RULING OF THE CONSTITUTIONAL COURT OF THE SLOVAK REPUBLIC ON THE COMPLIANCE OF THE PROVISION OF SECTION 363 OF THE CRIMINAL PROCEDURE CODE WITH THE CONSTITUTION OF THE SLOVAK REPUBLIC

#84Ruling of the Constitutional Court of the Slovak Republic on the compliance of the provision of Section 363 of the Criminal Procedure Code with the Constitution of the Slovak Republic

On 21 June 2021, the Constitutional Court of the Slovak Republic issued the Ruling PL. ÚS 1/2022-270 in the matter of assessment of compliance of the provisions of § 363 to 367 of Act No. 301/2005 Coll. of the Code of Criminal Procedure (hereinafter referred to as the "Code of Criminal Procedure") with the Constitution of the Slovak Republic.

The provisions of section 363 et seq. are an extraordinary remedy at the pre-trial stage of criminal proceedings and allow the Attorney General of the Slovak Republic to annul a final decision of a prosecutor or a police officer if the law was violated by such a decision or in the proceedings preceding it. No appeal is admissible against this decision.

The Constitutional Court considered a proposal by the President of the Slovak Republic and a group of members of the National Council. In their petitions, the petitioners argued that the decisions of the Prosecutor General of the Slovak Republic under the provisions of Article 363 of the Code of Criminal Procedure are final, non-reviewable and his legal opinion is binding on the law enforcement authorities. This, according to the applicants' argument, makes decisions under the contested provisions an easily abusable and therefore constitutionally questionable institution in a democratic society. In their arguments, the applicants also referred to interference with the independence of the judiciary, in that the Prosecutor General decides on applications to proceed under section 363 even in criminal cases in which the lawfulness of charging a particular person has already been finally decided by the court in the preparatory proceedings, namely when assessing the substantive grounds for detention, in which the judge is primarily concerned with the merits of the criminal prosecution.

In its ruling, the Constitutional Court did not satisfy the petitioners, since according to the Constitutional Court the contested provisions, resp. decisions of the Attorney General issued on their basis, do not interfere with judicial power, do not replace the effects of the decision of the judge for preliminary proceedings by his own decisions, do not take away the effects of judicial decisions, within the limits of their application, which the Constitutional Court in its ruling states and states that such a decision of the Attorney General is a constitutionally acceptable interference with legal certainty established by a final decision of a police officer or a public prosecutor, and finally, do not violate the right to an effective and efficient investigation.

The annulment of the charging order also does not mean "the end of the investigation", as it is often mentioned in public discussion or in the media space. Indeed, the Attorney General will either make the decision himself or instruct the body whose decision is at issue to rehear and decide on the matter. This procedure therefore also allows the police officer to reinstate the charges, but he is already bound by the Attorney General's decision and must stay within the bounds of his decision and avoid the faults that have been pointed out to him. Similarly, the decision of a lower-ranking public prosecutor, who annuls an unlawful decision of a police officer by means of an ordinary remedy, has a similar effect in annulling an order to bring charges.

It is important to point out that the prosecutor is the 'dominus litis' of the pre-trial proceedings and it is his duty to supervise the legality of the pre-trial proceedings. This institute is an essential tool in the system of checks and balances in the supervision of the legality of criminal proceedings. Its aim is to ensure that the accused's right to a fair trial, which includes prosecution only on lawful grounds as provided for in the Constitution of the Slovak Republic, is realised. Therefore, insofar as there are controversies about the content of the contested provisions, they should be resolved through the standard legislative process and expert debate.