Article

The adoption of amendments to the Criminal Code and the Criminal Procedure Code, and in particular their content and scope and the purpose communicated by the submitter, have been the subject of widespread criticism and even civil protests. For this reason, as well as others, we anticipate that the entire legislative process for the draft laws may appear unclear, particularly with regard to the effective date of the amendments or specific parts thereof.

In recent months, the topic of amendments to the so-called 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"). The adoption of these amendments, their content and scope, and the purpose communicated by the submitter have been the subject of widespread criticism and even civil protests. For this reason, as well as others, we assume that the entire legislative process of the draft laws may seem confusing, especially with regard to the entry into force of the amendments or their specific parts. The purpose of this article is to clarify and provide information on important dates and to provide a quick overview of which parts of the amendments have already entered into force, which have been suspended, and what stages the legislative process has gone through.

How did the legislative process proceed?

First, it should be noted that both laws – the Criminal Code and the Criminal Procedure Code – were amended by a single piece of legislation, Act No. 40/2024 Coll., amending Act No. 300/2005 Coll. The Criminal Code, as amended, and amending certain acts (hereinafter also referred to as "Act No. 40/2024 Coll.").

The draft law was discussed by the legislative body in an abbreviated legislative procedure with the following results:

1. I. reading – The draft law was discussed at the 6th session of the National Council of the Slovak Republic, Resolution No. 95 of 26 January 2024.
2. Result of the stage of the process: Record of the resolution/draft resolution of the committees
3. Second reading – The bill was discussed at the 6th session of the National Council of the Slovak Republic on February 8, 2024.
4. Result of the stage of the process: The bill was forwarded to the third reading.
5. Third reading – The bill was debated at the 6th session of the National Council of the Slovak Republic, Resolution No. 100 of 8 February 2024
6. Result of the stage of the process: The bill was forwarded to the editorial office
7. Editing – The law was sent to the Collection of Laws of the Slovak Republic on 29 February 2024

The approved law was subsequently published in the Collection of Laws of the Slovak Republic on March 11, 2024, under number 40/2024.

See the legislative process:

https://www.nrsr.sk/web/Default.aspx?sid=zakony/zakon&MasterID=9577

Which legal regulations does the amendment concern?

Act No. 40/2024 Z. z. concerned many regulations, not only criminal codes:

1. in Article I, it amended and supplemented the Criminal Code
2. in Article II, it amended and supplemented the Criminal Procedure Code
3. in Article III, it amended and supplemented Act No. 162/2015 Coll. on Administrative Court Procedure
4. in Article IV, it amended and supplemented Act No. 372/1990 Coll. on Offences
5. in Article V, it amended and supplemented Act No. 350/1996 Coll. on the Rules of Procedure of the National Council of the Slovak Republic
6. in Article VI, it amended and supplemented Act No. 385/2000 Coll. on Judges and Lay Judges and on Amendments to Certain Acts
7. in Article VII, amended and supplemented Act No. 153/2001 Coll. on the Public Prosecutor's Office
8. in Article VIII, amended and supplemented Act No. 154/2001 Coll. on Public Prosecutors and Legal Trainees of the Public Prosecutor's Office
9. in Article IX, amended and supplemented Act No. 550/2003 Coll. on probation and mediation officers and on amendments to certain acts
10. in Article X, amended and supplemented Act No. 576/2004 Coll. on healthcare, services related to the provision of healthcare and on amendments and supplements to certain acts
11. in Article XI, amended and supplemented Act No. 305/2005 Coll. on social and legal protection of children and social guardianship and on amendments to certain acts
12. in Article XII, amended and supplemented Act No. 297/2008 Coll. on protection against the legalization of proceeds from criminal activity and on protection against terrorist financing and on amendments to certain acts
13. in Article XIII, amended and supplemented Act No. 154/2010 Coll. on the European arrest warrant
14. In Article XIV, it amended and supplemented Act No. 383/2011 Coll. on the representation of the Slovak Republic in Eurojust.
15. In Article XV, it amended and supplemented Act No. 176/2015 Coll. on the Commissioner for Children and the Commissioner for Persons with Disabilities and on amendments to certain acts.
16. in Article XVI, amended and supplemented Act No. 343/2015 Coll. on public procurement and on amendments and supplements to certain acts
17. in Article XVII, amended and supplemented Act No. 91/2016 Coll. on criminal liability of legal persons and on amendments and supplements to certain acts
18. in Article XVIII, amended and supplemented Act No. 432/2021 Coll. on the disciplinary rules of the Supreme Administrative Court of the Slovak Republic and on amendments and supplements to certain acts (disciplinary court rules)

What was the proposed original effective date of Act No. 40/2024 Coll. and what did it concern?

According to the approved wording of the Act, draft Act No. 40/2024 Coll. was to take effect on March 15, 2024, with the exception of Article II, point 52, Article V, Article VI, Article VII points 1 to 18 and 20, Article VIII points 1 to 21, Article XII, Article XIV, Article XVI and Article XVIII, which were to take effect on March 20, 2024.

It was clear from the approved wording of the law that:

1. the amendment to the Criminal Code was to take effect on March 15, 2024 (all points of the amendment to the Criminal Code)
2. the amendment to the Criminal Procedure Code was to take effect on March 15, 2024, except for point 52 (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), which was to take effect on March 20, 2024 (abolition of the Special Prosecutor's Office).

See the approved text of the law:

https://www.nrsr.sk/web/Dynamic/DocumentPreview.aspx?DocID=540530

What was the decision of the Constitutional Court of the Slovak Republic?

As mentioned above, the approval of Act No. 40/2024 Coll. caused a wave of discontent in society and was not accepted by the professional public. The constitutionality of Act No. 40/2024 Coll. with the Constitution of the Slovak Republic and other regulations is currently being reviewed by the Constitutional Court of the Slovak Republic.

In the context of deciding on proposals

1. by the President of the Slovak Republic to initiate proceedings under Article 125(1)(a) of the Constitution of the Slovak Republic
2. by a group of 36 members of the National Council of the Slovak Republic under Article 125(1)(a) of the Constitution of the Slovak Republic
3. a group of 39 members of the National Council of the Slovak Republic to initiate proceedings under Article 125(1)(a) of the Constitution of the Slovak Republic

on the conformity of the Act of 8 February amending and supplementing Act No. 300/2005 Coll. Criminal Code, as amended, and amending certain acts, with the Constitution of the Slovak Republic and other legal regulations, was adopted by the Constitutional Court of the Slovak Republic Resolution of the Constitutional Court of the Slovak Republic No. PL. ÚS 3/2024-112 of February 28, 2024, published in the Collection of Laws of the Slovak Republic under No. 41/2024 Z. z. in a plenary session composed of President Ivan Fiačan and Judges Jana Baricová, Ladislav Duditš, Libor Duľa, Miroslav Duriš, Rastislav Kaššák, Miloš Maďar, Peter Molnár, Peter Straka (judge rapporteur), Ľuboš Szigeti, Robert Šorl and Martin Vernarský, which ruled that:

1. the proposals are accepted for further proceedings in their entirety.
2. It suspends the effectiveness of Article I, Article II, point 39, Article II, point 134, in the part concerning Section 567t(4), and Article XVII of the Act of February 8, 2024, amending and supplementing Act No. 300/2005 Coll. Criminal Code, as amended, and amending certain laws, and
3. the proposal to suspend the effectiveness of the remaining part.

Reasons for the Resolution of the Constitutional Court of the Slovak Republic

In short, the Constitutional Court of the Slovak Republic has suspended all approved amendments to the Criminal Code, the Act on Criminal Liability of Legal Entities, and only certain sections of the Criminal Procedure Code.

According to the Constitutional Court of the Slovak Republic, the reason for suspending the effectiveness of the amendments to the Criminal Code is the possible threat to the fundamental rights and freedoms of injured parties, but also of some prosecuted persons. The Constitutional Court of the Slovak Republic pointed out that when assessing the reasons for suspending effectiveness, an important criterion is the (ir)reversibility of the consequences. "In the case under consideration, failure to suspend the effectiveness and granting of the proposal in the case itself would mean that three amendments to criminal law would be valid within a relatively short period of time," the Constitutional Court of the Slovak Republic states in the grounds for its decision.

Within the framework of the Criminal Code, the Constitutional Court of the Slovak Republic suspended the reduction of penalties for economic crimes, the shortening of limitation periods, and lower penalties for drug-related crimes. In addition, it also suspended certain provisions of the Criminal Procedure Code, specifically those that would have allowed the reopening of already concluded plea agreements. It also suspended provisions introducing a procedural rule whereby criminal prosecution authorities and courts may use evidence obtained unlawfully if it is used only in favor of the accused. Another suspended part concerns the extension of the time limit for lodging an appeal against the accused from six months to three years.

See the Resolution of the Constitutional Court of the Slovak Republic:

https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/2024/41/20240311.html

Which amendments to the criminal codes have therefore entered into force?

It follows from the aforementioned Resolution of the Constitutional Court of the Slovak Republic that

1. the amendment to the Criminal Code within the meaning of Act No. 40/2024 Coll. has been suspended in its entirety by the Resolution of the Constitutional Court of the Slovak Republic
2. 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:
3. "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), which entered into force on 20 March 2024 in accordance with 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. and Article II, point 134, in the part concerning Section 567t(4) - "(4) The provision of Section 370(1) as amended with effect from March 15, 2024, shall also apply to agreements on guilt and punishment approved before March 15, 2024."
7. was suspended by a resolution of the Constitutional Court of the Slovak Republic
8. the other points of Article II entered into force on March 15, 2024.

Which provisions of the Criminal Procedure Code have entered into force?

One of the most significant changes to the Criminal Procedure Code was the abolition of the Special Prosecutor's Office, which was abolished by Act No. 40/2024 Coll. on March 20, 2024. However, prior to the entry into force of the amendment abolishing the Special Prosecutor's Office, an earlier amendment to the Criminal Procedure Code entered into force on March 15, 2024, which significantly affected several provisions of the Criminal Procedure Code.

Overview of changes to the Criminal Procedure Code that came into effect on March 15, 2024:

1. Pursuant to Section 2(6), an obligation is introduced to give priority and expedite the handling of criminal cases in which property has been seized, in addition to criminal cases involving detention.
2. Introduction of a legal definition of a suspect and the rights of a suspect
3. Introduction of a definition of a cooperating person and legal regulation of their advantages
4. Amendment of the provision on the discontinuation of criminal proceedings against a cooperating defendant, which may only be discontinued by a judge for preliminary proceedings
5. The jurisdiction of the Specialized Criminal Court in property and economic crimes is changed so that it will depend on the amount of EUR 7,000,000
6. Mandatory defense will be provided in all proceedings involving a criminal offense for which the maximum penalty is at least 10 years' imprisonment, with the accused being able to waive the right to mandatory defense after initial consultation with a defense attorney
7. The duration of pre-trial detention within the meaning of Section 76(8) is reduced from 5 months to 3 months
8. Detention of a person whose mental state requires placement in a healthcare facility
9. The ordering and execution of searches of other premises and land will be subject to the same rules as the ordering of house searches
10. Changes to the provisions relating to witness compensation
11. The judge for the preliminary proceedings will decide on remedies
12. Change in the rules governing the temporary suspension of charges
13. Introduction of the possibility to review not only the conduct of the police officer but also that of the prosecutor
14. Change in the discontinuation of criminal proceedings under Section 215(1)(a) to (c) of the Criminal Procedure Code
15. Formal decision on the acceptance of an indictment by the court in certain cases
16. Non-acceptance of a guilty plea by the defendant
17. Possibility for a single judge to act in a closed session
18. Possibility of re-examining a case that has been decided in proceedings against a fugitive
19. Changes in appeals within the meaning of Section 370(1) of the Criminal Procedure Code
20. Review of decisions as a result of changes in the law
21. Changes in enforcement proceedings
22. Changes in procedural guarantees for judges in criminal proceedings for the crime of perversion of justice

It will be interesting to see how the Constitutional Court of the Slovak Republic will rule on the conformity of Act No. 40/2024 Coll. with the Constitution of the Slovak Republic and other regulations, and what practical impact the amendments to the criminal codes will have on application practice.