Open Letter

Dear President,

Dear Prime Minister,

Dear Chairman of the National Council,

Dear Minister of Justice,

Dear Members of the Judicial Council,


We hereby wish to turn to You, the constitutional authorities primary responsible for proper and legal performance of the judicial power in the Slovak Republic.

A Judge according to the Constitution is a person who should provide for and guarantee judicial protection by independent performance of his/her appointment. However, independence of a Judge requires that the state in reasoned cases secures his/her protection. If a Judge is in a situation that his/her position of a Judge is unreasonably in risk and no state authority grants him/her any protection, and also his/her independent position comes to an end. A Judge is responsible for proper performance of his/her appointment in conditions created for his/her work by the state, and also state authorities are responsible for any consequence in the case they have not granted  needed protection to the Judge.

For a longer time there are several cases presented in public in which disciplinary procedure is held against some Judges that by real reasons seem to be instruments for their removal from performing their judicial power or at least for threats and mobbing. These are for instance disciplinary procedures against the Judges Anna Benešová, Darina Kuchtová, Milan Ružička, Róbert Urban. Other continue with the same denominator – critics against Štefan Harabin, the current Chairman of the Supreme Court and the Judicial Council, or persons close to him or persons who decide cases Štefan Harabin is interested in.


In time when Štefan Harabin was in position of the Justice Minister, disciplinary procedures were oriented against Judges of District and Regional Courts which he could cover directly or through a Chairman of such Court. Now when he is in the appointment of the Chairman of the Supreme Court, the procedures gradually start against Judges in this Court. More, they are held in a way that shows without doubts that it is a reciprocal action and personal revenge and far from objective punishment of a Judge for delinquent misconduct in his/her work. In the case of Judges of the Supreme Court it is more important to carefully and with responsibility consider conditions of their disciplinary punishment, because they present the judicial elite, mostly they are active in judiciary for many years and they deserve adequate honour. A disciplinary procedure should be the last measure, when no other forms of punishment or measures have fulfilled their purpose.

The following case is the example of full negation of these rules that should be matter of sense within the rule of law:

Juraj Majchrák, Judge of the Supreme Court for many years, with reputation of an excellent lawyer, whose countless decisions were published as rulings of the Supreme Court, who significantly participated in creation of the most important judicial laws, including the Constitution, and who was never criticised for any failure in his work, former Deputy Chairman of the Supreme Court and the President of the Association of Slovak Judges for many years, in reading daily news found that the Chairman of the Supreme Court filed a motion to start disciplinary procedure against him for delays in two criminal cases and he proposed him to be recalled from his appointment. He received such information in this form without:

 

- being officially informed that a check of fluency of procedures is made in his judicial department,

- being informed by anybody on result of the check and being given  the option to present his opinion,

- finding that in decisive time due to his burden of other mainly custody and large scale group criminal cases, whether it was objectively in his abilities to act without delay in other cases he was responsible for,

- knowing cases in which he failed,

- keeping at least elementary respectability to him and without being personally discussed the submitted disciplinary motion by the Chairman of the Court,

mainly because he was proposed the hardest punishment that would mean the end of his judicial career.

The law also guarantees persons suspected of committing a crime that they get the option to give their opinion on such suspicion and the action against them start after that. The law also guarantees persons who were testified to commit a crime that they are first punished by softer types of punishment and the strictest sanction is taken only after several recidivism or in extraordinary difficult crimes. In our conditions according to Štefan Harabin, a Judge does not have such rights. Everything is made apart of a Judge and the Judge is forced to find through administrative workers that really a motion for disciplinary action started against him or it was journalists´ fabrication. His judicial reality is such that he must continue with large difficult criminal cases with the perspective that he may anytime be recalled from his judicial appointment. All his previous work is in doubts, his existence is in risk. His independence finished. More, he is the Judge of the Supreme Court, and it is sadder and more embarrassing.

The Disciplinary Court will make final decision of guilt and penalty of a Judge, not Štefan Harabin, however, such procedure and motion for the most serious punishment is a serious threat to judicial independence. Inadequacy, severity, negation of the most basic rules of respectability and honour for the person of the Judge, bring the only conclusion that his case is a clear proof of misuse of disciplinary procedure for removing inconvenient Judges. It is a negation of the constitutional provision according to which the President of the Republic may recall a Judge from his/her position only for acts that are contrary to his/her judicial appointment. Is it by chance that the Judge Juraj Majchrák belongs to known critics of the person of Štefan Harabin?

Double meter used against Judges is significantly expressed in other real cases where for the same disciplinary failure some judges are proposed to be recalled from their position and some other disciplinary actions have not even started or they end only with symbolic punishment. More, some of them were appointed by Štefan Harabin to their positions in the state administration of the Court. Let’s remind the disciplinary procedure against the Judge Anna Benešová, who was proposed to punished in the strictest way of being recalled from her judicial position and from July 2008 she was stopped in performing her appointment. On the other hand the Judge Peter Lukáč who was found guilty for the same disciplinary failure, however, was released from punishment. Štefan Harabin appointed him to the position of the Chairman of the District Court. For the same disciplinary failure

Judge Viera Kováčová, was imposed the warning and any disciplinary procedure against Judge Monika Koščová has not even started. Is it a coincidence or reason that Anna Benešová the most suffering Judge ruled in time of her stopped position cases where Štefan Harabin was in person the party in the procedure?

Disciplinary procedures are not the only strong weapon against inconvenient Judges. Also very effective are changes in work schedule where the Judges specialised for a long term were transposed to another collegium in a day with a completely different agenda, they were not expert on and their failures are expected sooner or later. At that moment any Judge influenced by fear from his/her incapacity looses his/her independence.

Changes in work schedule of the Supreme Court made by Štefan Harabin gave reasons to five members of the Judicial Board of the Supreme Court to resign their appointments. Another signal that the situation in the Supreme Court is serious and sharp is the fact that the plenum of Judges at their August session have not elected new proposed members of the Judicial Board to replace them. This means that any change in work schedule will have to be discussed by Štefan Harabin with the whole plenum of Judges in the Supreme Court because the Judicial Board is not functioning.

In conditions of current performance of judicial power there is the situation when a Judge who from any reason is not convenient to Štefan Harabin or to any person close to him may objectively feel powerless and without protection. It is enough to summarise basic facts:

- Štefan Harabin is the Chairman of the Supreme Court and the Judicial Council and he influences these institutions through his positions,

- The Judicial Council elects Judges in Disciplinary Courts, who decide inter alia motions of Štefan Harabin who is the Chairman of the Supreme Court, for disciplinary punishment of Judges of the Supreme Court,

- The current Minister of Justice is the close co-worker and schoolmate of Štefan Harabin, and she was appointed in her position upon his motion. The Minister of Justice appoints and recalls Chairmen of District and Regional Courts who have competence to submit disciplinary motions against Judges of District and Regional Courts, more they decide many important status matters of Judges in their Court,

-
The Judicial Council does not have to give reasons for their personal decisions related to Judges, that means decisions are not transparent and gives reasonable doubts that in many cases the Judicial Council makes decisions ordered by Štefan Harabin,

- Judicial Boards are bodies comprising of Judges who in their Court are equally dependent on the person of the Chairman of such Court as the other Judges and have personal reasons for not being in conflict with him/her.

We write this Open Letter to you as a serious warning and as a request to you to deal with the above problems. The referring Judges defend and will defend. They do it in a transparent way and in public. Current situation has already exceeded the framework of particular disciplinary procedures; it became the whole society problem with international impact that is discussed in public for a long time. With no reply until now. Independence of Judges is not the right of a Judge, it is a constitutionally guaranteed right of citizens and the basis of the rule of law.

Done at Bratislava 2 September 2009

Judges:

Peter Paluda
Juraj Kliment
Milan Karabín
Elena Berthotyová
Miroslav Gavalec
Eva Hudobová
Anna Elexová
Zuzana Ďurišová
Igor Belko
Jozef Kandera
Katarína Javorčíková
Anton Jaček
Dušan Čimo
Milan Trylč
Ján Hrubala

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