GP cancels indictment of Sme Rodina MP using paragraph 363 again

President turns to Constitutional Court.

Maroš ŽilinkaMaroš Žilinka (Source: Sme - Marko Erd)

General Prosecutor Maroš Žilinka cancelled the indictment of Sme Rodina MP Martin Borguľa on Friday last week. Since last April, Borguľa has faced corruption charges. The General Prosecutor once again applied the controversial paragraph 363 of the Criminal Code.

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Maroš Žilinka was nominated by the Sme Rodina party.

Paragraph 363 of the Penal Code grants the general prosecutor the exclusive power to scrap any decision by the police or other prosecutors during pre-trial proceedings - this includes the power to completely cancel a criminal prosecution - if they determine that a law has been violated.

Related article Last week was big week for 363 Read more 

Reasons for cancellation

During a press conference Žilinka explained his reasons for doing so by citing procedural errors on the part of the NAKA investigator and the Special Prosecutor's Office. He also did not like the fact that the police changed the qualification of the crime during the investigation.

Žilinka also defended Borguľa claiming there is not enough evidence in his case for him to be prosecuted at all. After his explanation he ran away from journalists and did not answer questions, as usual.

At first, Borguľa was investigated on the basis of extortion and bribery, but this was changed to accepting a bribe.

The allegations against Borguľa were related to a legal case dating to 2018 when, the MP admits, he paid tens of thousands of euros to police officers when he was running for the post of mayor of the Old Town, Bratislava.

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He claimed police had contacted him demanding €50,000 if he wanted to run for mayor.

Borguľa said he felt he could not go to police for help, and that it was easier for him to pay the money than risk officers smashing down his door in front of his two young children and elderly mother.

According to Borguľa, his prosecution was politically motivated, referring to the fact that the police charged him the day before the parliament voted on whether to give the green light to the prosecutor to request pre-trial custody for former prime minister Robert Fico. Borguľa claims it was meant to intimidate him before the vote.

Related article Coalition MP facing corruption charges Read more 


"The election of Žilinka as the General Prosecutor has been the biggest mistake of this coalition," Interim Prime Minister Eduard Heger (OĽaNO) wrote on social media in response to the cancellation.

The former Minister of Justice Mária Kolíková is also critical of the decision. She says the General Prosecutor's Office has to be hold accountable and face public scrutiny. Kolíková has called for the change of the controversial paragraph for some time.

SaS party considers the application of the paragraph in the case of Borguľa to be another political decision of the General Prosecutor. According to SaS MP Alojz Baránik, Žilinka does not act freely and is in a conflict of interests.

Sme Rodina party will not comment on the decision of the General Prosecutor once again. "It is purely his jurisdiction and we respect that," the statement of the party reads.

Related article Prosecutor General’s Office scraps criminal charges against ex-PM Fico Read more 

President turns to Constitutional Court

Last Friday, President Zuzana Čaputová announced she will send the controversial paragraph to the Constitutional Court this week.

"I am convinced that the paragraph as it currently stands and the powers that the General Prosecutor has on its basis interfere disproportionately with the independence of the judiciary, and do not contribute to building trust in it either," she wrote on social media.

She also pointed to the fact there is no remedy to the paragraph, and its use by the General Prosecutor arouses controversy in the whole of society.

In early December, the General Prosecutor’s Office scrapped criminal charges of abuse of power and formation of an organised criminal group laid against Robert Fico and his right-hand-man, former interior minister Robert Kaliňák. The decision caused an uproar.

Since there was no political will to change the legislation in the past period, the President decided to use her power and turn to the Constitutional Court.

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