Relationship between the Public Prosecutor and the Minister of Justice
Chapter II
Relationship between the Public Prosecutor and the Minister of Justice
The position of the prosecution service within the government system
The prosecution service is an independent, hierarchical and uniform organisation headed by the Prosecutor General in which the prosecutors act in terms of subordination and superiority (sect. 2, Public Prosecution Service Act). The prosecution service is in no way subordinated to the Government, to the Minister of Justice or to any other executive or judicial body. The prosecution service is only accountable to the National Council (Parliament) through the Prosecutor General.
There is no uniform opinion on whether the prosecution service forms part of the executive or judicial power, or on whether it is a body sui generis on the edge of those two powers, or possibly, on whether there is a need to consider a fourth power. This fourth power would be the controlling power which could consist of the prosecution service, possibly together with the Supreme Control Office and the ombudsman. The Constitution does not place the prosecution service within the executive or judicial power, but contains a separate Title VIII dedicated to it. The last Constitution of the unified Czecho-Slovak Republic (in force from 1960 until 1992) contained a Title VIII: ‘The Courts and the Prosecution Service’. However, even during the period that it was in force, the opinion prevailed that the prosecution service did not form part of the judicial power but it was a body sui generis, between the executive and judicial powers. That was also the opinion of the authors of the Commentary on the Constitution. That is to say, some of the prosecution service’s competencies have got the attribute typical for the executive power such as representation before the court, or representation of the State in certain fiscal litigations. At the same time, some of the prosecution service’s competencies are more specific for the judicial power such as deciding penal cases other than by bringing a criminal action, for example approving an extra-judicial settlement. Nevertheless, some typical elements are missing when comparing the prosecution service with the executive power, like the right to issue generally binding regulations, to control their observance as well to sanction those failing to observe them.
Apart from the unclear position of the prosecution service within the system of division of powers, it is obvious from the wording of the Constitution that the prosecution service is not subordinated to the Government as the paramount body of executive power. This also applies in relation to the President of the Republic who represents a government body explicitly integrated into the executive power according to the Constitution. According to the Constitutional Courts’ opinion, the Constitution has expressed the internal division of powers also within the executive system when dividing the powers and competencies between the Government and the President. That is why the prosecution service is considered a body vested with specific powers and competencies, and separated from both Government and state administration, even if it was a body belonging to the executive power.
The legal status of the prosecution service is directly based on the Constitution that contains a separate Title on: The Prosecution Service and the public guardian of rights. Its first part includes three articles stipulating that the prosecution service protects the rights and interests of natural persons and legal entities and the State protected by law. It also stipulates that the prosecution service is headed by the General Prosecutor appointed and recalled by the President upon a proposal of the Parliament, and that a law shall provide for the details about the appointment and dismissal of prosecutors, as well as about their rights and duties, and about the structure and organisation of the prosecution service.
Laws relating to the operation of the prosecution service
The 2001 Public Prosecution Service Act regulates the status and competencies of the prosecution service, the status and powers of the General Prosecutor, as well as the powers of other prosecutors, and the organisation and management of the prosecution service.
The Prosecutors and Trainee Prosecutors Act regulates the status of the prosecutors, their rights and duties, the commencement and termination of their professional service, entitlements arising, responsibilities, disciplinary proceedings, as well as the prosecutors’ self-governance.
Act no. 458/2003 Coll. on the Establishment of the Special Court and Special Prosecutor’s Office includes some specific provisions about the status and powers of prosecutors, about the organisation and management of the prosecution service, and about the rights and duties of the prosecutors.
Several separate acts regulate the prosecutions service’s powers in criminal, civil, and administrative proceedings as well as in the proceedings before the Constitutional Court. In the Public Prosecution Service Act, there is detailed regulation only on the powers of the prosecution service within the scope of the execution of the supervision over law observance by public administration bodies. As far as the powers of the public prosecution are concerned within penal proceedings and other proceedings, there are only framework regulations in this Act. More detailed regulation is provided in the 1961 Criminal Judicial Proceedings Act (Code of Criminal Procedure, hereafter CCP), as well as in other Acts such as the Proceedings for the Constitutional Court Act and the Service of a Term of Imprisonment Act.
Organisation and powers of the prosecution service
The General Prosecutor is appointed by the President upon a proposal of the Parliament. His term of office is seven years.
The Special Prosecutor is elected by Parliament upon a proposal of the General Prosecutor on the basis of competitive proceedings. His term of office is five years.
The General Prosecutor appoints the other subordinated prosecutors for an unlimited period of time.
Prosecutors are not awarded any dignities, they only differ in the offices for which they work or the positions they have taken, and that also have a certain impact on their financial remuneration.
The district prosecution office, headed by the district prosecutor, is the lowest tier of the prosecution service (there are 45 of such offices). The district prosecutor has two deputies. His subordinates are designated as prosecutors of the district prosecution office.
The regional prosecution office is headed by the regional prosecutor and two deputies. The offices are divided into departments headed by the respective heads of departments. The regional prosecutor’s subordinates are designate as prosecutors of the regional prosecution office.
The General Prosecutor is the head of the General Prosecutor’s Office, as well as of whole the prosecution service, and he has three deputies. The General Prosecutor’s Office is divided into sections, departments and units, headed by directors general, heads of departments, and chiefs of units respectively. The other prosecutors are denoted prosecutors of the General Prosecutor’s Office.
The military part of the prosecution service
One of the Deputies of the General Prosecutor is also Chief Military Prosecutor. There is a military division within the General Prosecution Office, divided into departments and units. The Higher Military Prosecution Office headed by the Higher Military Prosecutor is subordinated to that military division. The Higher Military Prosecution Office has the same position as the regional prosecution offices. It is divided into units. The three circuit military prosecution offices are subordinated to the Higher Military Prosecution Office; they have the same position as the district prosecution offices. They are headed by the circuit military prosecutor.
The prosecutors assigned to the military prosecution offices are professional soldiers. They are subordinated to the General Prosecutor. Their powers apply to individuals and acts falling under the jurisdiction of the military courts.
When they have committed a crime of a military nature whilst wearing a uniform, the soldiers of the armed forces fall under the jurisdiction of the military courts, also when they were not on active duty at the time.
Civilians fall under the jurisdiction of the military courts as well, if they have committed the following crimes: war treason, serving in a foreign army and failure to comply with the conscription order.
The Special Prosecution Office
The Special Prosecution Office forms part of the General Prosecutor’s Office. The office is headed by the special prosecutor, through whom the General Prosecutor directs its operation. In the performance of his functions, the special prosecutor is accountable to the General Prosecutor. However, for matters falling under the competence of the special office, the General Prosecutor is not entitled to render any negative instruction either to the special prosecutor or to the prosecutor of the special office (for example the instruction not to commence a criminal prosecution, not to accuse, not to file a motion for taking an accused into custody, to instruct to forward the case to another body, to discontinue a criminal prosecution, not to bring a charge, not to file either a regular or an extraordinary remedial measure to the detriment of the accused), not to execute any acts on behalf of the special prosecutor or of the prosecutor of the special office, or to decide that another subordinated prosecutor shall execute such an act.
The prosecutors of this special office are appointed by the special prosecutor on the basis of a competitive selection process, and with prior consent of the Prosecutors’ Council. The General Prosecutor can only remove a person designated to fulfil the tasks of the special prosecution office from office, upon a proposal of the special prosecutor.
Certain officials, when they are suspected of having committed an offence in connection with their powers and responsibilities, fall under the jurisdiction of the special prosecutor and his subordinates and the Special Court, amongst them:
- Members of Parliament;
- Ministers;
- Deputy ministers;
- Presidents of the central state administration bodies;
- President and vice-president of the Supreme Control Office;
- judges of the Constitutional Court;
- Judges;
- prosecutors;
- public guardian of rights (ombudsman), and other high officials.
The Special Court has jurisdiction over other persons as well, for example:
- serious offences of corruption;
- creating, plotting and supporting a criminal and terrorist group;
- extremely serious crimes committed in association with an organised group operating in several countries; or with a criminal group or terrorist group;
- economic crimes, or crimes against property, if the damage caused, or the enrichment gained, reached at least ten multiples of the minimum monthly salary of an employee, or if such crime was committed whilst reaching at least ten thousands multiples of the minimum monthly salary of an employee (around 1.700.000 EURO);
- offences detrimental to the financial interest of the European Community; and
- offences connected with the offences mentioned, if the conditions of the joint proceedings are met.
The scope of the General Prosecutor’s powers
The General Prosecutor governs and controls the activities of all the prosecution offices including the military ones. With a view to ensure a proper performance of tasks, he issues internal regulations, orders and instructions binding on all prosecutors, trainee prosecutors, as well as any other employees. In the interest of a uniform application and enforcement of laws and other generally binding regulations, the General Prosecutor presents decisions and recommendations binding on all prosecutors. He also issues legal and organisational acts that are published in the Collection of Laws of the Slovak Republic.
The General Prosecutor has some important powers vis-a-vis others government bodies, the Parliament, the Government, the Constitutional Court, the Supreme Court and, other courts.
Once a year, the General Prosecutor submits an activity report to the Parliament about the compliance with laws. He puts forward proposals and motions for passing legislation, as well as modifications and amendments thereto. He can also file a proposal to the Parliament for election of candidates to judges of the Constitutional Court.
The General Prosecutor has the right to attend sessions of the Government, cast an advisory vote as well as to put forward proposals for passing legislation.
The General Prosecutor is entitled to file to the Constitutional Court:
- a motion to commence the proceeding that involves the compliance with laws;
- a motion to commence the proceeding that involves the interpretation of constitutional laws if a matter is disputable;
- a complaint against the unconstitutionality or unlawfulness of the parliamentary or municipal elections, or against the result of those elections;
- a complaint against an unconstitutionality or unlawfulness of the election or removing the President from office;
- a complaint against a result of a referendum or people’s vote on removing the President from office; and
- a motion to review the decision on dissolving a political party or political movement.
Before the Constitutional Court takes a decision concerning compliance with laws, the General Prosecutor is obliged to submit a statement about the matter in question, if the President of the Constitutional Court required him to do so.
Before the decision is taken by the Constitutional Court in matters concerning the review of decisions on dissolving or suspending activities of a political party or political movement, the General Prosecutor is obliged – upon a request by the President of Constitutional Court or by the Presiding judge of bench of judges – to provide the Constitutional Court with his opinion on the matter in question.
The General Prosecutor is entitled to file motions to the Supreme Court in order to ensure the uniform interpretation of law.
Under separate laws and under the terms and conditions therein stipulated thereto, the General Prosecutor is entitled to put forward to the Supreme Court:
- a proposal for an extension of custody;
- a complaint against a breach of laws, concerning a final decision made by law enforcement agencies in criminal proceedings;
- an extraordinary remedy against a final decision made by a court of law in a civil matter;
- a proposal to recognise and acknowledge the final decision made by a foreign authority in marital matters, paternity and adoption; and
- a proposal to dissolve a political party or a political movement.
The General Prosecutor is entitled to attend the sessions of the Supreme Court.
The General Prosecutor also appoints and recalls one member and alternate member of the commission that decides about a protection of a menaced witness, a protected witness and persons who are close to such witnesses, and he executes further entitlements and duties under separate laws and international treaties promulgated in the manner prescribed by the law.
Formulation of prosecution policy – orders and instructions
Neither the General Prosecutor, nor any other body does set out a strategy on criminal prosecution policy other than what is defined in general under the Penal Code, the CCP, and other laws or international treaties. The adjudicating and prosecuting bodies proceed ex officio, as they are bound by the obligation to prosecute all offences irrespective of their seriousness and perpetrators, save the exceptions strictly defined by the law. It is not possible to set out any priorities but those defined by the law, under which the priority and acceleration should be given to the cases which the accused is in custody for. There is no possibility to determine what matter to prosecute or not to prosecute, or to what matter priority should be given. The General Prosecutor is entitled to deliver regulations and instructions of a general nature, and mostly of an organisational character. The General Prosecutor as well as superior prosecutors are empowered to issue instructions and positions which may be directed to the proceedings and decisions concerning a particular criminal matter. Those instructions can be of both a positive and a negative nature.
The superior prosecutor is entitled:
- to issue an instruction to the subordinated prosecutor how to proceed in a proceeding and in fulfilling the tasks,
- to execute the acts himself or to decide that another prosecutor shall execute them.
The instruction for a subordinated prosecutor must be in writing. The subordinated prosecutor is obliged to comply with it, unless provided otherwise hereinafter.
The subordinated prosecutor is not bound by the instruction from his superior prosecutor, if the evidence situation has altered in the course of proceedings.
The subordinated prosecutor is obliged to refuse complying with the instruction, if by doing so he would commit an offence, infraction, administrative or disciplinary mistake. He is obliged to provide a written justification of the refusal to comply with the instruction.
The subordinated prosecutor can refuse to comply with an instruction if such a fulfilment could cause an immediate and serious threat to his life or health, or if he could cause an immediate threat to life or health to a person close by.
If a subordinated prosecutor presumes that following an instruction would have occurrence of damage as a consequence, he is obliged to notify the superior prosecutor.
If a subordinated prosecutor considers the instruction contrary to legal regulations or to his own legal opinion, he can file a written request for with-drawal of the case to the superior prosecutor. The request must be justified. The superior prosecutor shall comply with his request and he shall allocate the matter to another prosecutor for handling, or he shall handle it himself.
The powers of the prosecution service
Apart from the powers entrusted exclusively to the General Prosecutor by law, the prosecutors exercise the following powers:
- the pursuit of criminal proceedings conducted against offenders and overseeing compliance with laws in the pre-trial proceedings;
- overseeing compliance with laws in all establishments where individuals deprived of their personal freedom or individuals whose personal freedom was limited upon a decision made by a court of law or by any other competent authority are kept;
- exercising their powers in court proceedings;
- representing the State before the courts of law if so prescribed by a separate law;
- overseeing compliance with laws on the part of public administrative agencies within the limits of the Public Prosecution Service Act;
- participation in preparing and taking preventive measures which aim to prevent a breach of law and other generally binding regulations;
- participation in eliminating, preventing and combating the causes and conditions of crime;
- participation in drafting legislation; and
- performing other duties and obligations if so prescribed by a special law or by an international treaty.
Termination of an investigation otherwise than by bringing a charge
The prosecutor is a dominus litis in the stage the criminal proceedings before submission of a charge to the court of law. In addition to the prosecutor, the investigator and the police officer are also empowered to issue a decision to commence a criminal prosecution, or to decide that there are no legal grounds to issue such a decision. However, the prosecutor is entitled to cancel their decision, if it was not delivered in accordance with the law. It is only the prosecutor who is entitled to bring a criminal charge to a court of law. Neither any other government body, nor any individual has the right to prosecute. Prosecution is a monopoly of the prosecution service.
If legal conditions have been fulfilled, prosecution could be terminated by not bringing a charge to the court of law.
The investigator, and within a summary investigation the prosecutor, shall transfer a matter to another authority, if the results of the preliminary proceedings show that no crime was committed, but the act in question could be handled by some other authority as infraction, as administrative offence or as disciplinary offence.
The investigator, and within a summary investigation the prosecutor, shall discontinue prosecution if:
- there is no doubt that the act for which the criminal prosecution is conducted, did not happen;
- the act is not a criminal act, and there are no grounds to transfer the case;
- there is no evidence that the accused committed the offence;
- criminal prosecution is inadmissible (sect. 11 CCP);
- the accused was not criminally liable while committing the act due to mental disorder; and
- the criminal liability for an act has extinguished.
Under sect. 11 CCP, criminal prosecution cannot be initiated or must be discontinued, if:
- criminal prosecution is subject to limitation;
- the offender has been exempt from the jurisdiction of law enforcement bodies, or the law requires a consent for prosecution, and no consent has been given by the competent authority;
- the offender is a minor, not criminally liable due to his minor age;
- the offender died;
- the offender has already in a final judgment be sentenced for the same criminal act, or the prosecution has been discontinued upon final judgment, and this judgment has not been revoked;
- a previous prosecution for the same offence has already been terminated with the issuing of a final judgment by another competent prosecuting authority, and this judgment has not been revoked;
- prosecution can only take place with the consent of the injured person, and no consent has been given, or it has been withdrawn; or
- when it has been stipulated so in international treaty binding the Republic.
However, criminal prosecution which has been discontinued due to time limitation shall continue if the accused declares, within three days from receiving the resolution not to proceed, that he insists on the matter to be heard. The accused has to be duly advised of this right.
Criminal prosecution that has been discontinued due to jurisdiction exemption shall be continued after the termination of mandate of a member of the Parliament, and after a termination of a term of office of a judge of the Constitutional Court, of the judge, and of the General Prosecutor.
The investigator, and the prosecutor within a summary investigation, can discontinue criminal prosecution if the following conditions have been met:
- the punishment expected as a result of such a prosecution is of no importance in comparison to the punishment that has been already imposed or is expected to be imposed;
- the act of the accused has been already decided on by another body, by a foreign court or authority, and that judgment is considered to be sufficient.
Only the prosecutor is empowered to discontinue criminal prosecution of a person against whom an accusation has been temporarily suspended, or of a person who has participated in relevant manner in a case of corruption, or of an offence of establishing, plotting and supporting a criminal group and terrorist group, or an extremely serious wilful criminal offence, mentioned in sect. 41 PC, and committed by an organised group, criminal group or terrorist group, or who has participated in detection of and testimony against a perpetrator of such a crime, where the interest of a society to clarify that crime prevails over an interest to prosecute that person. Prosecution shall not be discontinued of a principal offender, organiser of the commission of crime, or an instigator of a crime in the clarification of which he has participated.
The investigator or the police shall suspend criminal prosecution in the following cases:
- it is impossible for the case to be duly clarified due to the absence of the offender or the injured person;
- it is impossible to bring the offender before the court because of his serious illness;
- the offender is unable to understand the purpose of criminal prosecution due to his mental disease which occurred after commission of the act;
- the offender has been extradited to a foreign country or expulsed;
- the effect of a legal regulation, or any provisions that are relevant for the proceedings, has been discontinued by the Constitutional Court; and
- the facts do not justify prosecution of a particular person.
The investigator can suspend criminal prosecution upon prior consent of the prosecutor when the offender has participated extensively in clearing a case of corruption, or of establishing, plotting and supporting a criminal and terrorist group, or of an extremely serious wilful criminal act committed by an organised group, criminal group or terrorist group, or after a testimony against a perpetrator of such a crime. Prosecution against the principal offender, organiser or instigator of a crime, who participates in its clearing, cannot be suspended. All necessary steps must be taken in order to successfully perform a criminal prosecution before suspending it. If grounds for suspension have ceased to exist, the criminal prosecution shall continue.
Within preliminary proceedings, the court or the prosecutor can decide to approve a pre-trial settlement and to discontinue criminal prosecution, if the offender:
- declares having committed the offence and there are not reasonable doubts that his declaration has been freely, understandably and firmly made;
- has compensated the damage, or has taken other measures to compensate the damage or has otherwise removed the consequences of the offence; and
- has paid an amount of money to the court’s, or prosecution service’s, treasury in the preliminary proceedings, for a specific addressee for the purposes of common benefit; the amount of money shall not obviously be inappropriate to the seriousness of the offence committed.
The court, or the prosecutor within preliminary proceedings, shall consider that kind of decision as sufficient with respect to the nature and seriousness of the offence, as well as to the degree of the consequence made to the public interest with the offence, and also having regard to the personality of the accused, his personal circumstances, and property owned by him.
A pre-trial settlement cannot be approved when the offence has caused the death of a person.
After termination of the investigation in proceedings concerning an offence punished with a deprivation of liberty not exceeding five years, the court, with the consent of the accused, or the prosecutor in the preliminary pro-ceeding, can conditionally discontinue criminal prosecution if the following conditions have been met:
- the accused has confessed the crime, and
- he has compensated the damage or has agreed on compensation with the injured party, or has taken other measures to compensate;
- there are grounds to consider such a decision as sufficient with regard to the personality of the offender, as well as to his previous way of life, and to the circumstances of the case.
The probationary period from six months up to two years shall be determined in the resolution on the conditional discontinuance of the criminal prosecution.
In the resolution an obligation to compensate the damage shall be imposed on the offender who entered an agreement on compensation. An obligation to observe appropriate orders to conduct a proper life can be imposed as well.
A conditional discontinuation of a prosecution is not allowed when the offence caused the death of a person.
If the accused has conducted a proper life, has observed the obligation to compensate the damage, and has also complied with further conditions imposed, the authority which has conditionally discontinued the criminal prosecution in the first instance shall decide that the accused made good. Otherwise it shall decide, possibly even in the course of the probationary period, to continue the prosecution. If a resolution about making good has not been made until one year from the expiration of the probationary period without fault of the accused, it appears that he made good. The final resolution on having made good, or expiration of the period for issuing such a resolution, have the effect of the discontinuation of the criminal prosecution (ne bis in idem).
Except under the conditions mentioned above, the prosecution service is obliged to prosecute all criminal offences of which it gained knowledge. All exceptions for a (conditional) non-prosecution, a discontinuation, or a suspension of prosecution have been strictly defined by the law.
Prosecution of some offences is exclusively possible with the consent of the injured person. These offences are: false accusation, defamation, failure to provide help, harm done to rights of another, negligent bodily harm, endangering with venereal disease, theft, embezzlement, unauthorised use of another’s belongings, unauthorized use of another’s car, fraud, hiding and handling stolen goods, usury, concealment, breach of trust, harm done to a creditor, preferring creditor, harm done to a thing of another, harm done to or misuse of the record on the information carrier against a person who is close to the injured and against who the injured-witness could have the right to refuse the testimony, public drunkenness. This provision does not apply, if the death of the injured person has been caused.
Relationship between the Public Prosecutor and the Minister of Justice
The position of the prosecution service within the government system
The prosecution service is an independent, hierarchical and uniform organisation headed by the Prosecutor General in which the prosecutors act in terms of subordination and superiority (sect. 2, Public Prosecution Service Act). The prosecution service is in no way subordinated to the Government, to the Minister of Justice or to any other executive or judicial body. The prosecution service is only accountable to the National Council (Parliament) through the Prosecutor General.
There is no uniform opinion on whether the prosecution service forms part of the executive or judicial power, or on whether it is a body sui generis on the edge of those two powers, or possibly, on whether there is a need to consider a fourth power. This fourth power would be the controlling power which could consist of the prosecution service, possibly together with the Supreme Control Office and the ombudsman. The Constitution does not place the prosecution service within the executive or judicial power, but contains a separate Title VIII dedicated to it. The last Constitution of the unified Czecho-Slovak Republic (in force from 1960 until 1992) contained a Title VIII: ‘The Courts and the Prosecution Service’. However, even during the period that it was in force, the opinion prevailed that the prosecution service did not form part of the judicial power but it was a body sui generis, between the executive and judicial powers. That was also the opinion of the authors of the Commentary on the Constitution. That is to say, some of the prosecution service’s competencies have got the attribute typical for the executive power such as representation before the court, or representation of the State in certain fiscal litigations. At the same time, some of the prosecution service’s competencies are more specific for the judicial power such as deciding penal cases other than by bringing a criminal action, for example approving an extra-judicial settlement. Nevertheless, some typical elements are missing when comparing the prosecution service with the executive power, like the right to issue generally binding regulations, to control their observance as well to sanction those failing to observe them.
Apart from the unclear position of the prosecution service within the system of division of powers, it is obvious from the wording of the Constitution that the prosecution service is not subordinated to the Government as the paramount body of executive power. This also applies in relation to the President of the Republic who represents a government body explicitly integrated into the executive power according to the Constitution. According to the Constitutional Courts’ opinion, the Constitution has expressed the internal division of powers also within the executive system when dividing the powers and competencies between the Government and the President. That is why the prosecution service is considered a body vested with specific powers and competencies, and separated from both Government and state administration, even if it was a body belonging to the executive power.
The legal status of the prosecution service is directly based on the Constitution that contains a separate Title on: The Prosecution Service and the public guardian of rights. Its first part includes three articles stipulating that the prosecution service protects the rights and interests of natural persons and legal entities and the State protected by law. It also stipulates that the prosecution service is headed by the General Prosecutor appointed and recalled by the President upon a proposal of the Parliament, and that a law shall provide for the details about the appointment and dismissal of prosecutors, as well as about their rights and duties, and about the structure and organisation of the prosecution service.
Laws relating to the operation of the prosecution service
The 2001 Public Prosecution Service Act regulates the status and competencies of the prosecution service, the status and powers of the General Prosecutor, as well as the powers of other prosecutors, and the organisation and management of the prosecution service.
The Prosecutors and Trainee Prosecutors Act regulates the status of the prosecutors, their rights and duties, the commencement and termination of their professional service, entitlements arising, responsibilities, disciplinary proceedings, as well as the prosecutors’ self-governance.
Act no. 458/2003 Coll. on the Establishment of the Special Court and Special Prosecutor’s Office includes some specific provisions about the status and powers of prosecutors, about the organisation and management of the prosecution service, and about the rights and duties of the prosecutors.
Several separate acts regulate the prosecutions service’s powers in criminal, civil, and administrative proceedings as well as in the proceedings before the Constitutional Court. In the Public Prosecution Service Act, there is detailed regulation only on the powers of the prosecution service within the scope of the execution of the supervision over law observance by public administration bodies. As far as the powers of the public prosecution are concerned within penal proceedings and other proceedings, there are only framework regulations in this Act. More detailed regulation is provided in the 1961 Criminal Judicial Proceedings Act (Code of Criminal Procedure, hereafter CCP), as well as in other Acts such as the Proceedings for the Constitutional Court Act and the Service of a Term of Imprisonment Act.
Organisation and powers of the prosecution service
The General Prosecutor is appointed by the President upon a proposal of the Parliament. His term of office is seven years.
The Special Prosecutor is elected by Parliament upon a proposal of the General Prosecutor on the basis of competitive proceedings. His term of office is five years.
The General Prosecutor appoints the other subordinated prosecutors for an unlimited period of time.
Prosecutors are not awarded any dignities, they only differ in the offices for which they work or the positions they have taken, and that also have a certain impact on their financial remuneration.
The district prosecution office, headed by the district prosecutor, is the lowest tier of the prosecution service (there are 45 of such offices). The district prosecutor has two deputies. His subordinates are designated as prosecutors of the district prosecution office.
The regional prosecution office is headed by the regional prosecutor and two deputies. The offices are divided into departments headed by the respective heads of departments. The regional prosecutor’s subordinates are designate as prosecutors of the regional prosecution office.
The General Prosecutor is the head of the General Prosecutor’s Office, as well as of whole the prosecution service, and he has three deputies. The General Prosecutor’s Office is divided into sections, departments and units, headed by directors general, heads of departments, and chiefs of units respectively. The other prosecutors are denoted prosecutors of the General Prosecutor’s Office.
The military part of the prosecution service
One of the Deputies of the General Prosecutor is also Chief Military Prosecutor. There is a military division within the General Prosecution Office, divided into departments and units. The Higher Military Prosecution Office headed by the Higher Military Prosecutor is subordinated to that military division. The Higher Military Prosecution Office has the same position as the regional prosecution offices. It is divided into units. The three circuit military prosecution offices are subordinated to the Higher Military Prosecution Office; they have the same position as the district prosecution offices. They are headed by the circuit military prosecutor.
The prosecutors assigned to the military prosecution offices are professional soldiers. They are subordinated to the General Prosecutor. Their powers apply to individuals and acts falling under the jurisdiction of the military courts.
When they have committed a crime of a military nature whilst wearing a uniform, the soldiers of the armed forces fall under the jurisdiction of the military courts, also when they were not on active duty at the time.
Civilians fall under the jurisdiction of the military courts as well, if they have committed the following crimes: war treason, serving in a foreign army and failure to comply with the conscription order.
The Special Prosecution Office
The Special Prosecution Office forms part of the General Prosecutor’s Office. The office is headed by the special prosecutor, through whom the General Prosecutor directs its operation. In the performance of his functions, the special prosecutor is accountable to the General Prosecutor. However, for matters falling under the competence of the special office, the General Prosecutor is not entitled to render any negative instruction either to the special prosecutor or to the prosecutor of the special office (for example the instruction not to commence a criminal prosecution, not to accuse, not to file a motion for taking an accused into custody, to instruct to forward the case to another body, to discontinue a criminal prosecution, not to bring a charge, not to file either a regular or an extraordinary remedial measure to the detriment of the accused), not to execute any acts on behalf of the special prosecutor or of the prosecutor of the special office, or to decide that another subordinated prosecutor shall execute such an act.
The prosecutors of this special office are appointed by the special prosecutor on the basis of a competitive selection process, and with prior consent of the Prosecutors’ Council. The General Prosecutor can only remove a person designated to fulfil the tasks of the special prosecution office from office, upon a proposal of the special prosecutor.
Certain officials, when they are suspected of having committed an offence in connection with their powers and responsibilities, fall under the jurisdiction of the special prosecutor and his subordinates and the Special Court, amongst them:
- Members of Parliament;
- Ministers;
- Deputy ministers;
- Presidents of the central state administration bodies;
- President and vice-president of the Supreme Control Office;
- judges of the Constitutional Court;
- Judges;
- prosecutors;
- public guardian of rights (ombudsman), and other high officials.
The Special Court has jurisdiction over other persons as well, for example:
- serious offences of corruption;
- creating, plotting and supporting a criminal and terrorist group;
- extremely serious crimes committed in association with an organised group operating in several countries; or with a criminal group or terrorist group;
- economic crimes, or crimes against property, if the damage caused, or the enrichment gained, reached at least ten multiples of the minimum monthly salary of an employee, or if such crime was committed whilst reaching at least ten thousands multiples of the minimum monthly salary of an employee (around 1.700.000 EURO);
- offences detrimental to the financial interest of the European Community; and
- offences connected with the offences mentioned, if the conditions of the joint proceedings are met.
The scope of the General Prosecutor’s powers
The General Prosecutor governs and controls the activities of all the prosecution offices including the military ones. With a view to ensure a proper performance of tasks, he issues internal regulations, orders and instructions binding on all prosecutors, trainee prosecutors, as well as any other employees. In the interest of a uniform application and enforcement of laws and other generally binding regulations, the General Prosecutor presents decisions and recommendations binding on all prosecutors. He also issues legal and organisational acts that are published in the Collection of Laws of the Slovak Republic.
The General Prosecutor has some important powers vis-a-vis others government bodies, the Parliament, the Government, the Constitutional Court, the Supreme Court and, other courts.
Once a year, the General Prosecutor submits an activity report to the Parliament about the compliance with laws. He puts forward proposals and motions for passing legislation, as well as modifications and amendments thereto. He can also file a proposal to the Parliament for election of candidates to judges of the Constitutional Court.
The General Prosecutor has the right to attend sessions of the Government, cast an advisory vote as well as to put forward proposals for passing legislation.
The General Prosecutor is entitled to file to the Constitutional Court:
- a motion to commence the proceeding that involves the compliance with laws;
- a motion to commence the proceeding that involves the interpretation of constitutional laws if a matter is disputable;
- a complaint against the unconstitutionality or unlawfulness of the parliamentary or municipal elections, or against the result of those elections;
- a complaint against an unconstitutionality or unlawfulness of the election or removing the President from office;
- a complaint against a result of a referendum or people’s vote on removing the President from office; and
- a motion to review the decision on dissolving a political party or political movement.
Before the Constitutional Court takes a decision concerning compliance with laws, the General Prosecutor is obliged to submit a statement about the matter in question, if the President of the Constitutional Court required him to do so.
Before the decision is taken by the Constitutional Court in matters concerning the review of decisions on dissolving or suspending activities of a political party or political movement, the General Prosecutor is obliged – upon a request by the President of Constitutional Court or by the Presiding judge of bench of judges – to provide the Constitutional Court with his opinion on the matter in question.
The General Prosecutor is entitled to file motions to the Supreme Court in order to ensure the uniform interpretation of law.
Under separate laws and under the terms and conditions therein stipulated thereto, the General Prosecutor is entitled to put forward to the Supreme Court:
- a proposal for an extension of custody;
- a complaint against a breach of laws, concerning a final decision made by law enforcement agencies in criminal proceedings;
- an extraordinary remedy against a final decision made by a court of law in a civil matter;
- a proposal to recognise and acknowledge the final decision made by a foreign authority in marital matters, paternity and adoption; and
- a proposal to dissolve a political party or a political movement.
The General Prosecutor is entitled to attend the sessions of the Supreme Court.
The General Prosecutor also appoints and recalls one member and alternate member of the commission that decides about a protection of a menaced witness, a protected witness and persons who are close to such witnesses, and he executes further entitlements and duties under separate laws and international treaties promulgated in the manner prescribed by the law.
Formulation of prosecution policy – orders and instructions
Neither the General Prosecutor, nor any other body does set out a strategy on criminal prosecution policy other than what is defined in general under the Penal Code, the CCP, and other laws or international treaties. The adjudicating and prosecuting bodies proceed ex officio, as they are bound by the obligation to prosecute all offences irrespective of their seriousness and perpetrators, save the exceptions strictly defined by the law. It is not possible to set out any priorities but those defined by the law, under which the priority and acceleration should be given to the cases which the accused is in custody for. There is no possibility to determine what matter to prosecute or not to prosecute, or to what matter priority should be given. The General Prosecutor is entitled to deliver regulations and instructions of a general nature, and mostly of an organisational character. The General Prosecutor as well as superior prosecutors are empowered to issue instructions and positions which may be directed to the proceedings and decisions concerning a particular criminal matter. Those instructions can be of both a positive and a negative nature.
The superior prosecutor is entitled:
- to issue an instruction to the subordinated prosecutor how to proceed in a proceeding and in fulfilling the tasks,
- to execute the acts himself or to decide that another prosecutor shall execute them.
The instruction for a subordinated prosecutor must be in writing. The subordinated prosecutor is obliged to comply with it, unless provided otherwise hereinafter.
The subordinated prosecutor is not bound by the instruction from his superior prosecutor, if the evidence situation has altered in the course of proceedings.
The subordinated prosecutor is obliged to refuse complying with the instruction, if by doing so he would commit an offence, infraction, administrative or disciplinary mistake. He is obliged to provide a written justification of the refusal to comply with the instruction.
The subordinated prosecutor can refuse to comply with an instruction if such a fulfilment could cause an immediate and serious threat to his life or health, or if he could cause an immediate threat to life or health to a person close by.
If a subordinated prosecutor presumes that following an instruction would have occurrence of damage as a consequence, he is obliged to notify the superior prosecutor.
If a subordinated prosecutor considers the instruction contrary to legal regulations or to his own legal opinion, he can file a written request for with-drawal of the case to the superior prosecutor. The request must be justified. The superior prosecutor shall comply with his request and he shall allocate the matter to another prosecutor for handling, or he shall handle it himself.
The powers of the prosecution service
Apart from the powers entrusted exclusively to the General Prosecutor by law, the prosecutors exercise the following powers:
- the pursuit of criminal proceedings conducted against offenders and overseeing compliance with laws in the pre-trial proceedings;
- overseeing compliance with laws in all establishments where individuals deprived of their personal freedom or individuals whose personal freedom was limited upon a decision made by a court of law or by any other competent authority are kept;
- exercising their powers in court proceedings;
- representing the State before the courts of law if so prescribed by a separate law;
- overseeing compliance with laws on the part of public administrative agencies within the limits of the Public Prosecution Service Act;
- participation in preparing and taking preventive measures which aim to prevent a breach of law and other generally binding regulations;
- participation in eliminating, preventing and combating the causes and conditions of crime;
- participation in drafting legislation; and
- performing other duties and obligations if so prescribed by a special law or by an international treaty.
Termination of an investigation otherwise than by bringing a charge
The prosecutor is a dominus litis in the stage the criminal proceedings before submission of a charge to the court of law. In addition to the prosecutor, the investigator and the police officer are also empowered to issue a decision to commence a criminal prosecution, or to decide that there are no legal grounds to issue such a decision. However, the prosecutor is entitled to cancel their decision, if it was not delivered in accordance with the law. It is only the prosecutor who is entitled to bring a criminal charge to a court of law. Neither any other government body, nor any individual has the right to prosecute. Prosecution is a monopoly of the prosecution service.
If legal conditions have been fulfilled, prosecution could be terminated by not bringing a charge to the court of law.
The investigator, and within a summary investigation the prosecutor, shall transfer a matter to another authority, if the results of the preliminary proceedings show that no crime was committed, but the act in question could be handled by some other authority as infraction, as administrative offence or as disciplinary offence.
The investigator, and within a summary investigation the prosecutor, shall discontinue prosecution if:
- there is no doubt that the act for which the criminal prosecution is conducted, did not happen;
- the act is not a criminal act, and there are no grounds to transfer the case;
- there is no evidence that the accused committed the offence;
- criminal prosecution is inadmissible (sect. 11 CCP);
- the accused was not criminally liable while committing the act due to mental disorder; and
- the criminal liability for an act has extinguished.
Under sect. 11 CCP, criminal prosecution cannot be initiated or must be discontinued, if:
- criminal prosecution is subject to limitation;
- the offender has been exempt from the jurisdiction of law enforcement bodies, or the law requires a consent for prosecution, and no consent has been given by the competent authority;
- the offender is a minor, not criminally liable due to his minor age;
- the offender died;
- the offender has already in a final judgment be sentenced for the same criminal act, or the prosecution has been discontinued upon final judgment, and this judgment has not been revoked;
- a previous prosecution for the same offence has already been terminated with the issuing of a final judgment by another competent prosecuting authority, and this judgment has not been revoked;
- prosecution can only take place with the consent of the injured person, and no consent has been given, or it has been withdrawn; or
- when it has been stipulated so in international treaty binding the Republic.
However, criminal prosecution which has been discontinued due to time limitation shall continue if the accused declares, within three days from receiving the resolution not to proceed, that he insists on the matter to be heard. The accused has to be duly advised of this right.
Criminal prosecution that has been discontinued due to jurisdiction exemption shall be continued after the termination of mandate of a member of the Parliament, and after a termination of a term of office of a judge of the Constitutional Court, of the judge, and of the General Prosecutor.
The investigator, and the prosecutor within a summary investigation, can discontinue criminal prosecution if the following conditions have been met:
- the punishment expected as a result of such a prosecution is of no importance in comparison to the punishment that has been already imposed or is expected to be imposed;
- the act of the accused has been already decided on by another body, by a foreign court or authority, and that judgment is considered to be sufficient.
Only the prosecutor is empowered to discontinue criminal prosecution of a person against whom an accusation has been temporarily suspended, or of a person who has participated in relevant manner in a case of corruption, or of an offence of establishing, plotting and supporting a criminal group and terrorist group, or an extremely serious wilful criminal offence, mentioned in sect. 41 PC, and committed by an organised group, criminal group or terrorist group, or who has participated in detection of and testimony against a perpetrator of such a crime, where the interest of a society to clarify that crime prevails over an interest to prosecute that person. Prosecution shall not be discontinued of a principal offender, organiser of the commission of crime, or an instigator of a crime in the clarification of which he has participated.
The investigator or the police shall suspend criminal prosecution in the following cases:
- it is impossible for the case to be duly clarified due to the absence of the offender or the injured person;
- it is impossible to bring the offender before the court because of his serious illness;
- the offender is unable to understand the purpose of criminal prosecution due to his mental disease which occurred after commission of the act;
- the offender has been extradited to a foreign country or expulsed;
- the effect of a legal regulation, or any provisions that are relevant for the proceedings, has been discontinued by the Constitutional Court; and
- the facts do not justify prosecution of a particular person.
The investigator can suspend criminal prosecution upon prior consent of the prosecutor when the offender has participated extensively in clearing a case of corruption, or of establishing, plotting and supporting a criminal and terrorist group, or of an extremely serious wilful criminal act committed by an organised group, criminal group or terrorist group, or after a testimony against a perpetrator of such a crime. Prosecution against the principal offender, organiser or instigator of a crime, who participates in its clearing, cannot be suspended. All necessary steps must be taken in order to successfully perform a criminal prosecution before suspending it. If grounds for suspension have ceased to exist, the criminal prosecution shall continue.
Within preliminary proceedings, the court or the prosecutor can decide to approve a pre-trial settlement and to discontinue criminal prosecution, if the offender:
- declares having committed the offence and there are not reasonable doubts that his declaration has been freely, understandably and firmly made;
- has compensated the damage, or has taken other measures to compensate the damage or has otherwise removed the consequences of the offence; and
- has paid an amount of money to the court’s, or prosecution service’s, treasury in the preliminary proceedings, for a specific addressee for the purposes of common benefit; the amount of money shall not obviously be inappropriate to the seriousness of the offence committed.
The court, or the prosecutor within preliminary proceedings, shall consider that kind of decision as sufficient with respect to the nature and seriousness of the offence, as well as to the degree of the consequence made to the public interest with the offence, and also having regard to the personality of the accused, his personal circumstances, and property owned by him.
A pre-trial settlement cannot be approved when the offence has caused the death of a person.
After termination of the investigation in proceedings concerning an offence punished with a deprivation of liberty not exceeding five years, the court, with the consent of the accused, or the prosecutor in the preliminary pro-ceeding, can conditionally discontinue criminal prosecution if the following conditions have been met:
- the accused has confessed the crime, and
- he has compensated the damage or has agreed on compensation with the injured party, or has taken other measures to compensate;
- there are grounds to consider such a decision as sufficient with regard to the personality of the offender, as well as to his previous way of life, and to the circumstances of the case.
The probationary period from six months up to two years shall be determined in the resolution on the conditional discontinuance of the criminal prosecution.
In the resolution an obligation to compensate the damage shall be imposed on the offender who entered an agreement on compensation. An obligation to observe appropriate orders to conduct a proper life can be imposed as well.
A conditional discontinuation of a prosecution is not allowed when the offence caused the death of a person.
If the accused has conducted a proper life, has observed the obligation to compensate the damage, and has also complied with further conditions imposed, the authority which has conditionally discontinued the criminal prosecution in the first instance shall decide that the accused made good. Otherwise it shall decide, possibly even in the course of the probationary period, to continue the prosecution. If a resolution about making good has not been made until one year from the expiration of the probationary period without fault of the accused, it appears that he made good. The final resolution on having made good, or expiration of the period for issuing such a resolution, have the effect of the discontinuation of the criminal prosecution (ne bis in idem).
Except under the conditions mentioned above, the prosecution service is obliged to prosecute all criminal offences of which it gained knowledge. All exceptions for a (conditional) non-prosecution, a discontinuation, or a suspension of prosecution have been strictly defined by the law.
Prosecution of some offences is exclusively possible with the consent of the injured person. These offences are: false accusation, defamation, failure to provide help, harm done to rights of another, negligent bodily harm, endangering with venereal disease, theft, embezzlement, unauthorised use of another’s belongings, unauthorized use of another’s car, fraud, hiding and handling stolen goods, usury, concealment, breach of trust, harm done to a creditor, preferring creditor, harm done to a thing of another, harm done to or misuse of the record on the information carrier against a person who is close to the injured and against who the injured-witness could have the right to refuse the testimony, public drunkenness. This provision does not apply, if the death of the injured person has been caused.
