The current wording of Art 326a “Abuse of law”

(1) Who, being a judge, lay judge or arbitrator on an arbitral tribunal, arbitrarily applies the law in making a decision and thereby harms or favours another, shall be punished by imprisonment for one to five years.

(2) By imprisonment for three to eight years shall be punished the perpetrator, if s/he commits the act mentioned in subsection 1

(a) towards a protected person, or

(b) driven by a specific motive.

During the legislative process regarding this criminal offence, ZOJ proposed to delete the criminal offence of abuse of law from the then-draft act amending the Criminal Code beacause of its redundancy and vagueness of its elements. In fact, the judges may be sanctioned for arbitrary decision under the existing legal framework in the disciplinary procedure for the disciplinary offence under Art 116 (2) (e) of Act on Judges and Lay Judges No. 385/2000 Coll., as well as in the criminal procedure for misuse of powers of public officials under Art 326 of the Criminal Code.

In this respect, ZOJ pointed out another anomaly. A judge may be disciplined for arbitrary decision under Art 116 (2) (e) of Act on Judges, provided that such a decision caused serious harm or other significantly aggravated consequence. However, criminal prosecution for the abuse of law under Art 326a of the Criminal Code is possible, once the judge harms or favours another. The criminal offence thus has a lower threshold of significance than a disciplinary offence. This is a serious normative disharmony and valuation contradiction within the normative framework; yet another relevant argument for deleting this controversial offence from the Criminal Code.

For the time being, the procedural protection for judges charged with the abuse of law is found in Art 27hi of Act on Judicial Council No. 185/2002 Coll., which provides that, should the Judicial Council, acting upon request from the judge charged, not grant approval to the criminal prosecution, the criminal prosecution cannot continue for the abuse of law, if the offence consists in the judge's decision-making.

The offence of abuse of law was introduced into the Criminal Code as from 1 January 2021. In practice, only one case of a judge having been convicted for this criminal offence is known, i.e. within the framework of the investigation called “Storm”, judge Miriam Repáková was convicted after a plea bargain with the prosecution. Other cases of judges having been charged with this offence along with other offences are known as well (such as judges Urbancová and Doláková), however, the Judicial Council refused to grant approval to this prosecution being continued for the offence of abuse of law. Other cases of judges charged with this offence ended up by the charges having been dropped.

The main reasons for the Judicial Council's refusals:

(a) Criminal law should not replace procedural remedies

(b) Art 326a CC being imprecise and vague

(c) Absence of extreme excess

(d) Risk of intimidation of judges (chilling effect)

Practical problems with evidence stem from the fact that the prosecution service have to prove intentional, deliberate and extreme breach of law, which is extremely difficult in practice.  During the five years from the moment when the legislation on this offence was adopted, the effective impact of this criminal offence on the decrease of level of corruption and misuse of powers by judges is negligible.

The new legislative proposal

It is being proposed that the current wording of Art 326a of the Criminal Code be amended as to substitute the words “arbitrarily applies the law and thereby harms of favour another” for the following wording:

“with the intention to harm or favour another, arbitrarily makes a decision in manifest contravention of the law, without any basis in law or consciously ignoring the wording of the legal provisions, their purpose or established case law, and the arbitrariness of such a decision has been pronounced in a final decision of a superior court or the Constitutional Court of the Slovak Republic, shall be punished by imprisonment for one to five years”.

ZOJ would like to point out that by enacting this amendment as to the elements of the offence of abuse of law, two groups of judges would be created. On the one hand, judges whose decisions may not be reviewed by a superior court or by the Constitutional Court (in particular, judges of the Supreme Court and the Supreme Administrative Court, as not always the losing party has standing before Constituional Court - e.g. a prosecutor in criminal cases). On the other hand, judges whose decisions may be reviewed by the said courts. Only the one group will be punishable for the offence of abuse of law, not the other.

Furthermore, an amendment is being proposed to the Criminal Procedural Code and the Act on Judges, in which Art 29 is altered in such a way that a criminal prosecution of a judge (for any offence) not be allowed but with the approval by the Judicial Council. The Judicial Council is supposed to deliberate in private, only the judge charged, his/her attorney and the prosecutor being present. Once the Judicial Council has refused the approval, it cannot be requested anew.

ZOJ would propose to completely delete the offence of abuse of law from the Criminal Code for the reasons, which we already expressed during the original law-making process.

Should no political will exist for this step, ZOJ would not oppose the procedural protection of judges by way of the existing approval by the Judicial Council under Art 27hi of Act on Judicial Council, nevertheless, only as regards criminal prosecution for the offence of abuse of law.

We consider it unfounded and excessively expanding the powers of the Judicial Council, when the amendment to Art 29 of Act on Judges is being proposed as to require approval by the Judicial Council for any criminal prosecution of a judge. This would include offences which do not have any connection whatsoever to the performance of judicial duties or judicial decision-making. The approval by the Judicial Council is only justified, when it aims to protect the independence of the judicial decision-making, and not when it has no connection to these functions at all and when it only creates a procedural exemption for a particular group of citizens. In addition, the impression may as well be created that judges are above the principle of equality before the law. The mechanism, as proposed, may also create a space for selective decisions – for the protection of “one's own” and the pressure on inconvenient judges.

ZOJ would like to stress that the Venice Commission have in their opinions repeatedly flagged the risk of judicial corporatism, whose main objective is to protect judges from any outer responsibility. The proposed competence of the Judicial Council to grant (or not) the approval to any criminal prosecution of judges, without listing any specific criteria which would form the basis for such decision-making, may become a very effective tool of judicial corporatism. Therefore, we strongly oppose the adoption of such a legislative framework.

in Bratislava, January 27, 2026

Association of Judges For open Judiciary

WHO WE ARE AND WHAT WE DO?

ZOJ is an informal initiative of active and emeritus judges, established in 2009 to rehabilitate the judiciary and enhance its credibility by promoting the three fundamental pillars of the rule of law, which are Transparency, Fairness and Openness.  This objective is also reflected in the name of the judicial initiative "For Open Justice (ZOJ)".

OUR CORE VALUES

Transparency - practices of courts in their decision-making, in the selection of new judges, in their career advancement, and in the evaluation of judges that are transparent and open to public scrutiny.

Fairness - ensuring fair court proceedings in accordance with the law equally for all parties and participants in court proceedings.

Openness - opening the judiciary to public scrutiny.

For more information please check here.