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1 University of Ss. Cyril and Methodius in Trnava, Faculty of Social Sciences, Bučianska 4/A, 917 01 Trnava, (SLOVAK REPUBLIC) Email: email@example.com.
Slovak Public Prosecution Service, as one of the constitutional institutions in the State performs extremely important functions. For the purpose of their consistent performance, the legislator conferred wide range of powers to public prosecution office. The proper use of these powers, however, is possible only in an independent environment. In an environment that does not allow abusing the granted powers to promote individual or political interests. The question of independence of Slovak Public Prosecution Office is therefore subject to constant discussions, not only among law specialists. In this paper, the author offers a brief analysis of the current status of independence of Slovak Public Prosecution Office and outlines possible solutions.
Public Prosecution Service is one of those public authorities that perform a major role in the society, especially in the field of public prosecution and supervision of compliance with the law. Public Prosecutor’s Office as the representative of public interest must therefore act objectively, regardless of any individual or political interest. It is also this reason why the basic requirements necessary for the proper functioning of public prosecution service include the requirement of its independence. However, the independence itself, respectively the level of its legislative regulation, is subject to continuous professional discussions, in which the real independence of public prosecution service or its necessity is either questioned or in which the emphasis is placed on the need for the absolute independence of the public prosecution and its securing. For this reason, in this paper we will try to briefly analyse the real status of independence of the Slovak public prosecution service.
Public prosecution service and its independence de lege lata
The basic legal rules on Public Prosecution Service are located in an act of the highest legal force, in the Constitution of the Slovak Republic . It should be noted, however, that this document does not regulate the field of Public Prosecution Service in detail, but in Articles 149 to 151, in the first section (Public Prosecution Service of the Slovak Republic) of eighth chapter (Public Prosecution Service of the Slovak Republic and the Ombudsman) provides only a framework regulation of the conditions for the competence and organization of the Public Prosecution Service. In terms of the actual constitutional categorisation, it can be concluded that the Public Prosecution Service does not fall within any of the three components of state power. This stems from the fact that any system of state power has its own regulation located in a separate chapter1, whereby the regulation of the Public Prosecution Service is located also in a separate chapter, apart from the bodies of the legislative, executive and judicial powers. Public Prosecution Service is so, like the Ombudsman and the Supreme Audit Office constitutionally constituted as an independent State body sui generis functioning within the separation of state powers, which cannot be unreservedly incorporated into any of the three systems of state power bodies.
Unlike other organs sui generis (Ombudsman, National Audit Office), which are constitutionally explicitly constituted as independent bodies, the Public Prosecution Service has not been granted attribute of independence. Even the legal definition of Public Prosecution Service given in § 2 of the Act no. 153/2001 Coll. on public prosecution service does not recognize the concept of independence - the Public Prosecution Service is granted only attribute of autonomy. The absence of attribute of independence cannot be regarded as a legislative failure of the Constituent Assembly, as confirmed by the Constitutional Court itself in one of its findings, as noted: “... this function (protection of rights and legally protected interests of individuals and legal entities and the state) with the powers conferred by law, can be performed (by the Public Prosecution Service) without an added attribute of its independence. The Constituent Assembly has provided with attribute of independence only certain authorities and expressly stipulated this fact in the Constitution. Authorities which were not intended to have an attribute of independence are not constitutionally constituted as independent authorities”. Therefore, the independence can not necessarily be considered as conceptual feature of Public Prosecution Service, which was certainly the intention of the Constituent Assembly keeping the door open for a possible transformation of the Public Prosecution Service into the office subordinated to executive power. From this perspective, claims of some experts2 that the Public Prosecution Service is not independent, may be considered to be formally correct and justified and formally corresponding to current status. Nevertheless, it should be noted that the understanding of public prosecution service as a constitutional institution dependent on instructions of other entities or bodies is misleading and
The legal doctrine [2, pp. 149-158], [3, pp. 13] [4, pp. 57] holds the view that independence is one of the fundamental principles of organization of public prosecution service and the essential prerequisite for the proper and undisturbed performance of the functions and mission of public prosecution. No one, no government agency or citizens can interfere with the public prosecutor and vice versa public prosecutor is not entitled to receive any instructions or to fulfil requests of others in carrying out their activities. Public prosecutor must perform his duties impartially and as a representative of the public interest is obliged to act only for the purpose of its protection and its strict enforcement. The independence of public prosecution can be understood in two basic levels - as external independence and internal independence [5, pp. 353]. Both of these forms of independence significantly affect the action of public prosecution service, its proper functioning and performance of its duties when protecting the public interest. However, both of them have a different status and each one of them affects the operation of public prosecution service in another way, in a different extent, and in different fields.
When operating, the external independence is more important than internal independence, since it is based on the absence and inadmissibility of any outside influences, whether of political or other nature. In procedural sense, external independence may be defined as a degree of decision-making autonomy of the Public Prosecutor in relation to other agencies (bodies), state and political institutions, political forces and to individuals [6, pp. 195]. External independence allows public prosecution service to effectively carry out its mission, regardless of individual interests of other entities and parties, regardless of the policy objectives and core beliefs of the government or other political bodies, e.g. the president of the State . It should be noted that at present the reforming systems of public prosecution and other projects aimed at public prosecution also prefer a model ensuring the maximum level of external independence.
Achieving real external independence is quite complicated especially in conditions of countries in which there is a significant social and political change (transformation of totalitarian regimes in democratic regimes). This is also in countries in which political parties and political movements have acquired a significant position of power. In those countries, there are attempts to disrupt the external independence of the public prosecution service and to gain influence over its actions (as an example we can mention efforts of the governments of many countries to have the last word in committees selecting not only public prosecutors but also judges). The subsequent politicization of public prosecution service may lead to many negative phenomena in society, corruption, cronyism, elimination of political opponents. However, free competition of politicians is the basis of legal state .
Ensuring the external independence of the public prosecution service is most problematic in systems where public prosecution service is subject to the executive power. In such systems, the executive power has many important powers in relation to public prosecution service resulting in dependence of public prosecution service on the government in two main fields - in personnel field and in institutional field. Ensuring the external independence is important also in relation to the judiciary. In several countries, the judiciary has extensive powers in relation to public prosecution service. These powers relate to the review of decisions of public prosecutors issued on a discretionary basis, in which competent authority of judicial power may order public prosecutor to file the indictment. Expansion of such powers of the court may, however, cause distortion of not only the basic principles of criminal proceedings, but also of public prosecution service itself. The fact that the court is entitled to impose its will (seeking the need to file the indictment) on the public prosecutor causes that the public prosecutor is becoming only some kind of extended hand of the judge reviewing his own decisions and public prosecutor ceases to be a representative of the public interest.
The external independence of public prosecution service is currently mentioned neither at constitutional level nor in any other act. Some efforts to formally constitute the attribute of independence occurred a few years after the establishment of the independent Slovak Republic, in the adopted Act No. 314/1996 Coll. on the Public Prosecution Service, in which the Public Prosecution Service was defined as “autonomous and independent state body that protects the rights and legally protected interests of natural persons, legal entities and the state”. The Constitutional Court, however, on a proposal of the President of the Republic in its finding no. PL. ÚS 17/963 ruled that Act No. 314/1996 Coll. formally constituting the attribute of independence is incompatible with the Constitution. The reason why the Constitutional Court ruled as mentioned resulted from the fact that the Article 149 of the Constitution did not talk about the independence of the Public Prosecution Service. The Constitution directly constitutes the independence of other bodies, such as the courts or the Supreme Audit Office, but the Public Prosecution Service is constitutionally not linked with an attribute of independence. Since the provisions of the Act on the Public Prosecution Service verbally and formally declared the independence of the Public Prosecution Service, the establishing of this attribute by an ordinary law was contrary to the Constitution.
Problematic aspect related to the issue of external independence of the public prosecution service is also a method of personal constitution of Head of the Public Prosecution Service. In the result of current legislation4 one cannot say that the Prosecutor General is completely independent and free from any political influence. Under the conditions of parliamentary election of candidates for the Prosecutor General, the influence of political parties on the selection of candidates is in fact undeniable and for this reason doubts about his independence from the ruling political group may and must arise. Although political parties declare that the only condition that the candidate must fulfil is the high professional erudition and practical experience, it is more than likely that any ruling political group puts through such person as a candidate for General Prosecutor who is either completely committed or whose views are not at least in stark contrast with the political vision and program of this or that coalition.
In most cases, the question of internal independence is an object of regulation by separate acts, not by the Constitution. Unlike the external independence, a degree of which depends on a range of influences coming from an environment outside of the public prosecution service, a degree of the internal independence comes from the extent of centralization and bureaucratisation of the public prosecution service. Fenyk defines internal independence as “a level of sufficient autonomy of public prosecutors, respectively a level of redundant hierarchical dependence of a particular prosecutorial resort or an individual public prosecutor in the performance of his activities” [2, pp. 152].
Here, the emphasis is placed on the proper, impartial and autonomous execution of the functions of public prosecution service. The requirement of impartiality is usually mentioned in the first place of the status of public prosecutor and it must be present in the organizational structure and internal functioning of any public prosecution service. Basically, the internal independence allows ordinary public prosecutors to exercise their activities imposed by the law without the need to have pre-consent from the superior authority or without confirmation how to act. However, an absolute internal independence of public prosecutors is not admissible since it could lead to many difficulties and new problems. Therefore, impartiality and independence of public prosecutor’s decision making must be controlled and some kind of control can be ensured even in the hierarchical system.
On the other hand, it should also be noted that excessive hierarchy, excessive centralization and bureaucracy lead to the weakening of the autonomy of public prosecutor, his autonomous status and they often are a reason of failures, clumsiness and loss of personal responsibility for the process itself and the outcome of the proceedings. Complete removal of a hierarchy and hierarchical control would not be appropriate and correct, as it would weaken concerted approach of individual cells public prosecution service. Moreover, it could lead to the rise of pressure from various groups at local levels of public prosecution service and to the subsequent increase in the frequency of corruption, cronyism and other unlawful practices. Corruption itself is a negative and persistent phenomenon in human society [9, pp. 18]. It is therefore necessary to maintain the principle of subordination. However, since the relationship of superiority and subordination contain, of course, the risk of abuse of powers, certain guarantees preventing abuse of powers must be secured. Therefore, the Slovak law contains a system of legal safeguards of internal independence of public prosecutors. If the superior public prosecutor issues an instruction addressed to subordinate public prosecutor, this instruction must have written form. However, if the subordinate public prosecutor considers the instruction to be in conflict with the law or with his legal opinion, he may request in writing the superior public prosecutor to be withdrawn from the case.
Here, it should be added that this safeguard still allows fulfilling the unlawful instruction by another public prosecutor. Another legal guarantee of internal independence lies in the fact that the subordinate public prosecutor may refuse to fulfil an instruction if the execution of such instruction would directly and seriously threaten his lives or health or the life or health of his close contact . Also, if the court proceedings enter into a change in the evidential situation, the subordinate public prosecutor may not be bound by the instructions of a superior public prosecutor.
On the contrary, the subordinate public prosecutor is obliged to refuse the fulfilment of the instruction, if its fulfilment would result in committing a crime, misdemeanour, other administrative offense or disciplinary offense5.
What is the way out of the current situation?
The analysis showed us that it is necessary to ensure a greater degree of mainly external independence of Public Prosecution Service. One of the most appropriate means of strengthening the external independence of the Public Prosecution Service may be the change of the current system of appointments to the office of General Prosecutor. The external independence of the Public Prosecution Service would undoubtedly be strengthened through creation a new independent appointing authority with the right to propose a candidate for the Prosecutor General to the President of Slovak Republic. This would weaken the influence of political parties on the selection of candidates, which is in the system of parliamentary elections indisputable. Thus, a possible way of improving the current status would be a creation of some kind of independent personnel committee or commission that would make decisions on the selection of candidate for appointment to a Prosecutor General by the President. The Commission would consist of two groups (categories) of members. Their number would be the same in each group. The first group would be composed of the Prosecutor General and five public prosecutors elected and removed by public prosecutors themselves. The second group would be composed of six persons coming from the outside of public prosecution service. They would have to comply with a set of requirements: impeccability, a law school graduate and practicing law for at least 15 years. At the same time, out of the total number of members, two persons would be elected and removed by the National Council of the Slovak Republic, two persons would be appointed and removed by the Government and two persons would be appointed and removed by the President. Adopting a decision would require the consent of an absolute majority of Commission members. The competence of the Commission should not necessarily be only the selection of a candidate but it could include also making decisions on other questions of personal character (e.g. to carry out disciplinary proceedings against the Prosecutor General, as well as the other public prosecutors).
Ensuring the independence of the public prosecution service is an important prerequisite for the proper functioning of a democratic and legal state. Prosecutorial independence from any other state power enables the public prosecution service to carry out its tasks properly in the public interest.
Subordination of the public prosecution service, in particular, to the executive power is a dangerous step, which may seriously jeopardize the stability of the state and the maintenance of legal peace. It is important to continue in strengthening the independence of public prosecution service, and not only in relation to the outside, but also inside. However, it is important to stress that this process must not lead to a situation in which the public prosecution service would remain without any control.
Independence of any public authority does not mean irresponsibility or a lack of control.
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2. Fenyk, J. (2001). Vešejná žaloba. Díl první, Historie, soucasnost a možný vývoj vešejné žaloby. Institut Ministerstva spravedlnosti Šeské republiky pro další vzelávání soudcn a státních zástupcn, Praha,
3. Svák, J. (1995). Organizácia a cinnost orgánov ochrany práva. VydavateZské oddelenie Právnickej fakulty Univerzity Komenského, Bratislava,
4. Hoffmann, M. (2010). Prokuratúra SR - Orgán ochrany práva. Eurokódex, Bratislava,
5. Delmas-Marty, M., Spencer, J. R. (2002). European criminal procedures. Cambridge University Press, Cambridge,
6. Žáárský, Z. (1994). Závislý a nestranný státní zástupce? Právní praxe: casopis ceské justice 42(4), pp. 195-205.
7. Horváth, P. (2005). Prezident v politickom systéme Slovenskej republiky. Slovenská politologická revue 3, pp. 24-54.
8. Horváth, , Machyniak, J. (2014). Prezidentské voZby 2014 na Slovensku. Slovak Journal of Public Policy and Public Administration 1 (2), pp. 150-159.
9. Bocáková, O. (2012). Korupcia ako negatívny a pretrvávajúci jav v Zudskej spolocnosti. in: Bezbednosna i antikorupcijska politika u Evropskoj unii: zbornik naucnih radova sa medunarodne naucne 11 - 13 oktabar 2012, Backi Petrovac - Gložan, Srbija, Srbsko Razvojno udruženje, Srbija, pp. 18-25.
10. Machyniak, (2013). Position of Public Administration in Democratic and Legally Consistent State (Case Study of Slovak Republic). Právní ROZPRAVY 2013, Mezinárodní vedecká konference oblasti práva a právních ved
– Právní ROZPRAVY 2013 s podtitulem “promeny práva“, rocník III, 4. – 8. února 2013, Hradec Králové, Šeská republika. Magnanimitas, Hradec Králové, pp. 637-643.
1. The status of bodies of legislative power (National Council of the Slovak Republic) is regulated by the 5th Chapter of the Constitution, the status of bodies of executive power (President of the Slovak Republic and the Government of the Slovak Republic) is regulated by the 6th Chapter of the Constitution and, finally, the status of bodies of judicial power (Constitutional Court and ordinary courts) is regulated by the 7th Chapter of the Constitution.
2. http://domov.sme.sk/c/5936840/centes-prokuratura-nie-je-nezavisla-ale-samostatna.html, accessed April 2017.
3. Finding of the Constitutional Court of the Slovak Republic no. PL. ÚS 17/96.
4. Parliamentary election of the candidate for appointment to function of Prosecutor General.
5. § 6 of the Act no. 153/2001 Z. z. on Public Prosecution Service.