The special prosecutor commits a disciplinary offence

The petition for disciplinary proceedings was filed by the General Prosecutor of the Slovak Republic (hereinafter also referred to as the “disciplinary petitioner” or “Prosecutor General”) Maroš Žilinka on 17 August 2021. It concerned the opinion of the special prosecutor Daniel Lipšic – the disciplinary defendant, which he published on 28 July 2021 in the Denník N newspaper.

According to the disciplinary complainant, the disciplinary defendant should have committed a disciplinary offence by acting in violation of the legal obligation of the prosecutor to refrain from publicly expressing an opinion on cases that have not been legally concluded, as well as in violation of the instruction of the Prosecutor General of 22 May 2006 on the manner of informing the public through the press and other mass media.

In its decision, the Disciplinary Panel states that the published opinion can be divided into several parts according to its content. The first part of the opinion (the first three sentences of the introduction) is based on a general statement which is not in the nature of an expression of subjective opinion or a value judgment. The following part, however, is in the nature of a polemic with the order commented on. It is thus a polemic in which the disciplinary defendant expresses a subjective opinion on the evaluation of the evidentiary situation as well as the procedural procedure.

According to the Panel, part of the disciplinary defendant’s published opinion is in the nature of a media assessment of the evidentiary and procedural situation in a particular criminal case, and such a procedure calls into question the authority and impartiality of the judiciary or the prosecution. The Panel adds that, if the disciplinary accused was convinced of the illegality of the order commented on, he should have primarily resorted to internal means of investigating the possible illegal situation.

Related to the above is the fact concerning the media’s influence on public opinion. The public presentation of statements in criminal cases by the public prosecutor’s office which, by their very nature, have the effect of transferring evidence, whether from closed pre-trial proceedings or even public trials, into the media environment cannot be accepted.

In the circumstances of the case, the Disciplinary Panel also took into account the fact that this case represents to some extent a novelty in relation to the question of the restraint of the prosecutor’s statements, which has not yet been addressed in the case-law on disciplinary proceedings. At the same time, in that context, it is critical that it should indirectly address the clash of views between the Attorney General and the Special Prosecutor in the disciplinary proceedings.

In its decision, the Disciplinary Panel also addressed whether its interpretation of the prosecutor’s duty of restraint might have a disproportionate “chilling effect” on freedom of expression in the context of the case-law of the European Court of Human Rights

The ECHR stated, in relation to statements by the competent authorities about pending criminal proceedings, that Article 6 of the Convention does not mean that those authorities should not or cannot inform the public about pending criminal proceedings. However, they must do so with restraint and caution in order to respect the presumption of innocence of the persons concerned.

The disciplinary case was decided by Panel 32D of the Supreme Administrative Court of the Slovak Republic, composed of: the President of the Panel JUDr. Anita Filová, the Judges JUDr. Marián Fečík (Judge-rapporteur), prof. JUDr. Peter Potásch, PhD and lay judges JUDr. PhDr. Jaroslav Jarabinský and JUDr. Adriana Zacharová.