Create Draft Legislation to Extend the Right to Recommend Candidates for the Post of Attorney-General. (SK0116)

According to the current law42, proposals for the appointment of the Attorney-General are submitted by the Members of the National Council of the Slovak Republic ("the National Council") to the Speaker of the National Council, who assigns them to the Constitutional Committee of the National Council. The Constitu-tional Committee passes the proposal along with its opinion to the Speaker of the National Council who then schedules the proposal along with the opinion of the Constitutional Committee for the next meeting of the National Council. Members of the National Council vote for the candidate who is then proposed to the president for appointment. This method is not satisfactory because in the end result the nominee is chosen only by political parties and the nominee's selection process is subject to the political struggle.
Therefore, the right to propose candidates based on their professional qualities should be also granted to the representatives of legal professionals (such as the representatives of the professional chambers, the academic community, including prosecutors, and the public defender of rights). This requirement is also apparent from the report of the Venice Commission on European Standards relating to the Independence of the Judicial System, Part II - Prosecution43. In the opinion of the Attorney-General's Office, it is necessary to pay close attention to the circle of persons and entities who should have the right to recommend the candidates for the Attorney-General to the National Council. At the same time, the relevant parliamentary committee should keep the competence to decide which nominees will be submitted to the National Coun-cil for voting, but under strict conditions, so that unfair exclusion cannot occur.
Commitment No. 59: Create draft legislation to extend the right to recommend candidates for the post of Attorney-General.

THEME - Improve prosecutors  

Comm 58, 59, 60, 61

Language of the commitment as it appears in the action plan^{[Note : The Office of the Plenipotentiary, “Open Government Partnership National Action Plan of the Slovak Republic 2017 – 2019”, http://bit.ly/2QYIlHV ]}:

Commitment 58: “Prepare and submit to the Government a draft of the Act amending Act No. 154/2001 Coll. on prosecutors and Lawyers of the Public Prosecutor's, that will ensure the publication of the seat of office of individual prosecutors”.

Commitment 59: “Create draft legislation to extend the right to recommend candidates for the post of Attorney-General”.

Commitment 60: “In a participatory manner, conduct an analysis of disciplinary proceedings in prosecutors' affairs and create draft legislative changes in order to increase the transparency of these disciplinary proceedings.”

Commitment 61: “In a participatory manner, analyze the selection procedures for the prosecutor's office, including draft legislative changes, in order to increase their transparency.”

Start Date: Not specified                

End Date: 31 July 2018

Context and Objectives

According to the reports from the European Anti-Fraud Office (OLAF) the indictment rate was 18% in Slovakia 2017^{[Note : European Anti-Fraud Office, “The OLAF report 2017,” http://bit.ly/2Kw2EKQ ]}. The EU average indictment rate was 42% in 2017. The Transparency International Slovakia informed that although there have been some improvements in punishing corruption, and for instance, the number of solved cases of bribery above a thousand euro has increased, the number of cases of grand corruption linked to high-level public officials has been continuously very low and enjoyed impunity^{[Note : Transparency International Slovakia, „Napriek zlepšeniu „veľké ryby“ stále nechytáme“ (Despite improvements we still do not catch ‘big fish’) http://bit.ly/2Tcb7d0 (in Slovak)]}. Prosecutors, along with the police, play a crucial role in investigating and prosecuting cases of corruption, as they file indictments to courts. The Office of Special Prosecutor, which is responsible for ‘corruption agenda’, has accused the lowest number of people since 2009. As Transparency International concludes it might signalize that prosecutors overlook corruption cases^{[Note : Transparency International Slovakia, http://bit.ly/2BPtH0E (in Slovak)]}. 

The latest report by the Group of States Against Corruption (GRECO) and Council of Europe (CoE)^{[Note : Group of states against corruption and Council of Europe, “Second compliance report Slovak republic: Corruption prevention in respect of members of parliament, judges and prosecutors”, http://bit.ly/2BwFTDy]} concluded that as regards prosecutors, “several developments are to be welcomed”. In particular, they praised the adoption of the Code of Ethics, an introduction of the obligation to declare gifts and liabilities above a certain threshold. GRECO and CoE also welcomed the amendment of the Act on prosecutors and prosecutors’ candidates^{[Note : SLOV-LEX (Legal and information portal), The Ministry of Justice, “The Act on prosecutors and prosecutor candidates no. 154/2001 Coll.”, http://bit.ly/2b7Pc1P (in Slovak).]}, which included an obligation to disclose publicly and regularly update a list of all prosecutors’ names on the website of the Prosecutor General’s Office. Since then the Prosecutor General’s Office has updated this list regularly with the latest update being made on 19 November 2018^{[Note : The list of prosecutors published on the website of the Prosecutor General’s Office, http://bit.ly/2aYKyk2 (in Slovak).]}. The experts interviewed for the previous IRM report agreed that this was an important first step towards greater transparency and an achievement that would not be possible without OGP action plan in place^{[Note : Mária Žuffová, Open Government Partnership, “Slovakia Special Accountability Report 2014 - 2015”,  http://bit.ly/2EzH4Ws]}. The public availability of prosecutors’ names also addressed the problem with access to affidavits and asset declarations. In addition to that, the Prosecutor General’s Office made available a tool for searching asset declarations by name on its website^{[Note : The tool for searching prosecutors’ asset declarations is available on the website of the Prosecutor General’s Office, http://bit.ly/2TJpO4s (in Slovak). ]}.

New commitments aimed at greater transparency, such as Commitment 58 to disclose the seat of prosecutors is useful and specific enough to be verified. Currently, the appointment of the Attorney General is political, as MPs propose the nominees. Commitment 59 to extend the right to propose nominees for the post of the Attorney General to legal professionals is a positive measure, which makes the appointment of the Attorney General less political. However, this commitment is not relevant to any of the OGP values of access to information, civic participation or public accountability.

The interviewed experts stated in the previous IRM report that the executive powers of the Attorney General should be reduced, and both selection and disciplinary procedures should be made more transparent^{[Note : Mária Žuffová, Open Government Partnership, “Slovakia Special Accountability Report 2014 - 2015”, http://bit.ly/2EzH4Ws}

]. Commitments 60 and 61 to analyze selection and disciplinary procedures for prosecutors could potentially address these issues and help to trigger changes.  However, commitments do not specify how the analysis could be used and what the consequences of it would be, therefore the potential impact of these commitments is minor.  

Next steps

The IRM researcher recommends that the Prosecutor General’s Office makes the analyses on selection and disciplinary procedures publicly available and clarify how it will further use the findings.