The Slovak Party Ban Case in Context: Dialogue between the Supreme and Constitutional Courts

—Max Steuer, Comenius University

The failed petition of the Slovak Attorney General to ban the far-right Kotleba: People’s Party Our Slovakia received wide domestic and international coverage. Legal developments in early 2019 that might have influenced the Supreme Court ruling in the case, however, did not attract attention. In January, the Slovak Constitutional Court invalidated several provisions of the Criminal Code meant to increase the efficiency of the prosecution of extreme speech. I will examine this decision to see if it could have constrained the decision-making of Supreme Court judges in the Party Ban Case.

This area of criminal law is among those most prone to politicization given that it is often a component of the official policy against political extremism. Slovakia is the only country in the Visegrad region that has not been criticized for the deterioration of the rule of law, and one where extreme far-right entered the Parliament relatively recently. The legal developments in Slovakia, therefore, provide a good opportunity to study how a democracy challenged by anti-democratic forces employs legal means to respond to the challenge.

The Constitutional Court Decision

When Kotleba’s party entered the Parliament in 2016, several parties formed a coalition to contain the far-right and defend the “state under the rule of law [against] political extremism” which is one of great “internal security risks,” as outlined in the government manifesto (p. 54). The government, however, did not specify how to counter Kotleba’s party. Some measures taken on the initiative of the Ministry of Justice included the strengthening of the units of the National Criminal Agency responsible for investigating “hate crimes” and a new list of expert witnesses titled “social sciences and humanities” with subareas on “political extremism” and “religious extremism.” As the number of expert witnesses registered this way remained low (only two expert witnesses are listed in the official database in this area), ad hoc expert witnesses have been frequently used, under a special legislative provision. Aside from these measures, it soon became clear that the extension of legal restrictions á la militant democracy rather than other societal measures (e.g. improvements in education) will be the prevailing policy.

As a result, an amendment to the Criminal Code entered into force from 2017. This amendment included two modifications that were challenged in the Constitutional Court by a group of opposition MPs. Firstly, it was a change to the grounds for criminalization of the founding, support and propagation of a movement (including ‘group’ or ‘ideology’) directed towards the suppression of fundamental rights and freedoms of peoples based on their race, ethnicity, nationality, religion or ‘other group feature’ (§ 421 sec. 1). The same term (‘other group feature’) was included into § 422 (sec. 1) that deals with hatred expressed through symbolic speech. Secondly, the crimes of defamation of nation, race and belief (§ 423 sec. 1 b) and incitement to violence or hatred against a group of persons § 424 (sec. 1) were amended to include ‘political conviction’ as one of the defining characteristics protected against the defamation or incitement by this provision.

The explanatory statement to these changes was scarce and, for example, it only justified the addition in § 424 with the vague reason ‘of complexity’. Other formulations were also amended, all in line with the philosophy of extending the grounds for criminalization and ‘untying the hands’ of the police, prosecution and the courts who had been perceived to be too constrained by the structure of the provisions.

Yes for Legal Realism, but the Struggle Continues

The Constitutional Court, according to the summary by its President, found fault with the vagueness and the generality of the challenged provisions. The Court invalidated the change to the Criminal Code but did not go beyond to asses whether it also violated Article 10 of the European Convention on Human Rights, even though the petitioners relied on the Convention. The Court seemed aware of the potential negative effect of the provisions, namely, the risk of their abuse to punish criticism against the political power and diverging application by different institutions in the criminal justice system. The Court’s approach was close to realist in the sense that it considered the societal consequences of the challenged legislation. The realism of the decision was illustrated by a remark that the Court “cultivates the law, but at the same time it must perceive it as it stands and how it is applied, hence as living law.”

However, the ruling was interpreted by actors engaging in extreme speech as their victory against the elites who want to “silence them.” The clash between the far right and those genuinely concerned about the effects of criminal restrictions on freedom of expression was epitomized in the petitioners’ legal representatives: both are respected lawyers who used several textbook arguments supportive of freedom of speech in their petition. Far-right actors and their supporters neglect the inconsistency that a decision stipulating limits to criminal restrictions of a fundamental right brings up in their theory of the ‘system punishing them.’ It remains to be seen whether at least some of their supporters recognize this inconsistency.

While the failed Party Ban Case was not a case of criminal prosecution, the earlier decision of the Constitutional Court might have discouraged Supreme Court judges from interfering with the freedom of association of MPs in Kotleba’s Party. The two decisions thus represent an indirect dialogue of sorts between Bratislava (seat of the Supreme Court) and Košice (seat of the Constitutional Court). The declaration of unconstitutionality might affect the outcomes of two individual cases of prosecution. The first one is the prosecution of Marian Kotleba himself for handing out cheques to people in need with the ominous symbolic sum of 1488 euros during promotional event of his party. The second one is the charge against one of Kotleba’s MPs for anti-Roma statements presented in a regional broadcast published on the internet (all these cases are, via various procedures, pending before the Supreme Court).

Optimally, the SCC’s January ruling will be a lesson for the legislator to be more creative if it means its fight against extreme speech seriously. In this way, it joins the examples of failed criminal proceedings that resonated in the domestic discourse, such as that of another MP of Kotleba’s party who published a statement questioning the Holocaust on social media but was acquitted mainly because his authorship of the statement could not have been proven. An informal response of the Slovak parliament to this and other cases of more or less explicit Holocaust denial was the adoption of the controversial definition of the Holocaust in the form of a declaration rather than any more systematic educational or promotional action. In sum, looking at the extent to which such outcomes grant legitimacy to extreme speech by the authority of the law itself, it might as well be the right time to learn. 

Suggested Citation: Max Steuer, The Slovak Party Ban Case in Context: Dialogue between the Supreme and Constitutional Courts, Int’l J. Const. L. Blog, May 28, 2019, at: http://www.iconnectblog.com/2019/05/the-slovak-party-ban-case-in-context:-dialogue-between-the-supreme-and-constitutional-courts