In our previous article, we informed you about the effective date of specific provisions of Act No. 40/2024 Coll., amending Act No. 300/2005 Coll. The Criminal Code, as amended, and amending certain laws (hereinafter also referred to as “Act No. 40/2024 Coll.”), which brought about extensive and fundamental changes to the legal framework 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”)—specifically, in the article we provided further details regarding the differing effective dates of the new legal provisions of the Criminal Code and the Criminal Procedure Code and their individual sections.
As part of the legislative process and the subsequent status of the legislation, we also clarified that the Constitutional Court of the Slovak Republic, by its Resolution of February 28, 2024, Ref. No. PL. ÚS 3/2024-112 (hereinafter the “Resolution of the Constitutional Court of the Slovak Republic”), suspended the effectiveness of certain articles of Act No. 40/2024 Coll.—specifically, it decided to suspend the effectiveness of Art. I, Article II, point 39, Article II, point 134 in the part concerning Section 567t(4), and Article XVII of Act No. 40/2024 Coll. as follows:
a) the amendment to the Criminal Code pursuant to Act No. 40/2024 Coll. was suspended in its entirety by a Resolution of the Constitutional Court of the Slovak Republic
b) the amendment to the Criminal Procedure Code entered into force on March 15, 2024
except for the following parts:
- Article II, point 52
- specifically: “Point 52. In §196(1), second sentence, the words “the Office of the Special Prosecutor, if it concerns the jurisdiction of the Specialized Criminal Court, and” are deleted),
- which entered into force on March 20, 2024, in accordance with the approved text of the bill
- Article II, point 39
- specifically: point 39. Section 119 is supplemented by paragraph 6, which reads: “(6) If evidence has been obtained unlawfully and there is a reasonable presumption that it will be favorable to the accused, law enforcement authorities or the court may use it as evidence in criminal proceedings, but only to the benefit of the accused; this does not apply if the evidence was obtained through unlawful coercion or the threat of such coercion, which were used for the purpose of obtaining evidence in favor of the accused.”
- the effectiveness of which was suspended by a Resolution of the Constitutional Court of the Slovak Republic
- Article II, point 134, in the part concerning Section 567t(4)
- “(4) The provision of Section 370(1) in the wording effective as of March 15, 2024, shall also apply to plea agreements approved prior to March 15, 2024.”
- 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 proceed (not only) in existing court proceedings. Law enforcement authorities and criminal courts had to deal with the current state of the legal framework and correctly apply Act No. 40/2024 Coll. In this sense, the Resolution of the Regional Court in Trenčín (hereinafter also referred to as the “Resolution”) mentioned in our article appears to be groundbreaking, with potential implications for criminal proceedings in general.
In the case, which this regional court decided as the appellate court in the appeal proceedings, the district court had originally rendered a judgment finding the defendant guilty. Since the defendant filed an appeal within the statutory time limit, the judgment did not become final, and the case was submitted to the appellate court for hearing and a decision on the appeal. The appellate court decided the matter by a ruling, SUSPENDING the criminal proceedings against the defendant 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, cit.:
“(1) The appellate court shall suspend criminal proceedingsif it becomes apparent during the appellate proceedings that, after the contested judgment was rendered, any of the circumstances specified in Section 228(2), Section 241(3), § 244(4), or § 283(5), or if it is impossible to serve the defendant with a summons to the public hearing of the appellate court.”
Pursuant to Section 228(2)(e) of the Criminal Procedure Code, cit.:
“(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, the application of which is decisive for the proceedings or the decision on the merits of the case, or”
We consider the aforementioned ruling of the appellate court on the suspension of criminal proceedings to be groundbreaking due to the conclusion that, based on the court’s views in this matter, which we will set forth below, the appellate court concluded that the suspension of the effectiveness of Art. I of Act No. 40/2024 Coll., which was suspended by the Constitutional Court’s resolution, is decisive for the decision on the merits of the case pursuant to the imperative of Article 50(6) of the Constitution of the Slovak Republic, as provided for in Section 228(2)(e) of the Criminal Procedure Code. Therefore, the appellate court was obligated to fulfill the statutory duty imposed by Section 318(1) of the Criminal Procedure Code to decide on the suspension of criminal proceedings in the case at hand, as stated in the operative part of this resolution. In our legal opinion, the key consideration in the appellate court’s decision was therefore whether the suspension of the effectiveness of Article I of Act No. 40/2024 Coll. constitutes a lawful ground for discontinuing criminal proceedings under Section 318(1) of the Criminal Procedure Code (in conjunction with Section 228(2)(e) e) of the Criminal Procedure Code, taking into account the imperative provision of Article 50(1) of the Constitution of the Slovak Republic (The criminality of an act is assessed and punishment is imposed in accordance with the law in force at the time the act was committed; a later law shall apply if it is more favorable to the offender).
In its decision, the appellate court relied, among other things, on Section 1 of the Criminal Procedure Code and the first sentence of Section 2(6) of the Criminal Procedure Code, from which it considers it evident that law enforcement authorities and courts are obligated to proceed strictly in accordance with the provisions of the Criminal Procedure Code, and thus also to decide in accordance with the mandatory provisions of the relevant sections of the Criminal Procedure Code if a factual or legal situation defined in those provisions arises.
In the Resolution of the appellate court, he also expressed the opinion that within the meaning of Section 318(1) of the Criminal Procedure Code, new material facts arose during the appellate 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 February 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 8 February 2024, amending and supplementing Act No. 300/2005 Coll.
the Criminal Code, as amended, and amending and supplementing certain laws (the Act published under No. 40/2024 Coll. following the promulgation of the aforementioned Constitutional Court resolution).
In the court’s opinion, it undoubtedly follows 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 left to 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, e) of the Criminal Procedure Code, the effectiveness of a legal provision or part thereof has been suspended and (cumulatively) whether the legal provision (or part thereof) whose effectiveness has been suspended is decisive for the proceedings or the decision on the merits of the case. From this view, it is therefore clear that the appellate court considers it beyond doubt that the court is not authorized to decide on the suspension of criminal proceedings based on its own assessment or at the court’s discretion, but must decide on the suspension regardless of the facts, as this is a mandatory obligation imposed by law.
Thus, regarding the assessment of whether the statutory 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 from the state (factual and legal) at the time of its decision and was therefore required in this case to examine whether the suspended effectiveness of Article I of Act No. 40/2024 Coll. (extensive amendment to the Criminal Code) is decisive
- for the proceedings (for the course of the proceedings) or
- the decision on the merits of the case
In this matter, the court stated that:
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 course of the proceedings (within the meaning of Section 228(2)(e) of the Criminal Procedure Code); however,
it reached the conclusion that the suspension of the effectiveness of Article I of Act No. 40/2024 Coll., suspended by the Resolution of the Constitutional Court of the Slovak Republic, is decisive for the decision on the merits of the case pursuant to the imperative of Article 50(6) of the Constitution of the Slovak Republic, as required by the provision of Section 228(2)(e) of the Criminal Procedure Code.
The appellate court also justified the above findings by stating that in the absence of the Constitutional Court’s resolution 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 Coll. must also be applied to the case at hand,because they are more favorable to the defendant, if only in terms of the new regulation of the amount of damage under Section 125(1) of the Criminal Code, as a qualifying element of the criminal offense.Pursuant to Article 50(6) of the Constitution of the Slovak Republic (and pursuant to Section 2(1) of the Criminal Code), the provisions of Article I of Act No. 40/2024 Coll., effective as of March 15, 2024, would thus currently have to be applied in the case at hand, had their effectiveness not been suspended by the aforementioned resolution of the Constitutional Court.
In the case at hand, the appellate court also went beyond the scope of the above and stated that it was aware of a differing legal opinion regarding decisions on the suspension of criminal proceedings in similar cases, where it was clearly stated that since the amendment to the Criminal Code had not entered into force, since it was suspended by a resolution of the Constitutional Court of the Slovak Republic, its provisions are not currently decisive for deciding the case itself.
Finally, the appellate court also pointed out that the Constitutional Court’s decision to suspend the effectiveness of a legal provision essentially causes legal uncertainty. This is because such a decision by the Constitutional Court, within the framework of the “checks and balances” among the fundamental branches of state power, constitutes a (lawful) interference with the legislature’s exclusive authority to regulate social relations through laws (in a legally binding manner). Even in the case of valid laws, the rebuttable legal fiction of their constitutionality applies until the Constitutional Court decides otherwise. This legal fiction applies until the final decision of the Constitutional Court declaring the law (legal regulation) unconstitutional, i.e., even during the (provisional) suspension of the law’s (legal regulation’s) effectiveness based on the Constitutional Court’s decision.
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 on the merits of the case in the sense
that a motion to declare a legal regulation inconsistent with the Constitution will simply be granted, and The legislature apparently foresaw the possibility of such legal uncertainty in the future when it established the official duty to suspend criminal proceedings during the period of suspension of a legal regulation’s effectiveness by the Constitutional Court in cases the application of such a legal provision is decisive for the proceedings or the decision on the merits of the case.
In conclusion, the appellate court added that compliance with the legislature’s order to suspend these criminal proceedings preemptively prevents the risk of a future constitutional complaint by the defendant for a violation of his fundamental right under Article 50( 6 of the Constitution of the Slovak Republic as a result of failure to respect the legislature’s imperative to suspend criminal prosecution, should the Constitutional Court not grant the motion to declare the provisions of Article I of Act No. 40/2024 Coll., which are more favorable to the defendant, inconsistent with the Constitution.
In layman’s terms, it follows from the aforementioned 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, since one of the circumstances listed in Section 228(2) of the Criminal Procedure Code has occurred, (specifically subparagraph (e) of the Criminal Procedure Code), since the suspension of the effectiveness of the amendment to the Criminal Code should be considered decisive for the decision on the merits of the case in the specific matter under consideration (again, not decisive for the court’s procedure, but for the court’s decision on the merits) — based on the imperative of Article 50(6) of the Constitution of the Slovak Republic (The criminality of an act is assessed and punishment is imposed in accordance with the law in force at the time the act was committed. A later law shall apply if it is more favorable to the offender). The above should apply until such time as a decision is made on the conformity of Act No. 40/2024 Coll. with the Constitution of the Slovak Republic (and with other legal regulations); otherwise, there is a risk of violating the fundamental right of the affected party as set forth in Article 50(6) of the Constitution of the Slovak Republic.
This stands in contrast to the previously held view that, since the amendment to the Criminal Code has not entered into force—having been suspended by a resolution of the Constitutional Court of the Slovak Republic—its provisions are not currently decisive for adjudicating the matter at hand.
