It has been more than three years since former PM Robert Fico tried to get appointed to the Constitutional Court,[1] thinking he would be able to either bargain[2] or force his way onto the CC.[3] At the time, he did not seek just to become a rank-and-file constitutional judge. Instead, Fico wanted to be the Court President because he believed that his experience and political capital as a former three-time PM qualified him for the position of leadership in his next career.[4]
Fico was ultimately forced to withdraw his application[5] due to a controversy over his CV and broad political opposition to his nomination.[6] However, if he did not, we could have been in a situation where the CC President faced criminal prosecution.[7] That is because Robert Fico and his close colleague, former Minister of Interior Robert Kalíňak, were charged last week, and the latter was also detained, for leading an organised crime gang. The police claim that Fico and his co-defendants used their power to discredit opponents, illegally accessing private police and tax records.[8]
Fico has not been yet arrested because he is an MP. Members of Parliament enjoy robust protections and privileges to ensure the free exercise of the political office. For example, MPs cannot be prosecuted for voting on drafts, bills, motions, or any act or speech uttered in Parliament. Moreover, according to Article 78(2) of the Constitution, MPs cannot be taken into custody without the consent of the Parliament. The only exception is if an MP has been caught redhanded while committing a crime. Historically, the Parliament needed to consent also the prosecution of an MP, but a constitutional amendment in 2012[9] changed this only to necessitate parliamentary approval for criminal detention.[10]
Consequently, the Parliament should soon vote to either allow Fico's criminal detention or deny the motion, in which case he will be prosecuted without being taken into custody. The parliamentary Mandate and Immunity committee has recommended that MPs approve the prosecution's application for consent with the detention of an MP. However, the committee's opinions are not binding on the Parliament.[11] Even if the MPs vote to approve the application, a court will have finally to determine if the detention of an MP is justified. Whatever the outcome, the criminal prosecution of the former three-times PM will be one of the defining legal cases in the history of the Slovak republic.[12]
Suggested citation: Šimon Drugda, “ Three-times Slovak PM Charged in a Criminal Case” (slovakconlaw, 3 May 2022) <https://slovakconlaw.blogspot.com/2022/05/three-times-slovak-prime-m-charged.html>
[1] "Ex-PM Fico wants to be a Constitutional Court judge" (The Slovak Spectator, 7 January 2019) <https://spectator.sme.sk/c/22023186/ex-pm-fico-wants-to-be-a-constitutional-court-judge.html>; and
[2] "Constitutional Court hearings: The vote is a political affair, Fico says" (The Slovak Spectator, 23 January 2019) <https://spectator.sme.sk/c/22036335/constitutional-court-hearings-the-vote-is-a-political-affair-fico-says.html>
[3] "President Kiska: Fico wanted to blackmail me" (The Slovak Spectator, 25 February 2019) <https://spectator.sme.sk/c/22061262/president-kiska-fico-wanted-to-blackmail-me.html>
[4] TA3, "Ako prebiehalo vypočúvania Fica - kandidáta na ústavného sudcu" (Televízia TA3 YouTube, 12 February 2019) <https://www.youtube.com/watch?v=jpGOwjptkUA&ab_channel=TelevíziaTA3>
[5] "Slovakia: Robert Fico renounces bid for Constitutional Court job" (Kafkadesk, 13 February 2019) <https://kafkadesk.org/2019/02/13/slovakia-robert-fico-renounces-bid-for-constitutional-court-job/>
[6] Constitutional Committee, "Živé vysielanie TV NR SR - Vypočutie kandidátov na sudcov Ústavného súdu Slovenskej republiky" (TV NR SR - press live YouTube, 7 February 2019) <https://www.youtube.com/watch?v=Fpb1POX_t8w&ab_channel=TVNRSR-presslive>
[7] Two other candidates for CC judges from 2019 have already been prosecuted for corruption. Retrospectively, it seems that the position attracted some in bad faith.
[8] William Nattrass, "Is Slovakia a mafia state?" (The Spectator, 26 April 2022) <https://www.spectator.co.uk/article/is-slovakia-a-mafia-state->
[9] Constitutional Act No 232/2012 Coll. Accessible at: <https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/2012/232/20120901.html>
[10] Beata Balogová, "Parties agree to end MPs' immunity" (21 May 2012) (The Slovak Spectator, 21 May 2012) <https://spectator.sme.sk/c/20043457/parties-agree-to-end-mps-immunity.html>
[11] Nina Hrabovská Francelová, "Even with Fico in custody, Smer may retain popular support" (The Slovak Spectator, 28 April 2022) <https://spectator.sme.sk/c/22896574/parliament-debates-whether-to-allow-ficos-arrest.html>
[12] There is a precedent for the vote of the Parlaiemnt to allow the criminal, at the time, prosecution of an MP. In 1998, the Parliament consented to the prosecution of Ivan Lexa, who was implicated in the abduction of Michal Kováč Jr., the son of the former Slovak President. For context, see Ľuba Lesná, "Lexa wins case in Human Rights Court" (The Slovak Spectator, 29 September 2009) <https://spectator.sme.sk/c/20030535/lexa-wins-case-in-human-rights-court.html>
