S L O V A K I A

Bratislava the 14 September, 2007

BUREAU

OF THE CONSULTATIVE COUNCIL

OF EUROPEAN PROSECUTORS

(CCPE – Bu)

Questionnaire – alternatives to prosecution in Council of Europe member States – replies

Does your country follow a system of mandatory or discretionary prosecution?

In principle, within the criminal proceedings of the Slovak Republic the legality principle applies as defined in the Section 2, par. 5 of the Code of Criminal Procedure as follows:

“Within criminal proceedings, a prosecutor represents the State. A prosecutor shall have the duty to prosecute all criminal offences of which he gained knowledge unless provided otherwise in this Act, an international treaty promulgated in legally defined manner or a decision by an international organization by which the Slovak Republic is bound.”

However, there are some exceptions from that principle. Primarily, a prosecutor may not criminally prosecute some persons as follows:

- the individuals exempt from the operation/competence of prosecuting and adjudicating bodies and courts (Section 8, par. 1, Code of Criminal Procedure - individuals enjoying immunities and privileges pursuant to a law or in accordance with the international law; Section 8, par. 2, Code of Criminal Procedure – in order to prosecute a deputy of a National Council of the Slovak Republic, the consent by the National Council of the Slovak Republic is required; for criminal prosecution of a judge, judge of the Constitutional Court and the General Prosecutor, the consent by the Constitutional Court is required),

- if criminal prosecution is inadmissible (Section 9, par. 1, Code of Criminal Procedure includes exhaustive list of such cases – statutory bar on criminal prosecution, young age of a perpetrator, death of a perpetrator or in a case where a perpetrator has been declared dead, plea of res judicata, if there is a condition of injured party’s consent for the criminal prosecution and no consent was given, if so provided by an international treaty),

- if so provided by an international treaty or decision by an international organization by which the Slovak Republic is bound (e.g. Convention on the Transfer of Sentenced Persons for the purpose of serving sentence of deprivation of liberty in their State of origin, published as regulation no. 123/180, Coll.) – i.e. restriction of territorial and personal competence of the State.

In some exhaustively listed cases, a prosecutor must not/is not obliged to prosecute some persons. It applies in the following cases:

- decision not to proceed prior to commencement of criminal prosecution on grounds of inexpediency i.e. if a sentence to which a criminal prosecution might lead is not significant compared to a sentence that had been validly imposed to an accused person for another criminal offence or if disciplinary decision has already been taken by another authority, foreign court or by an authority competent to proceed on infraction or other administrative delict, and if such decision may be deemed as sufficient (Section 197, par. 2, code of Criminal Procedure, with reference made to the Section 215, par. 2, Code of Criminal Procedure,

- discontinuance of criminal prosecution due to its inexpediency (Section 215, par. 2, Code of Criminal Procedure),

- discontinuance of criminal prosecution of an accused aiding justice if such individual significantly participated in revealing corruption, criminal act of plotting, establishing and supporting of criminal group, criminal act of establishing, plotting and supporting of terrorist group, or a crime committed by an organized group, criminal group or terrorist group, or if such person assisted in detecting or providing evidence on perpetrator of such crime and if the interest of society in revealing such criminal act prevails over interest to criminally prosecute such accused person; it is impossible to discontinue criminal prosecution of organizer, abettor or orderer of criminal act in the detection of which such individual had participated himself (Section 215, par. 3, Code of Criminal Procedure),

- conditional discontinuance of criminal prosecution (Section 216, par. 1, Code of Criminal Procedure)

- conditional discontinuance of criminal prosecution of accused person aiding justice (Section 218, par. 1, Code of Criminal Procedure),

- approval of a conciliation and discontinuance of criminal prosecution (Section 220, par. 1, Code of Criminal Procedure)

- suspension of criminal prosecution of an accused aiding justice (Section 228, par. 3, Code of Criminal Procedure).

In addition, there is the institute of temporary postponement of accusation (Section 205, par. 1, Code of Criminal Procedure) pursuant to which the police upon prior consent by prosecutor may, for necessary time period, postpone accusation of an individual significantly participating in revelation of corruption, or of crime of establishing, plotting or supporting criminal group, or of crime of establishing, plotting and supporting terrorist group, or of crime committed by an organized group, criminal group or terrorist group, or in detection of a perpetrator of such crime if the accusation of such person made excessively difficult the clarification of any of the mentioned crimes or the detection of the perpetrator. It is impossible to temporary postpone accusation of organizer, abettor or orderer of a crime in the revelation of which the accused participated himself.

Has the situation changed during the last two years or is a change envisaged?

After adoption of the new Code of Criminal Procedure (Act no. 301/2005, Coll.) effective since 1^st January, 2006, the re-codification process was terminated of the Slovak penal law. New institute of conditional discontinuance of criminal prosecution of accused aiding justice (Section 218, Code of Criminal Procedure) has been introduced. Based on application experience, the terms and conditions for use of institutes of conditional suspension of criminal prosecution (Section 216, Code of Criminal Procedure) and of conciliation (Section 220, Code of Criminal Procedure) have been adapted/modified to make the proceedings more simple, fast, cost saving and to widen room for use of those alternative methods to terminate criminal prosecution. In accordance with the call made by the Conference of General Prosecutors to implement the principle of necessity to punish corruption and criminal acts committed by public office- holders, the adopted legal regulation excludes application of alternative measures in such cases.

In your country, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006? Amongst those, what is the proportion of alternative to prosecution responses?

2005 % 2006 %

terminated criminal prosecution

of identified individuals 64 451 100 46 491 100

terminated in the prosecution service

by submitting motion to conclude

agreement on guilt and punishment - - 2 916 6,27

conditional discontinuance of criminal

prosecution by a prosecutor 3 048 4,72 5 200 11,18

prosecutor’s decision to approve

conciliation 169 0,26 583 1,25

In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which. Is that choice definitive or can it be challenged?

If an offence is committed, the judicial authorities are obliged to proceed exclusively upon provisions of penal law. There is no possibility to consider an offence like administrative delict or to deal with a matter within civil law.

On the other side, the Code of Criminal Procedure gives the possibility to a prosecutor (as well as to a court after incrimination) to use a range of alternative procedural methods (the so-called “diversions”) that are stated in the item no. 1) of this questionnaire. The consequence of these alternative procedures is that a perpetrator is not sentenced to whom the guilt has been proved but, educational and preventive measures may apply to him (probationary period, obligation to pay damages, appropriate restrictions conducting a perpetrator towards proper life e.g. prohibition to visit night clubs, prohibition of use of alcoholic drinks etc.).

In the cases of conditional discontinuance of criminal prosecution and approval of conciliation, major number of offences show conflict between accused and injured whilst interest in settling their relations prevails over the interest of the state in sentencing the offender.

In the cases applied on individuals aiding justice – suspension of criminal prosecution of accused aiding justice, conditional discontinuance of criminal prosecution of an accused aiding justice and discontinuance of criminal prosecution of an accused aiding justice, the criminal offence (criminal offences of corruption, criminal offence of establishing, plotting and supporting of criminal group, criminal offence of establishing, plotting and supporting of terrorist group or criminal offence committed by organized group, criminal group or terrorist group) significantly affects public interest and the state’s interest in revealing such extreme forms of criminal activities and in detecting and proving guilt of the perpetrators thereof prevails over the interest of criminally prosecuting and sanctioning such accused who contributed to reveal, detect or obtaining proves of such crimes.

Remedial measure is admissible against decisions to discontinue criminal prosecution, to conditionally suspend criminal prosecution, to conditionally suspend criminal prosecution of an accused aiding justice i. e. complaint that the accused and injured may submit, and if so decided by a court, also a prosecutor may submit such complaint. Use of the institutes of conditional suspension of criminal prosecution and of approval of conciliation are conditioned also by the consent given by the accused party, which is the expression of the accused individual’s right to verbal hearing of his matter before impartial and independent court (Article 6, European Convention on the Protection of Human Rights and Fundamental Freedoms). Furthermore, injured party’s consent is prerequisite of approval of conciliation.

Who decides on this choice? What is the specific role of the prosecutor?

The prosecutor decides on the choice of an alternative manner to terminate criminal prosecution within pre-trial proceedings; that decision is made on the basis of his own discretion but, of course, within the scope of strictly defined legal conditions. The prosecutor can do so upon police proposal or even without it.

It has to be underlined that in any case, it is exclusively a measure taken within penal law.

Are there criteria for abandoning the criminal prosecution approach?

Criteria (terms and conditions) for abandoning regular criminal proceedings i.e. applying relevant alternative measure – result from the different provisions of the Code of Criminal Procedure that regulate the respective institutes.

Could it happen that a serious offence escapes any prosecution because of alternative measures?

As was already said for the cases of serious crimes (criminal acts of corruption, criminal act of establishing, plotting and supporting of criminal group, criminal act of establishing, plotting and supporting of terrorist group or criminal act committed by an organized group or by terrorist group) where the public interest is significantly affected, the criminal prosecution may be terminated by way of alternative method. It applies to cases where revelation of a criminal act and proving guilt of the perpetrators would be practically impossible without active participation/involvement of one of the perpetrators.

Those alternative measures may not apply to organizer, abettor or orderer of a criminal act.

Are victims informed beforehand, consulted, and can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?

Strict respecting of the interest of the victims of the criminal offence is prerequisite for conditional suspension of criminal prosecution and for approval to conciliation and for suspension of criminal prosecution. Compensation of damages caused by an act, conclusion of agreement with the injured party on such compensation or taking any other measure by the accused to compensate a damage caused is prerequisite to the application of such institutes. Furthermore, as for the institute of conciliation, any detrimental consequence of a crime of non property nature has to be removed (e.g. feeling of injustice/wrong etc.). As mentioned before, an injured party may submit remedial measure against decision to conditionally suspend criminal prosecution (superior prosecutor shall decide on it) and the conciliation may only be approved if the injured party’s consent was given – such consent guarantees that such decision shall be made only in the case that any consequence of the act committed by an accused was removed and conflicts between accused and injured party were settled – i.e. if the conciliation was reached.

Given that the response chosen gives rise to obligations in respect of the person subjected to it – such as the reparation of damage – are they able to lodge an appeail with an impartial authority 9for example, for validation by a judge of a restraining order or an obligation to undergo training proposed by way of settlement)?

As mentioned before, the accused party’s consent (which is the expression of the guarantee of his right to oral trial before impartial and independent court – Article, 6, European convention on Human Rights and Fundamental Freedoms) is the prerequisite for application of the institute of conditional suspension of criminal prosecution which institute allows to optionally impose also some adequate restrictions leading the accused to proper life and ensuring that the accused shall refrain from activities that had directed him to commission of the criminal offence. For that reason and in the case that the accused does not agree with such procedure, or with conditions imposed, he may lodge an appeal with a court in order to seek hearing of his criminal case.

Can you give specific examples of alternatives to prosecution which you see as particularly well suited to the prevention of reoffending by the perpetrator and consideration of victim’s interests?

We see the institute of conditional suspension of criminal prosecution as particularly well suited way of termination of criminal prosecution from the point of view of taking into regard the interests of the victim of the criminal offence. Application of that institute is conditioned by reparation of damage or/and by conclusion of the agreement on reparation of damages between the accused and the victim and by taking any other appropriate measure in order to secure compensation of damages. It is important from the point of view of crime prevention that while applying this way of termination of criminal prosecution, probationary period is defined for one to five years; after elapse of that time, the examination is made to find whether the accused had proper life and whether he paid damage caused.

Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?

Such method does not exist in Slovakia.

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Can you provide the contact details (with their consent) of someone clearly identified as a specialist on these questions and supply examples of their work to back up your choice?

In the Special Prosecution Office of the General Prosecutor’s Office of the Slovak Republic, prosecutors deal with the alternatives to prosecution within their regular tasks. For that issue, no specialist has been designated. Mr. Maroš Žilinka, prosecutor, deals with this issue on theoretical and legal level and he also publishes articles on it.

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