accountability, impartiality, freedom of expression

Freedom of Expression and Association

Komisija za etiko in integriteto Državnotožilskega sveta Republike Slovenije

Ethics and Integrity Commission of the State Prosecutorial Council of the Republic of Slovenia

Dts 21/2018-44

20 November 2018

N/A

N/A

N/A

N/A

Freedom of expression of state prosecutors, political expression, the duty of discretion, lack of propriety and moderation, impartiality and public trust in state prosecutors, ethical rules breached.

What are the limits of freedom of expression of prosecutors?
Whether the duty of discretion allows for statement that can be understood to reveal party-political preferences of a state prosecutor?
What weight does the position of a supreme state prosecutor carry in the assessment? What about the venue of the statement (a session of the Parliamentary Committee)?

N/A

N/A

Article 38.a, Article 46, Article 102 (Alinea no. 17), Article 108a of the State Prosecutors’s Office Act
Code of Ethics of State Prosecutors (link to English text: https://www.drzavnotozilski-svet.si/code-of-ethics-of-state-prosecutors)
Article 49 of the Rule of Procedure of the State Prosecutorial Council
Article 39, Article 136 of the Constitution of the Republic of Slovenia

The case concerns a supreme state prosecutor, who was invited to speak at the 1st session of the Committee for the Judiciary of the newly elected National Assembly of the Republic of Slovenia. In the context of debate concerning the increasing number of criminal offences, committed by employers against workers, he expressed his contentment over the fact that the Left (sl. Levica – the name of a political party) has exceeded the parliamentary elections threshold, and entered parliament. He underlined the fact that state prosecution services cannot enhance the working conditions of workers or ensure that workers would be valued as they once were. Criminal prosecution is only the strongest arsenal the state has at its disposal. The National Assembly and the Government are the institutions that can decrease the power of the “capital”, which must be better taxed and if it whines it will go abroad, let it go.

After the session, his speech was published in the media and on social media. Various commentators condemned the discourse as political and unworthy of a state prosecutor. Some called for his dismissal and called him a Bolshevik. The State Prosecutor General decided to refer the case to the Ethical Commission of the State Prosecutorial Council (the Ethical Commission).     

The Ethical Commission found that the impugned remarks were contrary to Principle II (impartiality) and Principle III (reputation, public image).   It first outlined the context of the impugned remarks. The supreme state prosecutor attended the session of the Committee for the Judiciary to present the 2017 Joint annual report on the work of the State Prosecutor's Offices. The statements were given in reply to a question of a MP, who was also a member of the Committee for the Judiciary. The Ethical Commission underlined that it took into account the content of the statements and the context – both of which are equally important. It ruled that the statements constituted a publicly expressed support of a political party, given in a professional capacity, as the state prosecutor was presenting the above-mentioned report.

Second, the Ethical Commission State outlined the applicable rules and principles. Prosecutors are bound by ethical principles (which are at the same time intrinsically linked with the office and duties of the state prosecutors) according to Article 38.a of the State Prosecutor’s Office Act. The Ethical Commission further noted that state prosecutors are part of the society and cannot be fully isolated therefrom. It underlined that the Constitution of the Republic of Slovenia does not prohibit state prosecutors from being members of the political parties. However, it prohibits them from assuming functions in bodies of political parties (Article 136 of the Constitution). Moreover, State prosecutors are entitled to run for various political functions. During occupying such functions, their state prosecutorial function is suspended (Article 46 of the State Prosecutors’s Office Act). As other citizens, state prosecutors are entitled to freedom of expression (Article 39 of the Constitution)

Turning to the present case, the Ethical Commission held:

“[T]hat it is important that public prosecutors exercise restraint in expressing their opinions, in the sense that they do not raise doubts in the public as to whether they are or will be impartial in the exercise of their prosecutorial functions, or that they act free from possible political influence or pressure. Otherwise public confidence in the impartiality and independence of both the public prosecutor and the prosecution service could be quickly undermined. Therefore, when publicly expressing support for a particular political option, the public prosecutor must be particularly careful and restrained, or behave in a manner expected of the most responsible citizens. Otherwise, his impartiality may be called into question and his reputation and that of the public prosecutor's office may be affected. This is all the more true in cases such as the present one, where a public prosecutor, in the course of his public prosecutorial service in the National Assembly of the Republic of Slovenia, expressed support for a particular party or political option when representing the Joint Annual Report on the Work of Public Prosecutors' Offices for 2017. The role and the venue in which the controversial statement was made give it particular weight and significance. As has been demonstrated in the present case, the statement in question is objectionable from the point of view of ensuring an objective appearance of impartiality. The position and the power attached to the status of such a responsible office as the Supreme State Prosecutor, taking into account the reaction of politicians and the media, would, in the mind of an informed and reasonable individual, cast doubt on the impartiality of both the State Prosecutor and the State Prosecution Service as a whole. Public prosecutors must be aware that the concept and meaning of the independence and impartiality of public prosecutors is not universally understood and that a lack of understanding of these principles undermines public confidence in the administration of justice, thereby jeopardising the effective functioning of the rule of law and, ultimately, the reputation of the State Prosecution Service as a whole.”

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

Mohor Fajdiga, University of Ljubljana