Article

In our previous article, we informed you about the effectiveness of specific provisions of Act No. 40/2024 Coll., amending Act No. 300/2005 Coll. Criminal Code, as amended, and amending certain acts (hereinafter also referred to as "Act No. 40/2024 Coll."), which brought about extensive and fundamental changes to the legal regulation of criminal codes, namely Act No. 300/2005 Coll. CRIMINAL CODE (hereinafter also referred to as the "Criminal Code") and Act No. 301/2005 Coll. CRIMINAL PROCEDURE CODE (hereinafter also referred to as the "Criminal Procedure Code"), and in the article we provided more detailed information on the different dates of entry into force of the new legal regulation of the Criminal Code and the Criminal Procedure Code and their individual parts.

In the course of the legislative process and the subsequent state of legislation, we also clarified that the Constitutional Court of the Slovak Republic, by its Resolution of the Constitutional Court of the Slovak Republic of February 28, 2024, ref. no. PL. ÚS 3/2024-112 (hereinafter referred to as the "Resolution of the Constitutional Court of the Slovak Republic"), suspended the effectiveness of certain articles of Act No. 40/2024 Z. z. - specifically decided to suspend the effectiveness of Article I, Article II, point 39, Article II, point 134, in the part concerning § 567t(4) and Article XVII of Act No. 40/2024 Z. z. as follows:

a) the amendment to the Criminal Code within the meaning of Act No. 40/2024 Coll. was suspended in its entirety by the Resolution of the Constitutional Court of the Slovak Republic

b) the amendment to the Criminal Procedure Code entered into force on 15 March 2024

with the exception of the following parts:

1. Article II, point 52
2. specifically: "point 52. In §196(1), second sentence, the words "the Special Prosecutor's Office, if it concerns the jurisdiction of the Specialized Criminal Court, and" are deleted),
3. which entered into force on 20 March 2024 pursuant to the approved wording of the draft law
4. Article II, point 39
5. specifically: point 39. Section 119 is supplemented by paragraph 6, which reads: "(6) If evidence has been obtained unlawfully and there is a reasonable assumption that it will testify in favor of the accused, the criminal justice authorities or the court may use it as evidence in criminal proceedings, but only in favor of the accused; this does not apply to evidence obtained by unlawful coercion or threat of such coercion used for the purpose of obtaining evidence in favor of the accused."
6. was suspended by Resolution of the Constitutional Court of the Slovak Republic
7. Article II, point 134, in the part concerning Section 567t(4)
8. "(4) The provision of Section 370(1) as amended effective from March 15, 2024, shall also apply to agreements on guilt and punishment approved before March 15, 2024."
9. was suspended by Resolution of the Constitutional Court of the Slovak Republic

Regardless of the effectiveness of Act No. 40/2024 Coll. and its parts or the aforementioned suspension of effectiveness, it is necessary to continue proceedings (not only) in existing court proceedings. Law enforcement authorities and criminal courts had to deal with the current state of the law and apply Act No. 40/2024 Coll. correctly. In this sense, the Resolution of the Regional Court in Trenčín (hereinafter also referred to as the "Resolution") referred to in our article appears to be groundbreaking with a possible impact on criminal proceedings in general.

In the case decided by this regional court as the court of appeal, the district court originally found the defendant guilty. As the defendant lodged an appeal within the statutory time limit, the judgment did not become final and the case was referred to the court of appeal for consideration and decision on the appeal. The appellate court ruled on the case by a resolution that the criminal proceedings against the defendant were SUSPENDED pursuant to Section 318(1) in conjunction with Section 228(2)(e) of the Criminal Procedure Code.

Pursuant to Section 318(1) of the Criminal Procedure Code, quote:

"(1) The court of appeal shall discontinue criminal proceedingsif, in the appeal proceedings, it becomes apparent that, after the contested judgment was delivered, any of the circumstances referred to in Section 228(2, Section 241(3), Section 244(4) or Section 283( 5, or if it is impossible to serve the defendant with a summons to the public hearing of the court of appeal."

Pursuant to Section 228(2)(e) of the Criminal Procedure Code, quote:

"(2) A police officer shall suspend criminal proceedings if

e) the Constitutional Court or the Court of Justice of the European Union suspends the effectiveness of a legal provision or part thereof whose application is decisive for the proceedings or decision in the case, or"

We consider the above-mentioned decision of the appellate court to suspend criminal proceedings to be groundbreaking because it concludes that, based on the court's opinions in this case, which we will further elaborate on, the appellate court concluded that the decision of the constitutional court suspending the effectiveness of Article I of Act No. 40/2024 Z. is decisive for the decision in the case itself, as provided for in Section 228(2)(e) of the Criminal Procedure Code. Therefore, the appellate court was obliged to comply with the statutory obligation imposed by Section 318(1) of the Criminal Procedure Code to decide on the discontinuation of criminal proceedings in the case at hand, as stated in the operative part of this decision. to decide on the discontinuation of criminal proceedings in the case under consideration, as stated in the operative part of this ruling. In our legal opinion, the key factor in the decision of the appellate court was therefore the assessment of whether the suspension of the effectiveness of Article I of Act No. 40/2024 Coll. is a legal ground for discontinuing criminal proceedings under Section 318(1) of the Criminal Procedure Code (in conjunction with Section 228(2)(e) of the Criminal Procedure Code, taking into account the imperative nature of Article 50( of the Constitution of the Slovak Republic (the criminality of an act is assessed and the punishment is imposed according to the law in force at the time when the act was committed; a later law shall apply if it is more favorable to the perpetrator).

In its decision, the Court of Appeal based its decision, inter alia, on Section 1 of the Criminal Procedure Code and Section 2( 6, first sentence, of the Criminal Procedure Code, from which it considers it clear that the criminal justice authorities and courts are obliged to proceed strictly in accordance with the provisions of the Criminal Procedure Code, i.e. also to decide in accordance with the imperatives of the relevant provisions of the Criminal Procedure Code if a factual or legal situation defined in those provisions arises.

In its resolution, the appellate court also expressed the opinion that within the meaning of Section 318(1) of the Criminal Procedure Code , new material facts arose during the appeal proceedings, namely the promulgation of Act No. 40/2024 Coll. and the promulgation of the resolution of the Constitutional Court of the Slovak Republic of 28 February 2024, ref. no. PL. ÚS 3/2024-112, which, in point 2, among other things, suspended the effectiveness of Article I of the Act of February 8, 2024, amending Act No. 300/2005 Coll. Criminal Code, as amended, and amending certain acts (published under No. 40/2024 Coll. after the Constitutional Court's decision was announced).

In the opinion of the court, it is clear from the cited provisions of the law that, pursuant to Section 318(1) of the Criminal Procedure Code, the appellate court has a statutory obligation to suspend criminal proceedings if the circumstance specified in Section 228(2)(e) of the Criminal Procedure Code comes to light. The obligation to decide on the suspension of criminal proceedings is not at the discretion of the appellate court, but is a mandatory legal obligation. Therefore, when assessing whether the appellate court should decide to suspend criminal proceedings, the only decisive factor is whether, within the meaning of Section 228(2)(e) of the Criminal Procedure Code, the effectiveness of a legal regulation or part thereof has been suspended and (cumulatively) whether the legal regulation (or part thereof) whose effectiveness has been suspended is decisive for the proceedings or decision in the case itself. From this view, it is clear that the appellate court has no doubt that the court is not entitled to decide on the suspension of criminal proceedings on the basis of its own assessment or at its own discretion, but must decide on the suspension regardless of the facts, as this is a mandatory obligation imposed by law.

Thus, on the question of assessing whether the legal conditions for a decision to suspend criminal proceedings under Section 318(1) of the Criminal Procedure Code have been met, the appellate court emphasized that the court is required to proceed on the basis of the (factual and legal) situation at the time of its decision and was therefore required in this case to examine whether the suspended effect of Article I of Act No. 40/2024 Coll. (extensive amendment to the Criminal Code) was decisive

1. for the proceedings (for the procedure in the proceedings) or
2. the decision in the case itself

In this case, the court stated that

1. that it did not find that the suspension of the effectiveness of Article I and thus of the Criminal Code by the Resolution of the Constitutional Court of the Slovak Republic could be decisive for the procedure in the proceedings (within the meaning of Section 228(2)(e) of the Criminal Procedure Code), but
2. it concluded that the suspension of the effectiveness of Article I of Act No. 40/2024 Coll. by the Resolution of the Constitutional Court of the Slovak Republic is, on the basis of the imperative provision of Article 50(6) of the Constitution of the Slovak Republic, decisive for the decision in the case itself, as provided for in Section 228(2)(e) of the Criminal Procedure Code.

The appellate court also justified the above findings by stating that, in the absence of a resolution of the Constitutional Court published under No. 41/2024 Coll., pursuant to Article 50(6) of the Constitution of the Slovak Republic and also pursuant to the valid and effective Section 2 of the Criminal Code, the provisions of Article I of Act No. 40/2024 Z. z. would also have to be applied to the case in question,as they are more favorable to the defendant only in terms of the new regulation of the amount of damage under Section 125(1) of the Criminal Code as a qualifying feature of a criminal offense. According to Article 50(6) of the Constitution of the Slovak Republic (also according to Section 2(1) of the Criminal Code), the provisions of Article I of Act No. 40/2024 Z. , effective from 15 March 2024, if their effectiveness had not been suspended by the above-mentioned resolution of the Constitutional Court.

The appellate court also went beyond the above in the case under consideration and stated that it was aware of a different legal opinion on the decision to suspend criminal proceedings in similar cases, where it was clearly stated that since the amendment to the Criminal Code had not entered into force, as it had been suspended by a resolution of the Constitutional Court of the Slovak Republic, its provisions were not decisive for the decision in the case itself.

Finally, the appellate court also pointed out that the decision of the Constitutional Court to suspend the effectiveness of a legal provision essentially causes legal uncertainty. This is because such a decision of the Constitutional Court, within the framework of the mutual "checks and balances" between the fundamental components of state power, (legally) interferes with the exclusive power of the legislature to regulate social relations by means of laws (in a legally binding manner). Even in the case of valid laws, there is a rebuttable legal fiction of their conformity with the constitution until the constitutional court decides otherwise. This legal fiction applies until the final decision of the constitutional court declaring the law (legal regulation) to be unconstitutional, i.e. even during the (provisional) suspension of the effectiveness of the law (legal regulation) based on the decision of the constitutional court.

The suspension of the effectiveness of a legal regulation by the constitutional court cannot have the effect of prejudging the final decision of the constitutional court in the case itself in the sense that that the proposal to declare the legal regulation unconstitutional will only be granted and The legislator was apparently aware of the possibility of such legal uncertainty in the future when establishing the official obligation to suspend criminal proceedings during the suspension of the effectiveness of a legal regulation by the constitutional court in the event the application of such a legal provision is decisive for the proceedings or decision in the case itself.

In conclusion, the appellate court added that compliance with the legislature's order to suspend this criminal prosecution prevents the risk of a future constitutional complaint by the defendant for violation of his fundamental right under Section 50( 6 of the Constitution of the Slovak Republic as a result of failure to respect the legislature's imperative to suspend criminal proceedings if the Constitutional Court did not grant the request to declare the provisions of Article I of Act No. 40/2024 Z. z. more favorable to the defendant unconstitutional.

In layman's terms, it follows from the above opinions of the appellate court that the courts should proceed ex officio to suspend criminal proceedings or prosecutions pursuant to Section 318(1) of the Criminal Procedure Code, as one of the circumstances specified in Section 228(2) of the Criminal Procedure Code (specifically in Section 228(2)(e) of the Criminal Procedure Code) has arisen, since the suspension of the amendment to the Criminal Code should have been suspended in the specific case under consideration, as the amendment to the Criminal Code was repealed by Act No. 40/2024 Z. z. 2 of the Criminal Procedure Code (specifically in letter e) of the Criminal Procedure Code) have occurred, since the suspension of the effectiveness of the amendment to the Criminal Code should be considered decisive for the decision in the specific case under consideration (again, not decisive for the court's procedure, but for the court's decision in the case) - on the basis of the imperative provision of Article 50(6) of the Constitution of the Slovak Republic (The criminality of an act shall be assessed and the punishment imposed in accordance with the law in force at the time when the act was committed. A later law shall apply if it is more favorable to the perpetrator). The above should apply until a decision is made on the conformity of Act No. 40/2024 Coll. with the Constitution of the Slovak Republic (and other legal regulations), otherwise there is a risk of violating the fundamental right of the affected entity referred to in Article 50(6) of the Constitution of the Slovak Republic.

This is in contrast to the opinion presented so far, which is that since the amendment to the Criminal Code did not enter into force because it was suspended by a resolution of the Constitutional Court of the Slovak Republic, its provisions are not decisive for the decision in the case itself.