ZOJ Position on the EAJ Resolution of 4 September 2011

Wider version:
The Resolution is based on incorrect information on current legislative changes in Slovak judiciary:

- The selection committees are elected so that 2 members are nominated by the Minister of Justice – that means the executive power, 2 members by the Judicial Council of the Slovak Republic and the judicial councils – that means the judicial power, and one member is nominated by the Parliament – that means the legislative power. That why the ratio 2:2:1 is balanced. However, the Resolution is based on untrue fact that the majority of members of the selection committees are appointed by the Minister of Justice. More, the appointment of judges and their promotion are in final phase in competence of the Judicial Council that comprises from the nominees of the Government, the President and the judges.

 

- Disciplinary procedures: The Resolution in connection with disciplinary proceedings does not capture the logic of the development of the legal regulation that tends to strengthen constitutionality and also judicial independence. Evidence of this is mainly the new definition of the institute of temporary suspension of judicial position of a disciplinary prosecuted judge, as one the most significant impacts on judicial independence. Before the amended Act on Judges (applicable from 1 May 2011) it was practically possible to temporary suspend judicial position also of a judge who was disciplinary prosecuted for an action other than incompatible with his judicial position (action for which a judge can be removed from his judicial function by the President of the Republic). Now this is not possible.
Before the controversial amendment independence of a disciplinary court and also independence of a disciplinary prosecuted judge was limited by the fact that such temporary suspension was not decided by this court but by the Minister of Justice and by the Judicial Council. More, one party of a disciplinary proceedings (for instance the Judicial Council as the petitioner) could, contrary to the constitutional principle of equality of the parties of the court proceedings, to temporary suspend judicial position of the other party (a disciplinary prosecuted judge), and also to decide his motion on repealing such suspension. Today this is not possible anymore. Only a disciplinary court may temporary suspend a judicial position.

- The Resolution is not true stating that the power to initiate disciplinary proceedings against a judge was placed exclusively from the Judicial Council of the Slovak Republic at the Minister of Justice. The Minister had this power already from the establishment of the Slovak Republic in 1992. Also after recent amendments this power has the minister and also the ombudsman, the judicial councils and the court presidents. The balance of the powers is maintained.

- Unjustified criticism of the judicial power: the judicial power as the other powers in the state can be publicly criticised. The judges lawfully refuse criticism unfounded and defamatory that should not be presented mainly by the representatives of the legislative and executive powers. We agree with the Resolution that abstaining from such practices is the most efficient way how to increase confidence in the judicial power. Judges themselves have to care first of all for increasing confidence in the judiciary, by increasing their self-reflection not only to unjustified criticism but mainly to factual and justified criticism.

Shorter version for media:
The EAJ Resolution of 4 September 2011 is based on incorrect information on current legislative changes in the Slovak judiciary. Mainly on untrue fact on composition of selection committees for appointment and promotion of judges, and in connection with competence which authority today may initiate disciplinary proceedings against judges. Such distorted information was probably given to EAJ by the Association of Slovak Judges, and the Association should correct it.

Done at Bratislava 3 October 2011

JUDr. Katarina Javorcikova
Initiative Spokeswoman

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