the field of criminal law, which you will vote on, represents one of the most significant changes in the criminal policy of our state to date. It is a change that fundamentally alters the approach to property and economic crime in the broadest sense - from ordinary theft to organized crime.

If incorrectly or incomprehensively prepared, it could cause unforeseeable societal damage and irreversible interference in the rights of persons harmed by criminal activity.

The idea of implementing such serious changes in the field of criminal law without a proper legislative process is unprecedented. The ongoing debate in parliament is not an adequate replacement for this process; in this case, debate would not have to have a place in the legal system at all, and the comments of the opposition members of parliament are not leading anywhere. They can come up with any argument they want, but without the right to have it addressed.
 
The standard legislative process, which includes an interdepartmental comment procedure, has its own special purpose, and cannot be replaced by statements of the members of parliament. The regular comment procedure is public.  It is attended by the mandatory parties and fundamental comments can be raised, which subsequently need to be dealt with in the manner established by law. I myself have participated in several interdepartmental comment procedures as a representative of the public under your previous governments. And generally speaking, it was a qualified professional dialogue in which fundamental points were raised and discussed.
Therefore, let us not mistake parliamentary debate for this essential tool in the preparation of legislation.

The absence of professional discussion multiplies the risks associated with this amendment, as there is absolutely no analysis of its practical and technical consequences. Its adoption is associated with all the risks that insufficient preparation and the absence of professional discussion can bring.

Dear Members of Parliament,
Our legal system allows for abbreviated legislative proceedings, but only as an exceptional instrument for the adoption of legislation, under the condition that at least one of the reasons listed in the law is present.

One of the main reasons for which the petitioner, i.e. the government of the Slovak Republic, has based the justification of the abbreviated legislative procedure, is the alleged massive violation of the human rights of the accused.  And it has presented dozens of decisions of the Constitutional Court of the Slovak Republic as evidence of this. I have had the opportunity to familiarize myself with the aforementioned decisions of the Constitutional Court and I must say that the petitioner’s argument as a legal reason for the accelerated legislative process simply does not hold up.

The aforementioned decisions of the Constitutional Court have very little to do with the amendment of the criminal law itself and do not justify the accelerated abolition of the special prosecutor's office. Out of all of the decisions delivered to me by the Minister of Justice, only six decisions of the Constitutional Court from 2020 refer to procedures or decisions of the Special Prosecutor's Office. And  in none of these six cases was the unconstitutionality of the criminal procedure itself established. They primarily involved violations of the right to proceedings without unnecessary delays, not allowing persons in collusive detention to visit a notary, illegal seizure of funds during criminal prosecution, illegal search of administrative premises and insufficient verification of the complaints of the accused, who was not allowed to send letters to his wife and children while being detained. All the above qualify as violations and it is good that the control mechanism in the form of the decision-making activity of the Constitutional Court works. However, none of these decisions justifies the abolition of the institution itself.
 
Most of the decisions of the Constitutional Court concern other law enforcement bodies. The petitioner's argument that even the decisions of the Constitutional Court, which concern the courts, are actually the responsibility of the prosecutor's office is also unfounded, as the responsibility for the procedure and the decision is always borne by the authority that issued the decision. Every year, the Constitutional Court issues hundreds of similar decisions related to the violation of rights due to delays in proceedings or various procedural errors. If this were a valid reason for abolishing institutions, we would also have to abolish many courts and prosecutor's offices, which would be absolute nonsense.

The petitioners also refer to the need to harmonize the level of penalties with the trends of criminal policy in the states of the European Union. However, based on a preliminary analysis of the government's proposal, the European Public Prosecutor's Office has determined that some of the proposed changes would no longer ensure that crimes against the European Union's budget are punished in Slovakia with effective, appropriate, and dissuasive criminal sanctions. The European Union requires deterrent penalties for the fraudulent use of EU funds.

You also repeatedly mention that the amendment is based on a proposal prepared by the former Minister of Justice, Mr. Karas. It is true that he prepared a comprehensive draft of the amendment to the criminal code after extensive and months-long discussions with experts during the regular legislative procedure.

However, he had distanced himself from the content of the negotiated amendment to the criminal code, because, according to him, in the current form it represents a serious threat to the internal security of the state.

I see a more honest justification for the accelerated legislative procedure in the Prime Minister's statement: "Politics is about power and this is a powerful decision." We don't have to agree on what politics should be about, but one thing holds true for everyone: in a democratic society, the exercise of power is limited by the law and the constitution, and even the winner of the election must respect them.

Now I would like to make a few comments on the content of the amendment itself. 

The amendment to the criminal code significantly reduces the penalties for all property and economic crimes. It also fundamentally raises the limit of the amount of damage and expands the possibility of imposing suspended prison sentences, even in the case of the most serious economic crimes committed by organized groups of criminals. Last but not least, the amendment significantly shortens the statutes of limitation.
In order to clarify and frame these objections, I will offer two examples. A person who commits the crime of theft by breaking into a house and causing damages of up to 350,000 euros, which for the majority of Slovaks is more than the property they have acquired during their lifetime.  According to the proposed legislation, the perpetrator would not have to go to jail, but could be given a suspended sentence. Furthermore, as long as the damages do not exceed 35,000 euros, the perpetrator must be given a suspended sentence or house arrest.

For the crime of fraud or theft, which are the most frequent in the area of property crime, the new legislation would reduce the term of imprisonment from 10 to 15 years to 3 to 10 years. And in the case of the legalization of proceeds from criminal activity, which was previously punishable by imprisonment from 12 to 20 years, the term of imprisonment would also drop to 3 to 10 years. Simply put, for violations of all of the crimes in the fourth and fifth chapters of the criminal code, it would be possible to impose a suspended prison sentence, regardless of the amount of damages, the scope of the crime or even if it is committed by an organized group.

We often hear the argument about harmonizing the level of criminal rates for certain crimes with those of neighbouring countries. Let's conduct a real comparison: In the Czech Republic, in the case of property crimes in more serious, i.e. qualified facts, the criminal code mostly provides a sentence of 5 to 10 years. The proposed amendment calls for 3 to 10 years even for qualified crimes.

However, in the Czech Republic, only sentences of up to 3 years may be suspended, which means that an individual perpetrator can only receive a suspended sentence for less serious acts. However, the proposed amendment allows the imposition of a suspended sentence even in the case of more serious crimes. Germany’s criminal code also regulates criminal rates comparable to those proposed in our country. However, only sentences for up to 1 year and in exceptional cases up to 2 years may be suspended.  Again, even if the German criminal code provides the rate of 3 to 10 years for certain property and economic crimes, the court cannot suspend such a sentence conditionally. In our country this will be possible even for sentences of up to 4 years. Reference can also be made to the Austrian criminal code, where the bribery of public officials in the amount of more than 300,000 euros is punishable by imprisonment for up to 15 years. In Slovakia, according to the proposed amendment, a bribe to a public official of up to 700,000 euros would be punishable by maximum imprisonment of 3 years, for which the perpetrator would be entitled to a suspended sentence.

Furthermore, according to the proposed amendment, the statute of limitations for criminal offenses would be reduced by half in most cases, meaning that in half of these cases, the perpetrator can go unpunished. The amendment also redefines the conditions for suspending the statute of limitations in the case of repeated criminal activity and links it to the legal conviction of the offender. From the side of the state, the practical implications would be the rehabilitation of recidivism.

The four-way combination of the mentioned fundamental reduction of criminal rates, the increase of the damages limits, changes in the imposition of conditional sentences and changes in statutes of limitation would be a resignation of the state to protect its citizens to effectively enforce justice, and may mean a deviation from the protection of the principles of the rule of law.

The changes being discussed would have a fundamental impact on the clarification of criminal offences. For example, the deployment of wiretapping or an agent could only be used for crimes that carry a maximum sentence of at least five years. However, by changing the length of the sentence, many crimes would be qualified as misdemeanours and thus would not enable the use of either of the mentioned means. According to experts, this may lead to increased crime, because the new regulation would not sufficiently fulfil its preventive function.

The risk of being charged for such crimes as opposed to the potential benefits of carrying out such acts would be incomparably lower, especially for those who are well acquainted with the laws.

Dear Members of Parliament,

In my opinion, the amendment may also represent a violation of the constitution, as it threatens to interfere with the rights of victims to fair legal proceedings.

By abolishing the Special Prosecutor's Office in abbreviated legislative proceedings, over 1,000 live files from the Special Prosecutor's Office are to be transferred to 8 regional prosecutor's offices, and what needs to be emphasized, this is to happen overnight, as the law does not establish any statute of limitations. If there is a change in the supervising prosecutor, they will have to read the file and comprehensively familiarize themselves with the entire matter. This will inevitably take time, as the files have several thousand pages. As a result, there is a real threat of delays in the relevant criminal proceedings, which threatens the right to discuss the matter without unnecessary delays.

The use of the means of criminal law is, by its nature, always associated with the interference with rights, because it is necessary to establish a balance.

Therefore, when setting the rules of criminal law and especially the rules for imposing sentences, the guiding principle cannot only be the interest in that the perpetrators subjectively consider the imposed sentences to be fair, as stated by the proposer in the debate. Such an approach creates a high risk that the punishment of perpetrators will not sufficiently take into account the legitimate interests of the persons harmed by property and economic crime.
If the proposals were to take effect even for one second, as a result of shortening the limitation periods, thousands of already committed property and economic crimes would disappear forever. The responsibility of their perpetrators would also disappear, even in the case of extremely serious crimes that have caused significant financial damages. According to experts' estimates, it will actually be a general amnesty for these acts, where the victims will never get justice. Their position would be significantly worsened by limiting the possibility of claiming damages. And thus, at the very least, there is a risk of the violation of their constitutional rights to property protection. Please also consider the rights of these persons when you vote on the proposals.

I also see the inconsistency of this amendment with the state's positive commitment to effectively prosecute crimes that threaten the interests of citizens protected by the constitution. In its plenary decision of December 10, 2014, the Constitutional Court defined the state's positive commitment in the field of criminal policy. By a simple analogy of this finding, we can conclude that the proposed legislation may become inconsistent with the state's positive commitment to effective preventive measures to protect other values safeguarded by the constitution, and thus inconsistent with the principle of the rule of law.

The mitigation of prison sentences and the wider use of alternative punishments is certainly a legitimate and important topic. However, the building of sufficient personnel and organizational capacities of probation supervision is a necessary condition for the broad application of conditional and alternative sentences. Otherwise, these punishments would not fulfil their purpose. For example, there is a need to increase the number of probation officers to ensure that the convicted actually comply with the restrictions and fulfil the obligations imposed by the court. In the analysis of the effects on the budget of the public administration, employment in public administration and the financing of the amendment prepared by former Minister Karas, it was proposed that the number of probation officers be increased by 200, to ensure that the amendment could adequately respond to the changes it was supposed to bring. The current amendment does not address this area at all.

This is a brief description of some of the most serious objections raised by a section of the professional public, with which I also identify. I appreciate the opinion of the speaker of the parliament, according to which some changes should be made in the text of the proposed amendment in further discussions. However, it should also be added that if it were not for political and public pressure, the amendment of these laws would most likely be in effect today.

Dear Members of Parliament,

You face an important decision. As far as the petitioner is concerned, i.e. the government of the Slovak Republic and the members of the government coalition, no one questions the right of the government majority to change, even in a fundamental way, the individual policies of the state. You have a mandate that came from the election and no sane person in this room can question that. However, winning an election does not mean being able to do everything. Winning the election means taking on the biggest share of responsibility. Responsibility not only for yourselves and those who voted for you, but for the entire country and its future.

I am convinced that the vast majority of you understand and hear the arguments that are being presented here. I am convinced that if anyone else were making such significant changes in a shortened legislative procedure, you would sound the alarm. I have no doubt about it. That is why I ask you to refrain from doing it like this and with such consequences. Significant changes in criminal legislation should be preceded by proper professional discussions and interdepartmental commenting.

I believe that the procedural, substantive and constitutional risks mentioned here can also give you reason to reconsider your position on the proposed amendment. History, which is being written here even these days, will remember it."