Daniel Lipšic (source: SITA)
THE ORIGIN of assets accumulated by some Slovak politicians has remained unclear for many years. That, as well as the fact that Slovakia still lacks appropriate and effective laws in this area, is a good reason for a big pre-election issue – such as proposing a new law on the origin of assets – to climb to the top tier of the political agenda as the June national elections approach.
Prime Minister Robert Fico and Christian Democratic MP Daniel Lipšic started the pre-election competition in the first week of 2010 with proposals similar in many respects to each other's. It is Fico’s second attempt to enact such a law, as his first legislative proposal was passed by parliament in 2005 but was subsequently ruled unconstitutional by the Constitutional Court in September 2008 over concerns about retroactivity in the law as well as arguments that it interfered with ownership rights. The Constitutional Court also ruled that the burden of proof was inappropriately placed on citizens rather than public and state institutions and that its procedures would start a new, unknown and non-transparent way of expropriating citizens’ personal property.
The new proposals
To resolve the constitutional conflicts found by the court, both Fico and Lipšic are proposing an amendment to the constitution.
“We will add to Article 20 a new paragraph that will allow the passing of a special law that will deal with assets acquired illegally or acquired in such a way that, for instance, someone bought an asset with illegal income,” Fico said, in describing what he called “a small amendment to the constitution”, as quoted by the SITA newswire, with the effect that the constitution would then only protect legally-acquired property.
While Lipšic proposes a similar amendment, there are several differences between his draft and Fico’s. In Fico’s proposal, police and prosecutors would consider designating a person’s assets suspicious if there was a difference between their declared income and the value of their assets of at least 1,500 times the monthly minimum wage, currently slightly over €300. Lipšic proposes that the law cover assets that exceed 500 times the minimum wage.
Fico proposes that the burden of proving to a court that the origin of one’s assets is legal will be on the person charged and if this is not proven, their assets would be transferred to the state. Lipšic proposes that Slovakia’s financial police should forward any suspicions about acquired assets to the prosecutor’s office, which in turn, would decide whether to take a case to the courts. When a case reached court, a citizen whose assets were being challenged would be required to provide security, similar to bail, amounting to the difference between their legally-proven income and the assets in question. The citizen would then be given five years to prove that those assets were acquired legally; if this were not done, the security would become the property of the state.
The need for broad agreement
The cabinet approved Fico’s draft at its session on January 13 and passed it to parliament as a government proposal.
“It’s about the fulfilment of the programme statement of the government,” Fico, who is also Smer party leader, said prior to the cabinet session, as quoted by SITA. “I therefore expect the coalition partners to support the proposal.”
In the end only ministers nominated by Smer voted for the proposal. Smer’s coalition partners, the Slovak National Party (SNS) and the Movement for a Democratic Slovakia (HZDS), did not back the draft. The heads of both parties have had problems in the past explaining the origins of their personal assets – the HZDS’s Vladimír Mečiar has never provided a satisfactory explanation of how he managed to purchase his expensive Elektra villa in Trenčianske Teplice and the SNS’s Ján Slota came under fire in the media last year when he was photographed driving a luxury car and flying a jet plane.
The HZDS has stated that it wants the government and parliament to first consider a draft law on origin of assets prepared by HZDS-nominated Justice Minister Viera Petríková in December 2009, SITA reported.
Mečiar said on January 12, a day before the government’s session, that he could not support Fico’s draft because of its retroactivity provision and because it would interfere with Slovakia’s inheritance procedures.
An amendment to Slovakia’s constitution can be passed only with a two-thirds majority of MPs' votes. Without the support of his coalition partners, Fico will be forced to rely to a large extent on support from MPs from opposition parties.
“I have an interest in passing this law and I don’t care who votes for it,” Fico said after the government’s session, adding that he will be grateful even if a cleaning lady raises her hand to support the amendment, SITA reported.
Fico did not specify his plans for negotiating with the opposition. However, the government made a step towards potential agreement by dropping a paragraph from the draft that would have limited the scope of the law only to assets acquired after 1990. This had been criticised by Lipšic, who said that it would make the law ineffective. The Sme daily also reported that the Constitutional Court had rejected such a limitation in its 2008 ruling.
Ideas from an NGO
Pavel Nechala, a lawyer with the non-governmental organisation Transparency International Slovakia, said that Slovakia needs a law that would help in taking illegally-acquired property away from its illegitimate owners.
“But given the present mistrust of citizens in Slovak courts and the number of cases Slovak police are floundering in, such as the explosive sent to Ireland or the Franciscans’ case, it’s risky to introduce a legal norm that transfers the burden of proof onto citizens and is retroactive,” Nechala told The Slovak Spectator.
Nechala suggested that for an origin-of-assets law to be effective it must have a certain basis which he expressed in three distinct steps. First, he said it is necessary to put more pressure on public officials to submit complete and comprehensive asset declarations as well as to have well-functioning mechanisms to verify the declarations, and to criminalise false statements made in the asset declaration. Secondly, he suggested that criminal responsibility should apply to people who are unable to explain the origins of their assets and added that persons who could help reveal or prove the existence of illegal income should be motivated to do so.
“The motivation of such a person could be the possibility to get 10 to 20 percent of the assets revealed as having been acquired from illegal income, which could motivate Slovaks to become more willing to file criminal complaints,” Nechala said, adding that in a 2009 survey only 6 percent of the respondents said they would report such suspicions to applicable authorities. Nechala said that the third precondition for such a law to be effective would be a reliable system of protection for those individuals who report their suspicions to authorities.
Nechala noted that legislation regarding the origin of assets is very topical right now on the international level, because the Conference of the States Parties to the United Nations Convention against Corruption dealt last November with the topic of returning property acquired by corrupt practices. Slovakia did not participate in the conference.
