Conference - „Together for effective and more reliable judiciary“

Position CCJE - judges review

 

 

 

 

CCJE-BU(2014)4

Strasbourg, 1 July 2014

 

BUREAU OF THE CONSULTATIVE COUNCIL

OF EUROPEAN JUDGES

(CCJE-BU)

 

COMMENT

on certain provisions of the

Constitutional Act of 4 June 2014

amending and supplementing the Constitution of the Slovak Republic

 

Document prepared by the Bureau

of the Consultative Council of European Judges

 

INTRODUCTION:

The Slovak member of the Consultative Council of European Judges (CCJE) informed the CCJE in a letter dated 11 June 2014 about a Constitutional Act on amending and supplementing the Constitution of the Slovak Republic, which had been adopted on 4 June 2014. She considered that these amendments infringe fundamental principles regarding the status of judges and their independence. We understand that these concerns are also shared by the Plenary Assembly of the Supreme Court of the Slovak Republic and by the European Association of Judges. The Slovak member of the CCJE claims that politicians had announced that a “radical cleaning of the Slovak Judiciary” should take place.  The amendments order that all judges will have to undergo a “security reliability clearance”, which will be based on information gathered by police and by the National Security Office. She asks the CCJE for its opinion on whether this amendment of the constitution is in accordance with the international standards concerning the functioning of the judiciary in a democratic state.

Position of the judges of the Slovak Republic to the June 4, 2104 amendment of the Slovak Constitution

4. Update

(14.7.2014)

Position of the judges of the Slovak Republic to the June 4, 2104 amendment of the Slovak Constitution

On June 4, 2014 the National Council of the Slovak Republic approved an amendment to the Slovak Constitution. This amendment introduces the possibility to recall judges from their office by means other than a valid convicting judgement or a decision by the disciplinary panel.

Pursuant to Article 147 part 1 of the Constitution: “The President of the Slovak Republic shall also recall a judge from office if the Judicial Council of the Slovak Republic shall propose so; shall the judge fail to meet the prerequisites of the judge´s eligibility that guarantee proper execution of the office based on a valid resolution of the Judicial Council of the Slovak Republic pursuant to Article 154d, part 1 or based on a valid ruling by the Constitutional Court that has dismissed the complaint pursuant to Article 154d, part 2.”

Pursuant to Article 154d, part 1 of the Slovak Constitution: The prerequisites for a judge´s eligibility that guarantee proper performance of the office also apply to judges appointed to office before September 1, 2014. Pursuant to the first sentence, the position on the eligibility of judges appointed to the office before September 2014 is taken through a resolution of  the Judicial Council, based on the documents collected by the state bodies securing the protection of confidential information and the judge´s statement. The details of the decision-making processes of the Judicial Council whether the prerequisites for the judge´s eligibility that guarantee proper execution of the office were fulfilled, including the form in which the judge may make a statement regarding the documents shall be established by law.“

The implementing bills to the amended Constitution (that have not yet been passed) propose that the documentation requested by the Slovak Judicial Council shall be collected by the National Security Office (hereinafter only the “NSO“), based on the clearance of individual judges by the Police Corps, Slovak Intelligence Service or the Military Intelligence Service, along with information from other state bodies, legal entities and natural persons.

Open Letter to the President of the Association of Slovak Judges

Dear Mrs. President,

In connection with the nomination of the candidates to the position of the Chairman of the Supreme Court of the Slovak Republic you today on 28 April 2014 inter alia stated for the TA3 television programme that the Association of Slovak Judges supports the candidacy of Stefan Harabin who although has not 100% support  of the judges, but still he is supported by a significant majority of the judges. Your full statement can be heard in:

http://www.ta3.com/clanok/1039302/borec-na-post-sefa-najvyssieho-sudu-nominoval-janu-bajankovu.html

We oppose this statement. You as the President of the Association of Slovak Judges have the mandate to speak only for the members of your Association and not for all judges, that means also not even for us, moreover in such a significant question. We presented very real arguments for which we state that Stefan Harabin does not fulfill minimum moral criteria for performance of the supreme judicial position.

We ask you what factually qualifies you to such statements which we perceive as misleading the public.

According to our information even the common members of the Association of Slovak Judges have not approved by majority of votes the Association of Slovak Judges to nominate Stefan Harabin to this position. The public does not differentiate between promoting and supporting a candidate, and the public sees your statement as the wish of the judges organised in the Association of Slovak Judges  to elect Stefan Harabin again. However, this is the internal case of the members of your professional organisation.

More, you provide incorrect information about number of your members. For instance only in Bratislava section of the Association of Slovak Judges you register  as your members those judges who for a longer time resigned their membership for the Association of Slovak Judges, who left for pension, you even register a deceased judge. It would be correct to respect the notices of the judges, to whom you keep sending mail as to the Association of Slovak Judges members, about such failures and to state real number of your members.

Many judges who are today the members of the association “For Open Judiciary“ long ago belonged to the long-time  and very active members  of the Association of Slovak Judges. They invested many efforts and much time at the expense of their privacy, to build the Association of Slovak Judges as a strong professional organisation and a representative of significant majority of Slovak judges. After 2006, when the presidency period of Juraj Majchrak the President of the Association of Slovak Judges  finished, the Association of Slovak Judges started a completely different way and also your statement of today is a devaluation of the values for which we pushed for together. Therefore we feel a moral obligation to publicly distinguish from this also in this form.

Done at Bratislava 28 April 2014

JUDr. Katarina Javorcikova

President of ZOJ

ZOJ Declaration on Current Situation in Judiciary

The Conference of the organisation Judges „For Open Judiciary“ held in Bratislava on 21 March 2014 after evaluating the current situation in judiciary adopted this position:

 

Judges negatively view the procedure in which serious legislative modifications related to judicial power based on motions of the Parliament Members directly in the Parliament are adopted whereby the judges in this procedure are excluded. The proposed motions relate to all key laws and provisions of the Slovak Constitution that were adopted by the end of the 90-ties, after long-lasting and complicated negotiations among the representatives of judges, the Government and the Parliament, and that fulfilled the requirements for integration of Slovakia with the European Union. These legislative provisions were based on European standards and on the independence of judicial power and they should be fully respected also today.

 

Unacceptable are mainly the efforts establishing the security checks and providing a possibility to remove judges from their positions in a way other than regular disciplinary or criminal procedures. Motions of the Parliament Members do not make it clear why current way of creating the Judicial Council is not satisfactory and why it is necessary to modify its creation in a way that give the Slovak Government and the Slovak Parliament stronger powers. It is not possible to find out real effects to efficiency and confidence of the Slovak Courts. We find positive only the proposed separation of the positions of the President of the Slovak Supreme Court and the Chairman of the Slovak Judicial Council. We therefore invite the Members of the Slovak Parliament not to continue the legislative procedure without any regular expert discussion and to enable mainly the judges to comment these serious modifications within a regular consultation procedure.

 

It is surprising that the Slovak Judicial Council has not adopted any position to these efforts of the legislative and executive powers, where judges and the public rightfully expect that this should be the main body to guarantee the independence of the judicial power. Judicial Boards are also inactive though they are the bodies of the Court self-administration.

 

We will inform the international judicial associations about current situation and we will ask them to monitor the Slovak Republic how the fundamental criteria and conditions for a democratic country with rule of law are maintained.

 

Done at Bratislava 21 March 2014

 

JUDr. Katarina Javorcikova

ZOJ President

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