The Constitutional Court found us right. Repeatedly

7. sepptember 2022

The Fair-play Alliance has long sought to reduce the space for corruption created by unclearly defined processes in state and public administration. It therefore welcomed the opportunity to apply for a grant under the ACF programme. This has enabled it to address some of its activities in a deeper and longer-term way. Especially the word ‘long-term’ is key. In our experience, social change is mainly the result of hard work over many years.

The Fair Play Alliance project has focused on two issues. One is the repressive work of the police, where we consider long investigations to be a fundamental problem. The phase between the filing of a criminal complaint and the investigator’s decision whether to prosecute should, according to the wording of the law, be no more than 30 days. In the experience of the Fair Play Alliance, it takes many times longer for economic crimes – even several years. Of course, such delays have consequences, even if an investigation does eventually take place. Documentary evidence may be shredded in the meantime, witnesses forget details, and so on. Repeatedly.

Any activity directed towards obtaining information, which is exactly what happens in investigations, runs up against the non-public nature of investigations. Hence the phrase ‘as the investigation is still ongoing, the police cannot provide detailed information’. The Fair-play Alliance has therefore used its criminal complaints filed in the past and has filed several more in the course of the project. In these cases, it ceased to be a “public” but acquired the status of a whistleblower, which allowed it, for example, to consult the criminal file where all relevant activities of the investigator are captured.

With this insight into what was going on – or rather not going on – after the filing of a criminal complaint, she was able to analyse what was going on “under the hood”. Eventually, she forwarded a summary of her findings to the responsible officials. In addition, she also sought to improve the legislation concerning the police, the prosecutor’s office and their work. She used her right to comment on legislation submitted by the government and submitted over 100 comments on proposed changes to the law to the MPC. Almost a third of them were accepted or at least partially accepted.

The second problem addressed by the Fair Play Alliance project was the lack of enforcement capacity to obtain and disseminate information. Specifically, the courts are slow to rule on “information law” disputes and do not always rule as they should. In this part of the project, the Fair-play Alliance used the information disclosure lawsuits it has been conducting with state institutions for years. In the course of the project, in two cases, it has appealed to the Constitutional Court of the Slovak Republic with a complaint of violation of its constitutional right to obtain information and judicial protection.

In both cases, the Constitutional Court of the Slovak Republic found in favour of Fair-play Alliance.

In the first case, he acknowledged court delays in an ongoing lawsuit over information from the Ministry of Education. He stated that the heavy caseload of the courts cannot be accepted as a reason for inaction in disputes concerning constitutional rights.

The second ruling of the Constitutional Court came after the formal completion of the ACF project, but was groundbreaking. In it, the Constitutional Court commented in detail on the “merits” of our complaint and examined in detail the reasoning of the Supreme Court of the Slovak Republic. The case concerned the disclosure of the protocol of an inspection in which the police inspectorate examined the legality of the police procedure in the case of Hedvig Malinova. The Fair-play Alliance unsuccessfully litigated against the Ministry of the Interior for more than ten years. This ruling of the Constitutional Court is groundbreaking in that the Constitutional Court rejected a Supreme Court ruling that allowed courts to dismiss disputes over information on the basis of the “concept of implied limitation” – a legal construction that had no basis in law. We summarised this in more detail on the Fair-play Alliance blog. This ruling of the Constitutional Court was also included in the “Judicial Review” in the category of precedents.

In the future, it has clearly and directly influenced judicial practice – the way courts decide in many cases of disputes with state institutions on the provision of information.

The key staff of the Fair-play Alliance during the ACF project were Peter Kunder and Rastislav Diovčoš. They have worked in the organisation for almost 20 years. They have been working for a long time mainly on increasing opportunities for public scrutiny and monitoring the implementation of systemic changes in society.