Prosecutors of the Special Prosecutor's Office: Ladislav Masár, Vladimír Kuruc, Daniel Lipšic, Ondrej Repa and Matúš Harkabus (from left to right). (source: SME - Marko Erd)
When the Special Prosecutor's Office tried to bring to trial the former head of Slovakia's central secret intelligence service (SIS), Vladimír Pčolinský, the Prosecutor General's Office did everything to prevent it.
At first, the office led by Prosecutor General Maroš Žilinka helped Pčolinský by exercising the controversial Paragraph 363 – a tool that allows the prosecutor general to cancel a prosecutor's or an investigator's valid decision in a criminal case, but the Prosecutor General's Office did not manage to do so when the former SIS head was charged again.
The Special Prosecutor's Office, which falls under the Prosecutor General's Office, filed the indictment against Pčolinský in May 2022, before Žilinka had time to assess Pčolinský's new request to the prosecutor general to apply Paragraph 363 in his case.
Since the Prosecutor General's Office did not like it, they found another way.
"After the preliminary proceedings, a prosecutor from the Prosecutor General's Office informed the judge about the shortcomings of the proceedings and why they are illegal," Prosecutor Ladislav Masár from the Special Prosecutor's Office described the situation at a press conference on January 25.
He added that he had never experienced anything like this.
Prosecutors of the Special Prosecutor's Office learned about the initiative of Prosecutor Martina Cibuľová only later, when the Specialised Criminal Court returned the indictment filed against Pčolinský to them in September of last year. Judge Rastislav Stierka then mentioned Cibuľová's letter in his decision.
Special Prosecutor Daniel Lipšic finds Cibuľová's letter to be astonishing.
"That's what the defence does, that's not what prosecutors do," he said.
Cibuľová's initiative did not pay off. The Supreme Court decided that the reservations of the Prosecutor General's Office were not justified. The court rejected the indictment due to a procedural error that the judge identified in Pčolinský's unrecognised sick leave.
Pčolinský claimed that he could not come to study his case file because of his sick leave. The study of the file was the last step before filing the indictment. The investigator and the prosecutor evaluated it as an obstruction and filed the indictment without this step.
According to the Special Prosecutor's Office, Cibuľová's approach was unprecedented. However, this office also noticed a similar approach in two other high-profile cases. In addition to the Pčolinský case, letters were also sent out in the case of the oligarch Miroslav Výboh, who is deemed to have close links with the former ruling party of Smer; and in the case of the former special prosecutor Dušan Kováčik, who was convicted in a corruption case last year.
Different approach applied to identical situations
On January 25, the Prosecutor General's Office denied the letters of its prosecutors addressed to the court, though this effort by Cibuľová is mentioned in the court's decision.
The prosecutors of the Special Prosecutor's Office agree that nothing similar happened in the past. In their opinion, proceedings based on Paragraph 363 should not even continue after an indictment is filed with the court. Prosecutors from the criminal department at the Prosecutor General's Office should only pass on such a request, such as Pčolinský's, to the court so that the judge can familiarise themself with it and evaluate it themself.
"I have never experienced them [prosecutors from the Prosecutor General's Office] commenting, evaluating and citing what the supervisory prosecutor did wrongly and illegally," said Masár, who himself worked at the Prosecutor General's Office a year and a half ago before joining the Special Prosecutor's Office.
Prosecutor of the Special Prosecutor's Office, Ondrej Repa, who oversees Výboh's case, where the same situation occurred, is similarly taken aback by what the Prosecutor General's Office did. No one told him about a letter that concerned Výboh's case.
"We learned about it only from the case file. There was a motion for the court that said it would have been appropriate to reject the indictment," Repa said.
He compares this approach to another case he oversees. In that case, after the indictment was filed, the accused also asked the prosecutor general to put Paragraph 363 into practice. The Prosecutor General's Office reacted differently to Výboh's case. The request was rejected.
The Výboh case was not overturned by the intervention of the Prosecutor General's Office. The Specialised Criminal Court accepted the indictment anyway. The date of the hearing, which will probably be held in the absence of the oligarch as he refuses to return to Slovakia, is yet to be announced.
A letter from the Prosecutor General's Office most visibly affected the Kováčik case (not the case where he has already been found guilty). Specialised Criminal Court Judge Michal Truban initially rejected the indictment based on the letter. However, after the intervention of the Supreme Court, he had to change his decision. The process started in September last year.
According to Special Prosecutor Lipšic, these and other well-known cases show that the Prosecutor General's Office applies Paragraph 363 differently to influential people and differently to ordinary people.
"Different rules and opinions are applied in cases involving influential persons, varying from the cases of people who do not have such influence," Lipšic said.
He added that the success rate of his office in the courts was up to 94 per cent last year. The courts returned one indictment - the one concerning Kováčik.
Most common argument by the Prosecutor General's Office
Lipšic drew attention to the different use of Paragraph 363 during the Žilinka era at a joint press conference with four other prosecutors of his office. In addition to Masár and Repa, prosecutors Vladimír Kuruc and Matúš Harkabus also attended the press conference.
At the same time, the prosecutors pointed out that the Prosecutor General's Office has repeatedly used Paragraph 363, with the explanation that there is a lack of evidence in some cases. These are also cases in which the courts previously saw a reason not only to accuse people, but to send them into custody. Such was the case of Pčolinský or ex-interior minister Robert Kaliňák (Smer), who was in custody. Ex-PM Robert Fico (Smer) was also accused in the same case (Twilight) as Kaliňák, but the parliament did not consent to his custody. Žilinka 's office dropped the charges against all those named.
"I think that it is definitely a problem for the rule of law if, with some degree of regularity, the decisions of the prosecutor general come into conflict with the decisions of the Supreme Court on the same matter," Lipšic said.
At the same time, Kuruc mentioned cases when the courts recognised the defendants as guilty even when there was one witness against them.
Applying the arguments of a single witness, the Prosecutor General's Office in the past cancelled a charge, for example, against the governor of the National Bank of Slovakia, Peter Kažimír.
The governor faces corruption-related charges again.
In 2021, Žilinka initiated a disciplinary action against Lipšic for commenting on an open case that did not fall within his office's purview. The court later ruled that Lipšic had committed a disciplinary offence.
In response to the press conference, Žilinka reminded Lipšic of the disciplinary action.
© Sme
