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Officials' negligence might lead to jail time

JUDGES could soon be allowed to put public officials in prison for wasting public funds because of negligence, and use information acquired via wiretapping in one case as evidence in another case, if the Justice Ministry’s proposed changes to the Penal Code advance through parliament in the form presented recently by Justice Minister Lucia Žitňanská. Her proposed amendment to the Penal Code is what she calls the next step toward making Slovakia’s judiciary more effective – but some observers are saying the amendment may not emerge from parliament in its proposed form.

JUDGES could soon be allowed to put public officials in prison for wasting public funds because of negligence, and use information acquired via wiretapping in one case as evidence in another case, if the Justice Ministry’s proposed changes to the Penal Code advance through parliament in the form presented recently by Justice Minister Lucia Žitňanská. Her proposed amendment to the Penal Code is what she calls the next step toward making Slovakia’s judiciary more effective – but some observers are saying the amendment may not emerge from parliament in its proposed form.

“After opening up the judiciary to public control and after submitting to parliament an amendment to the Act on Prosecution, which also aims to open up and cast more light into the prosecution system, we come with another step, the aim of which is to make the judiciary in Slovakia more effective,” Žitňanská stated.

One set of changes in this amendment, which is now undergoing interdepartmental review, includes making vote-buying and illegal construction criminal offences under the Penal Code, permitting the use of information acquired by wiretapping to be used in another court case against a defendant, and widening the scope of crimes for which the police will be able to use persons other than police officers as their agents during an investigation.

Žitňanská stated that another of the amendment’s aims is to speed up criminal prosecution and to limit the possibility for obstructions on the part of defendants by putting the responsibility for early selection of an attorney more clearly on the defendant and by allowing plea bargain agreements about a defendant’s guilt and punishment to be reached directly before the court. All the changes are intended to become effective on September 1, 2011.

Negligent officials could be jailed



Another part of the amendment to the Penal Code would introduce the crime of negligence in wasting large sums of public money, €133,000 or more, by a responsible public official.

“Negligence here concerns the duties that accrue from the law, regardless of whether an intention is proven or not, they [the duties] simply have to be fulfilled by a public official,” said Mária Kolíková, the Justice Ministry’s state secretary (i.e. deputy minister).

She said, for example, that if the rules of public procurement are violated, whether intentionally or not, and the damages are more than €133,000 because of a public official’s violation of the rules, it means a crime has been committed.

Results of an investigation by Slovakia’s Supreme Audit Office (NKÚ) could serve as evidence in such a criminal prosecution, as well as practically any other evidence, the state secretary added.

“We don’t need to talk about specific cases, but in one specific case we have heard that intention will have to be proved,” Kolíkova said, hinting that she meant Slovakia’s infamous bulletin-board tender case.

“Under the new rules, in this case if someone had signed a document, he or she would bear responsibility for it, as well as everyone who had anything to do with the document [if] the document caused damages,” Kolíkova stated.

However, an expected change in the rules which would have held public officials accountable with their personal assets for a violation of the law, which was announced recently by Prime Minister Iveta Radičová, was not presented as part of the Penal Code amendment.

The Sme daily wrote that Rado Baťo, Radičová’s spokesperson, said changes to the law on material responsibility for damages caused during the performance of public powers are now under way.


Wiretap uncertainty



The amendment also proposes to resolve legal uncertainty about whether information acquired from a wiretap in one particular case can be used as evidence in another case.

“There have been cases in Slovakia when people were convicted on this basis already but there were varying legal opinions on that,” Žitňanská said, adding that the proposed amendment would not enlarge the necessary conditions for a wiretap to be authorised.

Even though the Slovak Bar Association (SAK) and judges cooperated with the ministry in drafting the amendment, some attorneys do not share Žitňanská’s enthusiasm for using information from a wiretap in one case as evidence in another case. The SAK’s secretary, attorney Andrej Popovec, said that wiretapping interferes with personal privacy and each such initiative must be preceded by a court order with reasoned justification.

“The proposed amendment would legalise violation of the constitutional right to privacy protection without clear specification and legal consent of a judge,” Popovec told The Slovak Spectator.

Žitňanská said she understands that attorneys want to widen their opportunity for defending clients, but added “I believe that it is in the interest of the state to have effective tools for discovering serious criminal activities”.

The proposed amendment would also permit additional situations when an agent who is not a member of the police corps could be used during the investigation of crimes and the minister stated this would help detect crimes by criminal or terrorist gangs.

“Today [the rules] mean that a policeman needs to infiltrate a criminal gang; under the new rules the police might be able to agree with a member of the gang to cooperate as an agent,” Žitňanská said.



Battle over prosecution



Lately, Žitňanská has been fully occupied pushing her amendment to the Act on Prosecution through parliament. Parliament passed the amendment to its second reading at the March parliamentary session only after passionate debate.

That amendment seeks to introduce a recorded parliamentary vote for the election of the general prosecutor and would limit the top prosecutor to a single seven-year term. In addition, the current position of prosecution clerks would be eliminated, to be replaced by prosecution assistants, and a more transparent selection procedure for district-level prosecutors would be introduced.

Representatives of the opposition Smer party have accused Žitňanská of attempting to place prosecutors and judges under the political control of the ruling coalition and have charged that she has done nothing so far to solve problems in the judiciary.

“You are creating an infernal tool that can be misused in the future,” Robert Fico, the chairman of Smer, said during a parliamentary debate, as quoted by the TASR newswire, further accusing the ruling coalition of trying to put judges, prosecutors and police all under its control so that it could “criminalise the opposition”.

The parliamentary opposition has also rejected the idea of a public vote to select the next general prosecutor. Fico stated that he would never recognise a prosecutor elected by an open vote.

The Justice Ministry is also proposing a ban on so-called negative orders, a process in which higher level prosecutors are currently permitted to order subordinate prosecutors to not launch criminal prosecution against a suspect, to not press charges or have a suspect arrested, or to cease criminal prosecution. Even some parties which are part of the ruling coalition have voiced reservations about such a ban and the acting head of the General Prosecutor’s Office, Deputy General Prosecutor Ladislav Tichý, has stated he would take the issue to Slovakia’s Constitutional Court if such a change is passed by parliament.


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