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Country Review Report of Slovak Republic

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Country Review Report of Slovak Republic Country Review Report of Slovak Republic Review by Malta and Poland of the implementation by the Slovak Republic of articles 15 – 42 of Chapter III. “Criminalization and law enforcement” and articles 44 – 50 of Chapter IV. “International cooperation” of the United Nations Convention against Corruption for the review cycle 2010 - 2015 Page 1 of 167 I. Introduction 1. The Conference of the States Parties to the United Nations Convention against Corruption (the “Convention” or “UNCAC”) was established pursuant to article 63 of the Convention to, inter alia, promote and review the implementation of the Convention. 2. In accordance with article 63, paragraph 7, of the Convention, the Conference established at its third session, held in Doha from 9 to 13 November 2009, the Mechanism for the Review of Implementation of the Convention. The Mechanism was established also pursuant to article 4, paragraph 1, of the Convention, which states that States parties shall carry out their obligations under the Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and of non-intervention in the domestic affairs of other States. 3. The Review Mechanism is an intergovernmental process whose overall goal is to assist States parties in implementing the Convention. 4. The review process is based on the terms of reference of the Review Mechanism. II. Process 5. The following review of the implementation by the Slovak Republic of the Convention is based on the completed response to the comprehensive self-assessment checklist received from the Slovak Republic, and any supplementary information provided in accordance with paragraph 27 of the terms of reference of the Review Mechanism and the outcome of the constructive dialogue between the governmental experts from Malta and Poland, as well as the Slovak Republic, by means of telephone conferences and e-mail exchanges in accordance with the terms of reference and involving Dr. Michaela Kontriková, Mr. Juraj Novocký and Mr. Ronald Kakašas focal points from the Slovak Republic, Mr. Paul Vassallo from Malta, and Ms. Agnieszka Stawiarz and Mr. Paweł Rutkowski from Poland. The staff members from the Secretariat were Mr. Jonathan Agar and Ms. Annika Wythes. 6. A country visit, agreed to by the Slovak Republic, was conducted from 22 to 25 May 2012. III. Executive summary 1.Introduction 1.1.Overview of the legal and institutional framework of the Slovak Republic in the context of implementation of the United Nations Convention against Corruption 7. The Slovak Republic signed the United Nations Convention against Corruption Convention on 9 December 2003 and following agreement of the National Council in accordance with Article 7(4) of the Constitution, the President ratified the Convention on 25 April 2006. The Slovak Republic deposited its instrument of ratification with the Secretary-General on 16 June 2006 and the Convention entered into force domestically on 1 July 2006. Page 2 of 167 8. The Constitution, which entered into force on 1st October 1992, represents the supreme law of the Slovak Republic. Article 124 of the Constitution establishes the Constitutional Court as an independent judicial authority vested with the mandate to protect the Constitution. In doing so, the Court is responsible for deciding on the conformity of domestic laws with the Constitution, constitutional laws and international treaties which have been ratified by the Slovak Republic. 9. The Office of Public Prosecution, headed by the Attorney General, is established as an independent and uniform system and is mandated to pursue criminal proceedings on behalf of the State against any individual suspected of having committed a crime. Prosecutors are obliged to use all statutory means available to them with a view to ensuring the protection of the rights guaranteed by law to individuals, legal entities and the State. 10. Slovakia has in recent years developed an integrated system of investigative, prosecutorial and judicial bodies specialized in combating corruption and other serious economic crimes. The Anti-Corruption Bureau 11. The Anti-Corruption Bureau, established in January 2004, has exclusive jurisdiction over the investigation of criminal offences under the substantive jurisdiction of the Special Criminal Court (see below) including corruption and serious economic crime offences, and is also responsible for international cooperation in relation to such investigations. The Bureau operates under the authority of the President of the Police force and under the supervision of prosecutorial authorities but is functionally independent from other parts of the police. The Special Prosecution Office 12. The Special Prosecution Office, established in September 2004, has exclusive jurisdiction over the prosecution of corruption and serious economic crime offences. Acting under the authority of the Attorney General, the Special Prosecution is technically part of, but functionally independent from, the General Prosecution Office. The Specialized Penal Court 13. The Specialised Penal Court, established in July 2009, has exclusive jurisdiction in relation to mainstream corruption offences and other serious economic crimes. The Specialized Court also has exclusive criminal jurisdiction in relation to cases involving members of parliament and other senior public officials. The Financial Intelligence Unit 14. The Financial Intelligence Unit (FIU), established in 1996, is the primary body responsible for enforcing the requirements of Slovakia’s anti-money laundering legislation. In doing so, the FIU receives, analyzes and processes unusual transaction reports (UTRs) received from financial institutions, transfers information to relevant law enforcement authorities where they consider a criminal offence may have been committed Page 3 of 167 and facilitates international cooperation regarding information held by financial institutions. The FIU also contains the central Asset Recovery Office. 15. UNCAC offences are predominately criminalized in the Criminal Code, Act No. 300/2005 Coll. of 1 January 2006 (“Criminal Code”) and the Code of Criminal Procedure, Act No. 301/2005 Coll. of 1 January 2006 (“Code of Criminal Procedure”). 16. The lex generalis of the Criminal Code and the Criminal Procedure Code, is supplemented by a number of lex specialis instruments, including the Act of 4 March 2010 on the Proof of Origin of Property, No. 101/2010 Coll. (“Proof of Origin Act”) and Act No. 297/2008 Coll. on the Prevention of Legalization of Proceeds of Criminal Activity and Terrorist Financing (“the Anti-Money Laundering Act”). 2.Chapter III: Criminalization and Law Enforcement 2.1. Observations on the implementation of the articles under review Bribery and trading in influence (articles 15, 16, 18, 21) 17. Sections 332 and 333 of the Criminal Code criminalize active bribery both in the public and private sector. In practice, however, section 333 is used for prosecutions in relation to bribery in the public sector, while section 332 is used in relation to bribery in the private sector. This is due to the additional requirement under section 333 that the act of bribery take place in relation to the “procurement of a thing of general interest”, meaning that the act of bribery was in some way contrary to the public interest. This requirement is more likely to be satisfied in the context of the bribery of public officials than private individuals. 18. Articles 328 and 329 of the Criminal Code criminalize passive bribery when committed either directly or through an intermediary. As in the case of active bribery, while both provisions could technically be used to prosecute passive bribery in both the public and private sector, in practice prosecutors will use article 329 to prosecute public officials due to its requirement that the act of bribery relates to the “procurement of a thing of general interest”. 19. Active bribery of foreign public officials and officials of international organizations is criminalized under articles 334 and 335 the Criminal Code, with articles 330 and 331 criminalizing passive bribery by such officials. However, to date, no prosecutions have been brought under these provisions. 20. Increased penalties are applicable where the act of bribery has been committed by a public official. The definition of ‘public official’ is provided in a listed format under section 128 of the Criminal Code, but case-law indicates that the courts take a narrow approach when considering whether a public official is acting “in the exercise of his/her official duties”. 21. While the investigation and prosecution of corruption offences has increased in recent years, less progress had been made in relation to the prosecution of bribery in the private sector. Page 4 of 167 22. Trading in influence is criminalized under section 336 of the Criminal Code, but at present does not extend to the trading of “supposed” influence. Money-laundering, concealment (articles 23, 24) 23. Slovakia has met the requirements of the Convention in relation to money laundering. Section 233 of the Criminal Code criminalizes a broad range of actions in relation to the proceeds of crime including the transferring, holding, hiding, concealing, using, consuming, destroying or altering of such proceeds with the intention of concealing their criminal origin. The range of predicate offences covered by Section 233 is broad enough as it applies to actions taken in relation to the proceeds of crime derived from any criminal offence.
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