Application to Council of Europe

COUR EUROPÉENNE DES DROITS DE L’HOMME
EUROPEAN COURT OF HUMAN RIGHTS
EURÓPSKY SÚD PRE ĽUDSKÉ PRÁVA

Conseil de l’Europe - Council of Europe
Strasbourg, France

Rada Európy
Štrasburg, Francúzsko

REQUÊTE
APPLICATION
SŤAŽNOSŤ

 

 

présentée en application de l’article 34 de la Convention européenne des Droits de l’Homme,
ainsi que des articles 45 et 47 du Règlement de la Cour
under Article 34 of the European Convention on Human Rights
and Rules 45 and 47 of the Rules of Court

v zmysle článku 34 Európskeho dohovoru o ľudských právach
a článkov 45 a 47 Rokovacieho poriadku Súdu

 

IMPORTANT: La présente requête est un document juridique et peut affecter vos droits et obligations.
This application is a formal legal document and may affect your rights and obligations.
DÔLEŽITÉ: Táto sťažnosť je právny dokument a môže ovplyvniť Vaše práva a záväzky.

 

I - LES PARTIES

THE PARTIES

A. LE REQUÉRANT/LA REQUERANTE
THE APPLICANT
(Renseignements à fournir concernant le requérant/la requérante et son/sa représentant(e) éventuel(le))
(Fill in the following details of the applicant and the representative, if any)

1a. Nom de famille      GAVALEC 2a. Prénom (s)   Miroslav
Sexe: masculin/féminin
3a. Nationalité    Slovaquie   4a. Profession        juge de la Cour Suprême

5. Date et lieu de naissance       
Date and place of birth

6. Domicile
Permanent address

7. Tel. Číslo                       
8. Adresse actuelle (si différente de 6.)                              Elle n´est pas différente

9. Nom et prénom du/de la représentant(e)                       Les parties ne sont pas représentées parce que numeros 10. de 13. sont non rempli / en blanche

10. Profession du/de la représentant(e)

11. Adresse du/de la représentant(e)………………………………………………………………………..

12. Tel. Číslo …………………………………………. Číslo faxu…………………………………………

B. LA HAUTE PARTIE CONTRACTANTE
THE HIGH CONTRACTING PARTY
(Indiquer ci-après le nom de l’Etat/des Etats contre le(s)quel(s) la requête est dirigée)
(Fill in the name of the State(s) against which the application is directed)

13.                        la Slovaquie

1 Si le/la requérant(e) est représenté(e), joindre une procuration signée par le/la requérant(e) en faveur du/de la représentant(e).
A form of authority signed by the applicant should be submitted if a representative is appointed.


A. LE REQUÉRANT/LA REQUERANTE
THE APPLICANT
(Renseignements à fournir concernant le requérant/la requérante et son/sa représentant(e) éventuel(le))
(Fill in the following details of the applicant and the representative, if any)

1b. Nom de famille      ĎURIŠOVÁ 2b. Prénom (s)  Zuzana

Sexe: masculin/féminin

3. Nationalité     Slovaquie    4. Profession   juge de la Cour Supreme
Nationality Occupation

5. Date et lieu de naissance       
Date and place of birth

6. Domicile                                
Permanent address

7. Tel. Číslo                       

8. Adresse actuelle (si différente de 6.)   Elle n´est pas différente

9. Nom et prénom du/de la représentant(e)   Les parties ne sont pas représentées parce que numeros 10. de 13. sont non rempli / en blanche

10. Profession du/de la représentant(e)

11. Adresse du/de la représentant(e)………………………………………………………………………..

12. Tel. Číslo …………………………………………. Číslo faxu…………………………………………

B. LA HAUTE PARTIE CONTRACTANTE
THE HIGH CONTRACTING PARTY
(Indiquer ci-après le nom de l’Etat/des Etats contre le(s)quel(s) la requête est dirigée)
(Fill in the name of the State(s) against which the application is directed)

13.    la Slovaquie

1 Si le/la requérant(e) est représenté(e), joindre une procuration signée par le/la requérant(e) en faveur du/de la représentant(e).
A form of authority signed by the applicant should be submitted if a representative is appointed.


A. LE REQUÉRANT/LA REQUERANTE
THE APPLICANT
(Renseignements à fournir concernant le requérant/la requérante et son/sa représentant(e) éventuel(le))
(Fill in the following details of the applicant and the representative, if any)

1c. Nom de famille  BERTHOTYOVÁ 2c. Prénom (s)    Elena

Sexe: masculin/féminin
Sex: male/female

3c. Nationalité   Slovaquie 4c. Profession    juge de la Cour Suprême

5. Date et lieu de naissance       
Date and place of birth

6. Domicile                               
Permanent address

7. Tel. Číslo                       
8. Adresse actuelle (si différente de 6.)   Elle n´est pas différente

9. Nom et prénom du/de la représentant(e)    Les parties ne sont pas représentées parce que numeros 10. de 13. sont non rempli / en blanche

10. Profession du/de la représentant(e)

11. Adresse du/de la représentant(e)………………………………………………………………………..

12. Tel. Číslo …………………………………………. Číslo faxu…………………………………………

B. LA HAUTE PARTIE CONTRACTANTE
THE HIGH CONTRACTING PARTY
(Indiquer ci-après le nom de l’Etat/des Etats contre le(s)quel(s) la requête est dirigée)
(Fill in the name of the State(s) against which the application is directed)

13.     la Slovaquie

1 Si le/la requérant(e) est représenté(e), joindre une procuration signée par le/la requérant(e) en faveur du/de la représentant(e).
A form of authority signed by the applicant should be submitted if a representative is appointed.


A. LE REQUÉRANT/LA REQUERANTE
THE APPLICANT
(Renseignements à fournir concernant le requérant/la requérante et son/sa représentant(e) éventuel(le))
(Fill in the following details of the applicant and the representative, if any)

1d. Nom de famille      PALUDA 2d. Prénom (s)   Peter

Sexe: masculin/féminin
Sex: male/female

3d. Nationalité             Slovaquie                            4d. Profession        juge de la Cour Suprême
Nationality Occupation

5. Date et lieu de naissance       

6. Domicile                       
7. Tel. Číslo                       

8. Adresse actuelle (si différente de 6.)  Elle n´est pas différente
Present address (if different from 6.)

9. Nom et prénom du/de la représentant(e) Les parties ne sont pas représentées parce que numeros 10. de 13. sont non rempli / en blanche

10. Profession du/de la représentant(e)

11. Adresse du/de la représentant(e)………………………………………………………………………..

12. Tel. Číslo …………………………………………. Číslo faxu…………………………………………

B. LA HAUTE PARTIE CONTRACTANTE
THE HIGH CONTRACTING PARTY
(Indiquer ci-après le nom de l’Etat/des Etats contre le(s)quel(s) la requête est dirigée)
(Fill in the name of the State(s) against which the application is directed)

13.     la Slovaquie

1 Si le/la requérant(e) est représenté(e), joindre une procuration signée par le/la requérant(e) en faveur du/de la représentant(e).
A form of authority signed by the applicant should be submitted if a representative is appointed.



14.

A) – INTRODUCTION:


On 18 August 2009 the Applicants filed to the Constitutional Court of the Slovak Republic a constitutional petition of 13 August 2009 (hereinafter referred to as the “Constitutional petition“) in which they requested to prove legitimacy and legality of the procedure of appointment of Stefan Harabin to the post of the President of the Supreme Court of the Slovak Republic.

The Applicants in their Constitutional petition stressed mainly the fact that in time of voting of the Judicial Council of the Slovak Republic on candidacy of the President of the Court, Stefan Harabin´s judicial office was suspended because at that time he held the position of the Minister of Justice. As the Government Member he was in “top political position in the executive“, and from this reason he might have and he had direct impact to seven members of the Judicial Council who elected him later. More, in time of the election of the President of the Supreme Court of the Slovak Republic, the Judicial Council did not correspond to the constitutional attributes of independence of judicial power and the Judicial Council has not taken any steps to overcome plausibly the suspicion of the pre-defined election of Stefan Harabin to the position of the President of the Supreme Court of the Slovak Republic, despite the fact that part of the public invited them to defeat such suspicion.

The Applicants in their Constitutional petition concentrated mainly to the basic argument, that the unlawful and illegitimate appointment of Stefan Harabin to the position of the President of the Supreme Court of the Slovak Republic poses risk to independence of their judicial office by possible illegitimate interference in the management and administration of the Supreme Court by Stefan Harabin.

In drafting the Constitutional petition the Applicants have not missed out the fact that the Committee of Ministers of the Council of Europe on 13 October 1994 adopted the Recommendation R (94) 12 on independence, efficiency and role of judges to secure implementation of Article 6 of the European Convention on Protection of Human Rights and Fundamental Freedoms and United Nations basic principles related to independence of judiciary, endorsed by the United Nations General Assembly in November 1985. Also the Slovak Republic as one of the member states of the Council of Europe should not only declare but also in reality follow the basic principles of a functioning democratic society among which independence of judiciary, right to fair trial and respected fundamental human rights and freedoms definitely belong.

That is why, the Applicants expected that after submitting the Constitutional petition immediate interventions of the President Harabin will follow against their persons, they asked in their Constitutional petition the Constitutional Court to grant a preliminary ruling that means that the Constitutional Court of the Slovak Republic

1. suspends implementation
a. of the complained Decision of the Judicial Council of the Slovak Republic No. 584 of 22 June 2009 and also
b. the Decision of the President of the Slovak Republic of 23 June 2009 to appoint Stefan Harabin to the position of the President of the Supreme Court of the Slovak Republic,

and also

2. imposes Stefan Harabin to stop to carry out his position of the President of the Supreme Court of the Slovak Republic.

As the Applicants mentioned above, according to their opinion, if Stefan Harabin remains in his position of the President of the Supreme Court of the Slovak Republic, it would doubt the Slovak Republic as a democratic state with the rule of law. Continued performance of the position of the President of the Supreme Court of the Slovak Republic by Stefan Harabin in reality confirms that this means for the Applicants referring to the rule of proportionality a loss higher than the loss that may be suffered by Stefan Harabin if complained acts were suspended. The ruling proposed by the Applicants to suspend implementation does not seem to be contrary to any significant public interest; on the contrary, it was and still is in public interest to grant the proposed preliminary ruling.

B) – Real impacts of pending petition of the Applicants for a preliminary ruling


The Applicants based their request for granting a preliminary ruling on significance of the stated facts and mainly the fact that Stefan Harabin in his position disputes the Slovak Republic as a democratic state with the rule of law and also doubts the basis of the fundamental human right of an individual (guaranteed in Article 46 and the following of the Constitution of the Slovak Republic) for judicial protection of his rights that should be in relation to a really endangered right be implemented by a judicial authority with adequately speed, to prevent acts of possible misuse of this public position (the so-called derivative acts) against possible opponents.

More, suspended position of the President of the Supreme Court of the Slovak Republic was in reality enabled by the fact that the position of the vice president of the court was occupied and in time until election of Stefan Harabin (8 months), that means in the case of not occupied position of the President of the Supreme Court of the Slovak Republic, this position was without any problems carried out by the vice president of the Supreme Court. That is why the Applicants state, that the Constitutional Court of the Slovak Republic did not follow the content of the constitutional right to judicial protection and the Court has not granted the Applicants in adequate time expeditious protection to their rights by not granting decision to their petition for a preliminary ruling and according to their opinion it has not done so until today.

The below list of actions of President Harabin gives concrete form to and confirms concerns of the Applicants that unlawful and illegitimate appointment of Stefan Harabin to the position of the President of the Supreme Court of the Slovak Republic really endangers independence of their judicial office with no exemption, that

- the Applicant Judge Paluda was on 8 September 2009 in relation to the motion of the President of the Supreme Court of the Slovak Republic was temporarily forbidden (preliminary suspended) his judicial office at the Supreme Court with forbidden entry to the Supreme Court and decreased wage to 50 % of the original amount and this restriction with all consequences, despite repeated request of Judge Paluda (November and again December 2009) continues until now; more, in September 2009 President Harabin gave order not to pay the remuneration for life jubilee of Judge Paluda because he considered it unethical to grant remuneration to a judge who received high wages for several years,
- the Applicants Judge Berthotyova and Judge Gavalec were despite their disapproval, upon motion of the President of the Supreme Court of the Slovak Republic, disqualified as of 1 October 2009 of their agenda (Judge Berthotyova partially) and they were transferred despite their disapproval (Judge Gavalec to a complete different court agenda, Judge Berthotyova to partially different court agenda) and more the Applicant Berthotyova was without any reason moved to another (smaller) room, and also some other judges expressing disapproval with actions of President Harabin. Despite the objections of Judge Berthotyova against infringed provisions of the Act on Judges and the Constitution of the Slovak Republic, to create area for the parties of the procedure, who may object breach of their right not to be removed of their legal judge guaranteed by the Constitution of the Slovak Republic and not following the rule of allocation of the agenda by electronic register, her objections were not complied and by measure of the President of the Supreme Court of the Slovak Republic she was given 30 cases of the unsuccessful contra-candidate of the President Harabin,
- the Applicant Judge Durisova was first upon motion of the President of the Supreme Court of the Slovak Republic unreasonably removed from the senate of higher level and she was included from 1 October 2009 to the senate of lower level and this senate also received all pending files of another judge who retired and moreover, despite her disapproval, from 1 January 2010 she should be transferred from agenda of the Commercial Collegium of the Supreme Court of the Slovak Republic to the Administrative Collegium of this Court.
- more, the President Harabin, one week after his appointment in the position of the President of the Supreme Court of the Slovak Republic, withdrew remunerations of all Applicants, despite the fact that he allowed payment of remunerations for extraordinary results reached by timely, properly and fluently held and decided cases including fulfilment of an especially significant task above the range of judicial obligations to majority of judges, even if the remunerations were granted to them by previous management and later after 2 months he orally explained it the Council of Judges of the Supreme Court with reasons that those were judges with above standard incomes or judges with insufficient efficiency, expertise and speed of decision making. He continued in this disappreciating activity also at the end of 2009.
- He continues to refuse requests of the Applicants for training abroad and he did not allow Judge Gavalec who is the member of the EU Forum of Judges for the Environment (EUFJE) and the member of the Tax Law Advisory Group of Judges to participate in several foreign training events, and also he did not enable Judge Berthotyova who is the member of the International Association of Refugee Law Judges (IARLJ) participation at the national asylum seminar with many years tradition, where she every year without claiming any remuneration informed workers of the Migration Office of the Ministry of Interior of the Slovak Republic about decisions of the Supreme Court in asylum cases.
- Also after the Petition was filed, the Applicants continuously face wrongful criticism of President Harabin against them, as they are included in the group of less efficient and slow judges who are criticised by him for political and other ambitions. Also in connection with the filed Constitutional Petition the President Harabin publicly marked the Applicants as professionally incapable.

All the above derivative actions clearly confirm the opinion of the Applicants that President Harabin from his appointment to the position has not performed his position of the President towards the Applicants objectively and he has not followed the same conditions for their equal rights and obligations, defined in § 42 (2) b) of the Act 757/2004 Coll. on Courts. These are all the consequences that according to the opinion of the Applicants could not occur unless the Constitutional Court of the Slovak Republic decided in time their petition for a preliminary ruling.

C) – Criticised Inactivity of the Constitutional Court of the Slovak Republic:


The Constitutional Court of the Slovak Republic after it received the Constitutional Petition has not immediately informed the Applicants about the constitutional judges who were authorised to decide their Constitutional Petition, though, due to judicial positions performed by the Applicants, it was possible to expect that some of the constitutional judges might have been prejudiced against the Applicants. Only from daily press (of 24 August 2009) the Applicants learned the information that the “Petition was received on 18 August 2009 and it was granted to the judge reporter,“ confirmed by Lubica Mackovicova, Director of the Office of the President of the Constitutional Court of the Slovak Republic. The judge will deal with the petition not sooner than at the beginning of September, currently the judges are on holiday.“

The above press release clearly showed the Applicants that the Constitutional Court has not intended to deal with their Petition expediously according to proposals and arguments of the Applicants and despite the urgent content of the proposed preliminary measure and more the Court did not publish the names of the judge reporter and Senate members who would deal with the petition.

The Applicants state that in direct connection to the inactivity of the Constitutional Court of the Slovak Republic Stefan Harabin inbetween used his powers related to his position of the President of the Supreme Court of the Slovak Republic against the Applicants and he interfered their judicial rights by several derivative actions (described in part B) – Concrete impacts of undecided petition) and also their positions of a legal judges.

Inactivity of the Constitutional Court of the Slovak Republic in the case of the proposed preliminary ruling of the Applicants is so big, that only upon request of the legal attorney of the Applicants to the Senate; they were informed about the composition of the Senate.

After received answer through their legal attorney they immediately appealed the prejudice of two Senate members of the Constitutional Court of the Slovak Republic, the case was granted to, due to reasons of their known close and friendly relations with Stefan Harabin. The Constitutional Court has not provided the Applicants with any other information in their case until now.

III. STATEMENT OF ALLEGED VIOLATION(S) OF THE CONVENTION AND/OR PROTOCOLS AND OF RELEVANT ARGUMENTS


(See § 19(c) of the Notes)

15.

The Applicants complained infringement of Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “Convention“) related to their right to hearing of their petition by the Constitutional Court of the Slovak Republic in the case of preliminary ruling (requested suspended implementation of the decision of the public power authority) with the purpose to prevent derivative actions of the President of the Supreme Court of the Slovak Republic against the Applicants in adequate time and infringement of Article 13 of the Convention because in the situation when the domestic court has not decided their petition to preliminary (interim) ruling they were not given any effective means of remedy of such situation.

A) Article 6 (1) of the Convention


In the time of the Petition submitted to the European Court for Human Rights the period of 135 days has passed from submitted Constitutional Petition, i.e. from 18 August 2009 till 31 December 2009. This period according to the opinion of the Applicants many times exceeded the tolerable level of adequate time of a court procedure in their case.

According to Article 6 (1) of the Convention – in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The Applicants are aware of the fact that the basis of a hearing before a domestic court related to their Constitutional Petition is their application for receiving court protection of a special right that is

a) right of a citizen to an independent judge and at the same time
b) right of a judge to performance of his office undisturbed by any state power authority, mainly the executive power represented in this case by the President of the Supreme Court of the Slovak Republic,

for the purpose of defence of judicial decision making power where the shared denominator of the above rights is the protection of independence and impartiality of judicial power.

The Applicants are also aware of the fact that the above right does not fully corresponds to the term defined in Article 6 (1) of the Convention as a “civil right and obligation or any criminal charge“, however the European Court of Human Rights (hereinafter referred to as the “Court“) already in the case Neigel v. France (Judgment of 17 March 1997) stated that only in the case of selection procedure, graduation and termination of a public post (similarly case Pellegrin) it is not possible to appeal effects of Article 6 (1) of the Convention. Also in the case Kudeshkina v. Russia (Application 29492/05) the Court stated that also the judge in performing her judicial position has the fundamental rights defined in the Convention belonging to an individual (in such case it was the right to freedom of expression as defined in Article 10 of the Convention). That is why referring to the above case of the Court the Applicants assume that they have the full rights as defined in Article 6 (1) of the Convention.

The Applicants mainly pointed out not that they were not granted legal protection to their petition for a preliminary ruling in time, with unnecessary delays as defined in Article 6 (1) of the Convention. Regarding the speed of granted legal protection and unreasoned delays there is the existing case law of the Court, for instance in the judgment Kakamoukas and others v. Greece (Application 38311/02) of 22 June 2006 confirmed by the judgment of the Grand Chamber of 15 February 2008. In those judgments the Court stressed that the adequacy of the duration of court proceedings must be evaluated by conditions of any case and observed criteria defined by the Court in the case law (mainly Comingersoll S.A. v. Portugal – Application 35382/97 and Fradlender v. France – Application 30979/96). The above criteria are mainly complications in the case, behaviour of the parties and respective authorities and what the parties ask for in the procedure.

In relation to first two criteria above the Applicants state that their request for a preliminary ruling cannot be qualified as a complicated one and by their behaviour they have not given any reason to the Constitutional Court of the Slovak Republic not to decide their petition immediately. Also the Applicants assume that their petition for a preliminary ruling was sufficiently argumented and reasoned. On the contrary, the content of the declaration of the spokesman of the Constitutional Court of the Slovak Republic of 18 August 2009 clearly confirmed the conclusion of the Applicants that in that time judges preferred their right to rest (holidays) before the request of the Applicants to immediately grant a preliminary ruling urgently asked by the Applicants.

The Court in the case-law (such as Caillot v. France - Application 36932/97 of 4 June 1999) permanently states that it is up to the Convention States what way they will settle their legal system to arrange their courts to secure in adequate time the right to final decision on civil rights and obligations. The Court also stressed that a worker who assumes that he was unlawfully suspended or dismissed by his employer, has a serious personal interest to expedious court decision on legality of such judgment if an employment dispute by its nature requires a speedy decision because of the nature of the application of the infringed person who through refusals looses his means of existence (Judgment Obermeier v. Austria of 28 June 1990 and Judgment Caleffi v. Italy of 24 May 1991). In relation to this the Applicants point out that in their Constitutional Petition they sufficiently argumented their serious personal interest in granting the preliminary ruling and that was why they legitimely expected a speedy decision.

In relation to the above criterion, that means what the parties require in the procedure, the Applicants stress mainly the immediate nature of their petition for a preliminary ruling. By this interim measure the Applicants wished to reach court secured provisional legal state that would for the provisional time stabilise the relations of the Applicants and the President of the Supreme Court of the Slovak Republic during the proceedings granting them the court protection by the Constitutional Court of the Slovak Republic and also to build an effective barrier against negative activities of the President of the Supreme Court of the Slovak Republic, this threat became the basis of their application. The fact that the above goal has never been reached is proved by the demonstrative list of derivative actions of the President of the Supreme Court of contained in part II B).

Here the Applicants also point out that many legal instruments of the Council of Europe stressed the interest of the member states in granting a speedy, that means effective legal protection through various types of preliminary (interim) court measures. Mainly within the meaning of Article IV of the Principles of the Recommendation (89)8 of the Committee of Ministers of the Council of Europe that defines provisional court protection granted in administrative matters (adopted by the Committee of Ministers on 13 September 1989 in accordance with Article 15b of the Statute of the Council of Europe at the 428th meeting of the Ministers´ Deputies including the representative of the Slovak Republic) it is expressly stressed that: “the court decides a preliminary (provisional) measure immediately.“.

Speedy decision on a preliminary ruling of a domestic court is the basis of the right of any individual to a fair and timely protection of his infringed rights.

This Measure also is based on the basic premise (paragraph 3 of the preamble) that the immediate performance of administrative actions that were later modified or their modification are considered, could under some circumstances infringe interests of persons irreparably in a way which, for the sake of fairness, should be avoided as far as possible. At the same time the Measure stresses general principles for protection of an individual in relation to administrative acts defined in Resolution (77)31 of the Committee of Ministers and principles related to administrative consideration contained in Recommendation (80)2 of the Committee of Ministers of the Council of Europe.

According to the opinion of the Applicants the content of this Recommendation may refer to their situation where they ask the Constitutional Court of the Slovak Republic for effective and provisional court protection in form of suspended implementation of the above decisions of the state power authorities, that means to

1. suspend implementation:
c. of the above decision of the Judicial Council of the Slovak Republic 584 of 22 June 2009 and also
d. of the decision of the President of the Slovak Republic of 23 June 2009 on appointment of Stefan Harabin to the position of the President of the Supreme Court of the Slovak Republic,

and also to

2. impose Stefan Harabin to stop to carry out his position of the President of the Supreme Court of the Slovak Republic.


More in the procedure of adopting this Recommendation the representative of the Slovak Republic pleaded to accept it without reserve on the contrary to the representative of Denmark who using Article 10.2.c of the Rules of Procedure for the meetings of the Committee of Ministers kept the right of her government to conform it.

Similar nature is contained in domestic provisions (§ 52 (2) of the Act 38/1993 Coll. on Organisation of the Constitutional Court of the Slovak Republic) according to which “the Constitutional Court may upon a motion of a petitioner decide a preliminary ruling and suspend effect of an appealed valid decision, measure or other impact unless contrary to a significant public interest and performance of an appealed decision, measure or other impact would mean higher loss for the petitioner that can be caused to other persons in the case of suspended effect; mainly it imposes to the authority to provisionally stop implementation of a legally valid decision, measure or other impact and imposes third persons to provisionally stop to implement their right granted to them by a legally valid decision, measure or other impact.“

As the Applicants showed above, for them it is clear that the main purpose of the court preliminary ruling in form of permitted suspended effect is a provisional removal (preservation) of power or authorisation granted to the addressee of the appealed decision of a public power authority with the purpose of secured elimination potential loss – legal problems that may be created in relation to active use of effects (legal application) of this decision. Reaching this purpose does not follow for the case of confirmed appealed decision, on the contrary, for the possible (in other words already from the beginning of the procedure hardly excluded) case of its abolition. Than it is totally logical the sooner decision suspending the effect of the appealed decision is granted, in accordance with the principle of speedy court proceeding, the sooner will be the situation effective for court decision (above mentioned nature of preliminary ruling in form of immediate decision) reached and on the contrary it will effectively prevent many derivative actions of a person the court protection is sought for against.

According to the Applicants the basic obligation of the court and of a judge is to secure this procedure in the court procedure that would as soon as possible enable to reach the above situation. More the Constitutional Court of the Slovak Republic must constantly observe the special nature of legal protection if an applicant for legal protection asks a preliminary (provisional) ruling. Though the Constitutional Court of the Slovak Republic does not belong to the structure of general courts, this court is part of the domestic court protection of the rights of individuals. The Applicants understand this that also the Constitutional Court of the Slovak Republic must take care in each period of procedure that the court protection granted by the court to an individual is speedy and effective.

The Act 38/1993 Coll. on Organisation of the Constitutional Court of the Slovak Republic, does not clearly define the Constitutional Court of the Slovak Republic to act speedy in each period of its procedure, this obligation of the Constitutional Court and the Judges results from the domestic law, that means § 6 of the Civil Court Procedure in connection with § 31a of the Act 38/1993 Coll. and Article 48 (2) of the Constitution of the Slovak Republic and also Article 6(1) of the Convention.

The fact that the Constitutional Court of the Slovak Republic understands significance of the institute of a preliminary ruling and related necessity of speedy decisions in the case of filed motion for a preliminary ruling that according to paragraph 3 of the above provision has provisional nature and secures only conditions for reaching a real decision is proved by the following case-law.

For instance during the proceedings in the case II. US 5/03 submitted in 2003 against Stefan Harabin, the Constitutional Court of the Slovak Republic in the case of a motion delivered on 13 January 2003 to suspend effect of the decision of the Judicial Council of the Slovak Republic 74 of 20 December 2002 (on approved proposal to the President of the Slovak Republic to appoint the successful candidate Stefan Harabin to the position of the President of the Supreme Court of the Slovak Republic, the court granted the decision on 15 January 2003, that means within 3 days.

Also in decision of the case I. US 223/09 submitted in 2009 by another applicant in the case of the right of court and other protection (operation of a landfill) the Constitutional Court of the Slovak Republic in the case of proposed preliminary ruling of 12 August 2009 (Wednesday) granted the decision on 17 August 2009 (Monday), that means the court decided within 3 business days.

Especially in the first case II. US 5/2003 the unsuccessful contra candidate of Stefan Harabin to the position of the President of the Supreme Court of the Slovak Republic appealed infringement of his fundamental right to access to elected and other public positions under equal conditions by decision of the Judicial Council of the Slovak Republic of 20 December 2003, the Constitutional Court of the Slovak Republic stated in reasons of the approval of the requested suspended effect of the appealed decision mainly this:

“Suspended effect is reasoned by significant public interest, the Constitutional Court sees it in the fact that the procedure of the Judicial Council of the Slovak Republic in proposing a candidate to the position of the President of the Supreme Court of the Slovak Republic must be released from any doubts that it is in accordance with the Constitution...“

Similarly also the Constitutional Court of the Czech Republic in decision on suspended effect where the applicant is a judge or a person responsible for the court management, decides very speedily. For instance in deciding the motion of Iva Brozova, President of the Supreme Court of the Czech Republic submitted on 8 February 2006 (PL 18/2006), the Constitutional Court of the Czech Republic decided on suspended effect of the decision of the President of the Republic to recall the above person from the position of the President of the Supreme Court the next day, i.e. on 9 February 2006. The Constitutional Court of the Czech Republic decided also immediately about another motion of the above President requiring suspended effect of 9 March 2006 (PL 17/2006) and also her motion of 22 November 2006 (PL 87/2006) requesting suspended effect of the decision of the President of the Republic to appoint the second vice president, the Constitutional Court of the Czech Republic also decided immediately. The Applicants wish in connection to their Constitutional Petition mainly to stress that in the last proceedings of the Constitutional Court of the Czech Republic, i. e. PL 17/2006 and PL 87/2006, the applicant claimed that the position of the vice president of the Supreme Court was occupied by a person with political history, that means vice prime minister of the government and the candidate for the position of the President of the Republic and in their decisions the Constitutional Court considered it as relevant reasons that made the court to comfort the application of the petitioner.

Basic reasons, close argumentation and similarity of these cases and the case of the Applicants are very close. Active legitimacy of the Applicants is based on their positions of judges of the Supreme Court of the Slovak Republic and their special relation with the President of that court. In the case such relation terminates by derivative actions through the Constitutional petition of the related person, their argumentation would definitely decrease (in this case the Applicants point out mainly the recent steps the Stefan Harabin against the Applicant, Judge Paluda, that resulted in submitted disciplinary motion with the request to dismiss him from his office and a transparent, evident threat of possible consequences of such steps).

According to the above facts the Applicants came to the opinion that the Constitutional Court of the Slovak Republic does not act legally and in a constitution-conforming way, the court delays its decision and this creates for the Applicants

a legally unbearable situation

- where on one hand Stefan Harabin has sufficient time to implement legally irrevocable actions derived from the doubted position of a President and
- on the other hand by passing time efficiency of the goal required by the Applicants is decreased because on background of performed position of the President of the Court by Stefan Harabin an image is created that their efforts are now fully useless (result of the dispute is transferred from real to the so-called academic level),

and such action (or not-action) of the Constitutional Court of the Slovak Republic disables efficient court protection of current position of the Applicants.

B) Article 13 of the Convention

According to Article 13 of the Convention everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a domestic authority notwithstanding that the violation has been committed by persons acting in an official capacity.

The Applicants coming from the nature of a preliminary ruling point out that the Constitutional Court of the Slovak Republic had to immediately decide suspended implementation of the appealed decisions of the public power authorities. If the court has not done so, the Applicants in such situation should have disposed with an efficient domestic instrument to remedy such situation. However, Slovak legal order does not offer such possibility to the Applicants in their situation despite the obligation accepted by the Slovak Republic in accordance with Article 13 of the Convention.

The procedure rules of the Constitutional Court of the Slovak Republic are defined in the Act 38/1993 Coll. on Organisation of Constitutional Court of the Slovak Republic. The above act contrary to the procedure before general courts (mainly the right of an individual to file a motion) does not offer explicitly any appeal instrument, or any instrument to remove inactivity of the Constitutional Court of the Slovak Republic.

According to Article 127 of the Constitution of the Slovak Republic the Constitutional Court of the Slovak Republic decides motions of natural persons and legal entities in the case they appeal infringement of their fundamental rights or freedoms or human rights and fundamental freedoms defined in an international treaty the Slovak Republic ratified and that was declared in a way defined by law unless other court decides protection of such rights and freedoms.

If the Constitutional Court of the Slovak Republic complies a motion, in the decision the court states that a legally valid decision, measure or other impact infringed rights or freedoms as defined in paragraph 1 and repeals such decision, measure or impact.

If infringement of rights or freedoms as defined in paragraph 1 was caused by inactivity, the Constitutional Court may return the case back to further procedure, prohibit continued infringement of fundamental rights or freedoms or human rights and fundamental freedoms arising of an international treaty the Slovak Republic ratified and that was declared in a way defined by law, or if possible, it orders a person who infringed the rights or freedoms as defined in paragraph 1, to renew the state before infringement (Article 127 (2) of the Constitution).

Under paragraph 3 of the above Article the Constitutional Court may by a decision complying the motion, grant to a person whose rights were infringed as defined in paragraph 1 an adequate financial satisfaction.

The only possible legal instrument to speed a decision of the Constitutional Court is defined in § 26 of the Act 38/1993 Coll.

Pursuant to § 26 of the Act 38/1993 Coll. in hearing motions the Constitutional Court of the Slovak Republic does not have to follow the order of the arrived cases, if it considers the case urgent.

This provision defines the power of the Constitutional Court of the Slovak Republic to prefer some motions before others, however, this is not the case (motion for a preliminary ruling is by its basis pre-defined to speedy decision). That is why the Applicants rightfully assume that before the Constitutional Court of the Slovak Republic they have no means for remedy against inactivity of the Constitutional Court other than to file a motion to the European Court for Human Rights according to Article 13 of the Convention (similar to the decision Sürmeli v. Germany).

Request for adequate satisfaction

Pursuant to Article 41 of the Convention the following applies, if the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

A. Moral Loss

The Applicants above pointed out some interferences of the Supreme Court President Harabin against them, causing them moral loss or continuing also today and interfering performance of their judicial office at the Supreme Court:

- against Judge Paluda, the Applicant, on 8 September 2009, upon motion of the President of the Supreme Court of the Slovak Republic a disciplinary action started and in connection to such action he was temporarily suspended his right to perform his judicial office in concrete cases, that means he was released of the possibility to be a legal judge, not for mistake in his position of a judge – in performing judiciary, but for his statement published in newspapers, and then in a form of a criminal notice. The provisional prohibition of performance of his judicial office resulted in prohibited entry to the workplace and decreased wage to 50 % of the original amount and this restriction with all consequences continues in various modifications until now, the consequences are in form of not possibility to ask for remuneration, not to participate in foreign and national educational training, not to participate in selection procedure for the post of a chairman of a senate, meetings of Criminal Law Collegium, he is member of, and other impacts to his unwithdrawable judicial rights. The President of the Supreme Court mentions  Judge Paluda and his claims like an unfair, lazy judge with unethical claims. Such action caused to the Applicant Paluda significant moral loss and his judicial professionality was unsubstantially decreased, such consequences could be avoided provided the Constitutional Court of the Slovak Republic has decided on suspended effect in time.

- The Applicants Judge Berthotyova and Judge Gavalec despite their disapproval, upon motion of the President of the Supreme Court of the Slovak Republic, disqualified as of 1 October 2009 of their agenda and they were transferred despite their disapproval (Judge Gavalec to a complete different court agenda, Judge Berthotyova partially different court agenda) and more the Applicant Berthotyova was unreasonably moved to another room, and also some other judges expressing disapproval with actions of President Harabin. In July 2009 the President withdraw remunerations of both judges and also he did not grant them their final year remunerations proposed by the Council of Judges. In relation to this action the President of the Supreme Court spoke about Judge Berthotyova and Judge Gavalec to be judges with insufficient performance, expertise and speed of decision, he also has not approved their requests for participation in national and also foreign seminars. The Applicants Berthotyova and Gavalec suffered significant moral loss and their judicial professionality was unreasonably decreased, such consequences could be avoided provided the Constitutional Court of the Slovak Republic has decided on suspended effect in time.

- the Applicant Judge Durisova was first upon motion of the President of the Supreme Court of the Slovak Republic removed from a higher level senate and she was included from 1 October 2009 in a lower level senate and this senate also received all pending files of another judge who retired and more despite her disapproval, from 1 January 2010 she should be transferred from the Commercial Collegium of the Supreme Court of the Slovak Republic to the Administrative Collegium of this Court. Similarly also President Harabin in July 2009 withdrew remuneration of Judge Durisova and he did not grant her the proposed final year remuneration in usual amount. The President of the Supreme Court said about Judge Durisova and about her claims that she is ineffective and she makes mistakes in her decisions. The Applicant Durisova suffered a significant moral loss and her judicial professionality was unreasonably decreased, such consequences could be avoided provided the Constitutional Court of the Slovak Republic has decided on suspended effect in time.

B. Moral Satisfaction

Upon the above facts, the Applicants assume that inactivity of the Constitutional Court of the Slovak Republic enabled Harabin, the President of the Supreme Court of the Slovak Republic in a serious way due to his post and contrary to domestic law and principles applicable for judicial management (provisions of § 42 (2) b) of the Act 757/2004 Coll. on Courts) to intervene the proprietary and also non-proprietary rights of the Applicants.

Despite the fact that the Applicants suffered the above identifiable loss, the Applicants do not ask the Court to order the Slovak Republic to pay such loss in favour of the Applicants, because such compensation would be born fully by the tax payers. It will be a moral victory of the Applicants if the Court acknowledges the claims of the Applicants against inactivity of the Constitutional Court of the Slovak Republic as reasoned. Upon the above, the Applicants do not ask compensation of any non-proprietary loss.

Compensation of costs for this procedure will be identified by the Applicants upon order of the Court only after they know their real amount.

Request for preferential procedure of the case before the Court


According to the Rule 41 of the Rules of Court the cases are dealt in the order as prepared for dealing. The Chamber or its President may however, decide to give priority to a particular application.

The Applicants above reasoned why they assume that continued inactivity of the Constitutional Court of the Slovak Republic in relation to their petition for an interim (provisional) ruling infringes their right to dealing with the case without useless delays.

Only secured speedy dealing of the application by the Court is a necessary prerequisite for urgent remedy of unwanted situation of the Applicants at the national level (derivative actions of the President of the Supreme Court of the Slovak Republic create reasoned threat that the President will continue at least in the same range).

That is why the Applicants propose that if the Court comes to the conclusion that the Convention was infringed

admits priority of the case

pursuant to Rule 41 of the Rules of Court.

IV. STATEMENT RELATIVE TO ARTICLE 35 § 1 OF THE CONVENTION


16. Final decision (date, court or authority and nature of decision)

The Applicants assume that due the nature of the infringed right (unreasoned delays) the 6 months period defined by the Convention does not refer to them. Also in this case, due to the nature of the required decision (suspended effect of a decision of a public power authority) that should have been decided immediately, it is not possible to consider necessity of exhausting all remedies.

More, the Act 38/1993 Coll. on Organisation of the Constitutional Court of the Slovak Republic, does not define any remedy instrument or any instrument to remove inactivity of the Constitutional Court of the Slovak Republic. The only instrument to speed a meritorious decision, that means not any procedural decision, is the power of the Constitutional Court of the Slovak Republic defined in § 26 of the Act 38/1993 Coll. to give priority to some motions before others.

Pursuant to § 26 of the Act 38/1993 Coll. in dealing motions the Constitutional Court does not have to follow the order motions came to the court if a case related to any motion is considered urgent.

The application is against inactivity of the Constitutional Court of the Slovak Republic because no real decision was made in time in the case of their petition of the Applicants for a preliminary ruling.


17. Other decisions (list in chronological order, giving date, court or authority and nature of decision for each of them)

The application is against inactivity of the Constitutional Court of the Slovak Republic because no real decision was made in time in the case of their petition of the Applicants for a preliminary ruling.


18. Is there or was there any other appeal or other remedy available to you which you have not used? If so, explain why you have not used it.

No, see answer above.



V. STATEMENT OF THE OBJECT OF THE APPLICATION


19.

The Applicants wish that the Court upon the above facts and legal conclusions grants this judgment:

The right of the Applicants as defined in Article 6 (1) of the Convention was infringed.
The Slovak Republic is bound within three months to pay the costs of the procedure in amount that will be specified to the Applicants later.



VI. STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS


20.

This case has not been submitted to any other institutions.

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  • Guest

    excellent article. But I need more written

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