Analysis of Current Situation in Slovak Judiciary

15 judges in their letter of 2 September 2009 informed the top constitutional officials  about disciplinary procedures against judges that would purposefully remove some judges from judiciary or are threatening and mobbing. Truth of the letter was confirmed by disciplinary motions against judges following published letter. Peter Paluda, Judge of the Supreme Court was suspended his judicial position because he filed a criminal motion against the Chairman of the Supreme Court. Jana Dubovcová the Judge of the District Court in Banská Bystrica was suspended her judicial position because of her critical opinions related to judiciary and to the Chairman of the Supreme Court. Both judges were proposed the strictest disciplinary punishment of removal from their judicial positions. These are similar cases as the disciplinary procedure against the Judge Darina Kuchtová for her evidence in criminal procedure, the disciplinary procedure against the Judge Anna Benešová with motion for removing her from her judicial position with suspended position because she did not allow recording at a hearing, and other cases reported in the open letter.
The existing system of Slovak judiciary enables concentration of power at the level of the supreme authorities and decisions in significant personal matters of judges the supreme representatives come to conflict of interests. According to the Constitution of the Slovak Republic the Chairman of the Supreme Courts is also the Chairman of the Judicial Council. As he as the Chairman of the Supreme Court decides to propose the Judicial Council to suspend a position of a judge of the Supreme Court, at the same time he as the Chairman of the Judicial Council co-decided about his proposal with other members of the Judicial Council and he as the Chairman of the Judicial Council signs the decision on suspended position of a judge. He is at the same time „the Petitioner and the Judge“. This conflict of interests was recently seen mainly in the case of the disciplinary procedure against Peter Paluda Judge of the Supreme Court, whose suspended position was proposed by the Chairman of the Supreme Court and the decision on suspended position was signed by him as the Chairman of the Judicial Council. More, in this case the Chairman of the Supreme Court is also a harmed person, and Peter Paluda is disciplinary prosecuted because he filed criminal motion against him.

The Judicial Council’s Chairman is the Chairman of the Supreme Court and also other members of the Judicial Council are at the same time Chairmen of Regional and District Courts. As chairmen of such courts, they are entitled to submit motions to disciplinary actions against judges; such motions are finally decided by disciplinary courts. Members of disciplinary courts are elected by the Judicial Council and this causes an absurd situation when ”the petitioner decides who will be the judge“. Conflict of interests comes also in cases when chairmen of the courts who are at the same time members of the Judicial Council submit motions to disciplinary procedure against judges and the Minister of Justice in relation to such motions suspends their judicial positions. Again the Judicial Council is the body that may annul such suspension decision of the Minister. If members of the Council are chairmen of such courts, who submitted the motion for disciplinary action, this is the same situation in which ” the petitioner is the judge“.

According to the Constitution of the Slovak Republic the President may recall a judge from his/her position only for action incompatible with judicial position. Such actions are defined in the Act on Judges and only for these strictly defined types of disciplinary failures judges should be removed from their positions. At the same time only for these actions their positions may be suspended. The Act on Judges

contains also a provision that is contrary to the Constitution and according to it a judge may be imposed a disciplinary measure of being removed from his/her position also for other less serious disciplinary failures. The judges many times informed the Minister of Justice, Chairman of the Supreme Court and Judicial Council about this conflict with the Constitution, they continue in current practice. It is upon their own will which of the disciplinary motions they evaluate serious and when they suspend any judicial position. This results in cases of disciplinary action against judges whose acts are incompatible with judicial position such as disabled recording of court hearing, filed criminal motion, critics of top representatives of judiciary and delays in procedure, without any evidence whether these were caused by judges subjectively or objectively due to his/her work overload. Conclusion that situation contrary to Constitution is suitable for our top representatives of Slovak judiciary seems to be verified and they use it against uncomfortable judges and also as an effective threat against other judges.

Current system of general judiciary repeatedly persuades us, that no body has real will or interest to grant judges effective protection in reasoned cases. The top judicial authorities due to their personal relations clearly decide in one line, and this causes the situation when the basic rights of judges to their defence are refused. This happened in many cases when a disciplinary motion was submitted against judges without having chance to give their opinion on accusations and checks in their judicial department. In the case of the disciplinary action against the Judge Peter Paluda, this came to the situation that he received the decision on his suspended judicial position and he has not received motion on started disciplinary action and he has not had any chance to defend himself at the meeting of the Judicial Council the suspension decision was taken, even if this is defined in the Association Rules of the Judicial Council.

The Judicial Council does not give reasons in decisions on personal affairs of judges; decisions are not reviewable and they are not transparent. Objectively this creates areas for the will of the Council and also authorised critics due to which many lost their confidence in the Judicial Council. Only authorised bodies can consider with responsibility that it is the time to use the legal option to recall current members of the Judicial Council whom they elected or appointed and that it is time to review the composition of the Judicial Council to renew its authority and confidence.

Judicial boards are bodies comprising of judges who at their Court are dependent on the Chairman of the Court who is by position dependent on the Minister of Justice. As the other judges also they are in significant personal matters dependent on decisions of the Judicial Council. Members of the judicial boards have personal reasons not to be in conflict with judicial officers, they lose their independence and objectiveness in decisions if their judges ask them for help.

The strongest professional organisation the Association of Slovak Judges in their Statute declares that it protects interests of their members and judiciary and protects judicial independence, however; its activities in recent years do not fulfil this main goal and task. It does not give opinions to any urgent problems, does not provide the judges needed protection and is fully passive. Several undersigned judges who currently are still members of this professional organisation consider ending and terminating their membership.

The society rightfully expects that the judges quickly and efficiently protect their rights and recovery of such rights. According to decisions of the European Court for Human Rights it is the internal obligation of the Slovak Republic to organise judiciary to enable the Courts to secure right to legal procedure in adequate time. Currently competent authorities in the country insufficiently create conditions for quick, good quality and expert performance of judicial position, mainly from view of adequate number of cases assigned to a judge. Big differences continue in work load of particular Courts and also of particular judges at the same Court. No criteria were adopted to evaluate the work of judges, overload conditions of a Court and of a judge and to see when they objectively are not able to decide assigned cases without delay. Performance of a judicial position with growing number of cases in a Court department brings high probability of failures, mistakes and insufficiencies in work of judges. This is used as an effective instrument against incompatible judges for imposing intentionally disciplinary sanctions. The law does not protect specialisation of judges and that is why there are often cases where a judge who for many years specialised in some type of law for instance civil law, by a measure of a chairman of his/her Court by work division was without his/her approval transferred to other type of agenda, for instance administrative law. He/she is forced to decide cases he/she is not specialised in, and the law does not guarantee him/her the right to adequate time of expert training in new type of work. Alarming is that such transfers are made in appeal Courts that grant final decisions in cases. This breaches not only the right of a judge to adequate expert training but also the right of the party of the Court procedure that a competent and expert court decides his/her case. Such changes in work division are also effective instruments for mobbing of uncomfortable judges because there is real expectation that a judge who is not specialised in new agenda would make failures and would not be able to decide in adequate time.

Authority of judges and respect to the Courts in the Slovak Republic is very low and has decreasing tendency. In public it is said that in some procedures decisions of the Court are not dependent on the scope of procedure and results of evidence, but on the party of the procedure. There court decisions discussed in public where the top state officials were granted inadequately high compensation for no-property loss in cases of protection of personality, mainly in comparison with granted compensation for serious health impairment or death of a related person. Can a judge be objectively independent deciding a dispute where the Minister of Justice or the Chairman of the Judicial Council is ne of the parties, and the judge knows that such party has all legal means to quickly terminate his/her judicial carrier?

Publicly are discussed family relations in selection procedures for free judicial positions, also positions of higher court officials and candidate judges, we hear about ”pre-defined selection procedures” for proceeding a judge to a higher instance Court. Respect and honour of Courts is lacking in dehonesting evaluations of judges in words of the top representatives of judiciary who publicly speak about  “lazy judges” with no relevant evidence and argument or when judges who have courage to criticise relations in judiciary are marked ”those who do politics and do nothing”. In relation to medialised information related to judiciary judges for a long time criticise also the press monitoring processed by the Ministry of Justice where there are almost exclusively reports that are not critical to current top Court officials.

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