Report on the current situation of the Judiciary in Slovakia

Put in charge by EAJ of monitoring and evaluating the situation of Slovak Judiciary I travelled during the last months several times to Slovakia, mainly to Bratislava but to Kosice, Banska Bystrica and others as well. I had a lot of talks with judges, not only but also with acting and former functionaries of the Association of Slovak Judges (ZSS), with representatives of the Ministry of Justice , the bar and others. I also took part as reporter  in two seminaries held by organisations founded in paricular with the aim to reform the judicial system ( ZOJ, Via Juris). There I had the possibility to talk with representatives of various NGOs, members of foreign embassies in Slovakia, lawyers etc.

To understand better the current situation it is necessary to have a short look in the developements of the last years:

When Slovakia applied for membership in the European Union I investigated and assessed upon request of the European Commission the Slovak Judiciary. My assessment was a very negative one. Judiciary was totally dependent and dominated by the  Executive Power especially by the Minister of Justice. But there was  a constant improvement during the following years, in particular also because of the tough fight of ZSS, being at that time a strong and  enthusiastic association supported by a solid majority of judges. A High Judicial Council   (HJC) and local  Judicial Councils (JC) were founded with increasing competencies of  judicial self- government.

Problems arised when Stefan Harabin, a man with close political relations, became President of the Supreme Court. Due to his authoritarian style problems  with judges especially but not only of the Supreme Court came up soon. I had the occasion  to meet Mr. Harabin in Annual Meetings of ZSS where hostile contests with judges happened. But he always could count on some support especially from  judges coming from Eastern Slovakia, the region of his origin, by the way. He also tried to found an other Judges' Association, but the success rested lowly.

After parliamentary election before last Mr.Harabin became Minister of Justice. He started to transport all competencies concerning Judiciary and judges from the Ministry to HJC. That in principle is to welcome and  recognize as in accordance with international standards for judicial self-government, but, sorry to say, Mr.Harabin was and is still using this for personal purposes by utilizig all lacks in the system  in a very efficient way. For example, he dismissed seven president of courts, not being in accordance with his aims from their offices - a very critical legal possibility - and installed persons of close relationship to him. As also already mentioned in my last report Mr.Harabin succeded in influencing the elections  for the HJC to a great extent, also by distributing lists of candidates of his choice and making pressure by presidents of courts. By that  some of the presidents being installed by him also became members of HJC. After having achieved a solid majority in HJC Mr. Harabin  was elected by this organ - as sitting Minister of Justice - to President of the Supreme Court.   By that, he also became President of HJC.

Since that time Mr.Harabin is dominating the Slovak Judiciary to an extremely high degree. He is initiating  disciplinary proceedings  against  judges - among them often such not being in accordance with his interests - and is also influencing the composition of the disciplinary senats. It is not possible to assess the facts of the case in the different disciplinary proceedings in detail but some circumstances must be seen as suspect. Some judges -supended from office with reduced salaries - are waiting since years for disposal of the proceedings. Requests to set down the case for trial are not answered. Members of foreign embassies in Slovakia after having  monitored some proceedings raised in discussions with me concerns over impartiality of the members of the disciplinary senats.

A lot of judges - in particular  those from Western Slovakia (Bratislava and Banska Bystrica Region) -  have quit their  membership in  ZSS being not satisfied with the representation by the association, in relation to Mr.Harabin especially. Among them are the most former leading  functionaries of ZSS. Today only 350 judges of about 1400 are members in ZSS. In the last General Metting held on 8 April 2011 in Kosice only 50 members were present and among them only one from Bratislava and one from Banska Bystrica. That is a clear sign that today judges in Slovakia are splitted. The center of ZSS has moved from Bratislava to Kosice. A certain influence of Mr. Harabin in ZSS also is undeniable. But there are critical voices as well. It also is to stress that the acting President of ZSS is trying to do her best and strives for unification, but the situation is very difficult  one, governed by mistrust.

A number of the mentioned judges having left ZSS  have founded an "Initiatve for Open Judiciary" (ZOJ), supported by NGOs, medias and other organisations. ZOJ inter alia is striving for more transparency, in particular in connection with the recruitment and appointment of judges. It was reported repeatedly that Mr. Harabin also is dominating the composition of the selection - committees dealing with the proposal of candidates for judicial office and organized by the president of courts. It is deplored that without agreement  of.Mr. Harabin  nobody has a chance to be proposed.  By that  in a long view an undermining of the Judiciary with henchmen of Mr. Harabin is to fear. I took part in some meetings of ZOJ and must say that in the whole the organisation is following the principles always represented by EAJ and IAJ. But sometimes representatives of  NGOs and medias especially  expressed ideas  jeopardizing clearly  the independence of Judiciary under the pretext of  "emergency". It also is evident that in that way powers from outside the judiciary, for example lawyers, try to get influence. Therefore I warned judges sometimes of  "pouring out the baby with the bath".

The parliamentary election of last year   brought a total change in  Slovak government. By the way, the party which always supported Mr.Harabin and proposed him in those days for Minister of Justice did not gain to be reelected in Parliament. However, the new government do not have disposal of necessary majority in Parliament to change the Constitution , for example concerning HJC. Nevertheless, some measures were taken by the new Minister of Justice. Three members of the HJC, appointed by the former government, were recalled and replaced by others. That is in accordance with  the given legal situation.

Minister Zitnanska also motioned  two discipliray proceedings against Mr. Harabin at the Constitutional Court, one because of suspicion to have manipulated the distribution of cases by principle of coincidence. By the way, I already had confronted Mr.Harabin with this allegation within the meeting of Bjorn Sobakken, then President of IAJ, and me with him last year and he denied with a dubious argumentation. The second motion is based on Mr. Harabin's refusal  of a financial control of the Supreme Court using the same arguments for that as his predecessor  as President of the Supreme Court. Being Minister of Justice in that time

Mr. Harabin did not accept these arguments and initiated a disciplinary proceeding. Both proceedings are pending. It is unknown whether  or when the Constitutional Court will decide.

The Minister also has stopped the appointment of 120 candidates proposed for judicial office and ordered a transparent competition with other applicants. Among the proposed persons were inter alia the son of Mr.Harabin not yet having finished his law studies at that time.

The permanent  answer of Mr.Harabin being confronted with allegations is that these are only lies, sometimes personal revenge and he is only acting in the interest of Judiciary. It should not be remained unmentioned that in 1994 - Mr. Harabin was at that time judge in the Supreme Court -  a conversation between him and a well-known Kosovo-Albanian drogdealer, who was residing in Slovakia,  was wiretapped by prosecution office.(I am in possession of a transcript.) The content of the conversation does not give evidence of any malversation, but shows a good relation between the two persons.

In front of this background the government has presented an Amendment of the Law on Judges which already has passed the  parliament and will become effictive on 1st May 2011. Against this amendment there is a request for support  by ZSS filed in a letter of 25 February 2011 to the President of EAJ. The letter was distributed  to the members of the concerned Working Group of EAJ. The problem will be delt withing the coming Meeting of EAJ in Malta.

I can only report that Gerhard Reissner, President of IAJ, and I took part in the already mentioned General Meeting of ZSS which took place in Kosice on 8 April 2011. Within the meeting Mr. Harabin criticized the mentioned amendment using more or less accurately the same arguments as in the letter of ZSS. Besides that he attacked the also present Minister of Justice with hard words, called her a liar, alleged her to abuse her office and presented himself as defender of the independence of the Judiciary. Ms. Zitnanská answered in a reserved manner not reacting on his attacks.

President Reissner  stressed that international standards in any case strictly must be respected.  He gave his opinion that his first analysis of the amendment seem to be a step backwards and behind international standards. He announced that EAJ will carefully observe the development and take the necessary measures. I underlined this standpoint and emphasized that in case of abuse of existing legal possibilities first of all  all given legal measures must be taken to stop such an abuse and try to avoid that in future.   Furthermore I asserted Mr.Harabin that our statements have to be seen as representation of principles and in no way as a support for him personally.

On 19 April 2011 I had a talk under four  eyes with Minister Zitnanská in her office in Bratislava. I underlined again our concerns over the diminution of participation of the judicial power within the recruitment for judicial office although understanding the current prolems.She stressed her striving for transparency and explained her intention to set up lists containing not only judges  but also persons belonging to law faculties, bar, NGOs etc.  These lists shall be public for everybody. The presidents of the  courts shall form from the lists selection - committees  for candidates. The selection procedure also shall be public. The proposal for appointment in any case will remain in the competence of HJC.

Absolutely for no reason are in the opinion of Ms. Zitnanská   the complaints against the new regulations concerning the Judicial Academy, because thereby only the possibility would be created to take  part also in other training institutions  by getting leave of absence. Until now for that privat holydays have to be used.

I assured to mention her opinion in my report. We agreed to continue our consultations also in future.

Dana Bystrianska, President of ZSS, has announced to join the Meeting of EAJ in Malta and to present a report. That, without doubt, will also be important for the decisions of EAJ. In my opinion should EAJ give support to ZSS as far as possible but must avoid all what could be seen as support of the current situation under the domination of Mr.Harabin.

Pécs, 23rd April 2011

Günter Woratsch

Hon.President of IAJ

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