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Slovakia to lose its Special CourtConstitutional Court rules against independent anti-corruption body; justice minister welcomes judgement; diplomats express disappointment
25 May 2009 Beata Balogová Politics & Society
Slovakia's Special Court, which was set up to tackle high-level state corruption and organised crime and which has sentenced one former mayor to five years for receiving bribes, a football referee for three years over corruption, put the boss of the eastern Slovak underworld behind bars for the rest of his life, and heard the case of the acid-bath gang – as its name suggests, one of the country’s most brutal criminal affairs – will cease to exist.
Slovakia’s Constitutional Court ruled on May 20 that the Special Court was not established in line with the country’s constitution. At the same time, the court said that verdicts issued by the Special Court should remain valid.
The verdict, which will in effect result in the Special Court’s dissolution, marks the culmination of the efforts of a group of 46 ruling coalition deputies, mostly members of Vladimír Mečiar’s Movement for a Democratic Slovakia (HZDS). They argued that the introduction of an extraordinary judiciary – the Special Court’s judges are independent of and paid differently to the rest of the judiciary – violates the principles of the separation of powers and judicial independence and argued that when the court was established there was no acute public interest or emergency situation.
Slovak Justice Minister Štefan Harabín welcomed the ruling, calling the Special Court a “media bubble for over half a billion crowns”. By contrast, his predecessor, Daniel Lipšic, said that decent people will not celebrate the dissolution of the court. While all said they accepted the ruling, lawyers, foreign diplomats and opposition parties have also expressed concerns. There are also doubts about whether the sentences of the criminals convicted by the Special Court will now hold if they demand retrials of their cases.
The Slovak Parliament approved the establishment of the Special Court in October 2003, defining its start date as September 2004. The court’s operations actual got under way in July 2005. In February 2008, the HZDS-led group of MPs lodged its challenge to the establishment of the Special Court with the Constitutional Court.
The challenge to the court’s existence has attracted international attention and has been closely observed by diplomats.
“Of course, I respect the ruling of the Constitutional Court,” British Ambassador to Slovakia Michael Roberts told The Slovak Spectator. “However, the outcome of this case risks doing serious damage to the reputation of the Slovak judicial system.”
According to Roberts, the Special Court was set up, just a few years ago, to deal with real and particular concerns about corruption and serious crime here in Slovakia.
“The reasons for those concerns have not gone away,” said Roberts. “So, following the Constitutional Court’s ruling, foreign investors and Slovakia’s partners in the EU will be watching closely to see that mechanisms and procedures remain in place to ensure that the important work of the Special Court in bringing the perpetrators of corruption and serious crime to justice can continue, and that those mechanisms and procedures are effective.”
As for what the British ambassador means by “reputational damage”, he explained: “I mean that if the perception grows that the Slovak courts are unable to deal effectively with cases of corruption and serious crime brought before them, and if those individuals who commit corruption and serious crime are able to get away without being brought to justice, then there will be reputational damage.”
The US Department of State’s 2008 Human Rights Report, released on February 25, 2009, referred to the MPs’ campaign.
“While we respect fully the decision of the Slovak Constitutional Court, we were very disappointed that Slovakia has apparently lost an important institution in a fight against corruption and organized crime with today’s decision,” US embassy spokesman Ed Kemp said in a memo sent to The Slovak Spectator on May 20.
The plenum of the Constitutional Court ruled by seven votes to six that the Special Court displays certain elements typical for courts with specialised court agenda but also some characteristics of an extraordinary court body, reads the official media release of the court.
Such a “hybrid” character and the court’s ambiguous inclusion in the system of courts in Slovakia contradicts the constitution, “because it violates the principle of legal certainty implied in the concept of a material legal state, when the legal status of the courts of the Special Court is questioned by the option of the National Security Office (NBÚ) to withdraw the certificate of security clearance at any time,” according to the release. By such a withdrawal, the NBÚ can end the employment of a judge in the court without clear and predictable rules, the court said.
According to the court, the Special Court was created in a way which interferes with the separation of executive and judicial power to the advantage of the executive power, by which it violates the principles of the democratic state, particularly the guarantees of judges’ independence.
NBÚ security clearance is mandatory for Special Court judges. Radoslav Procházka, who represented those opposing the dissolution of the court in the legal process, said he did not see a single relevant reason why it would not be enough simply to cancel compulsory security screening for Special Court judges and he thinks that such a reason does not exist.
Procházka said it cannot be ruled out that some people sentenced by the Special Court will demand to have their cases reopened and added that the possibility that they will be successful cannot be excluded.
The court also upheld the complaint that the compensation of the judges of the Special Court is disproportionate with its aim. However, in another part of the verdict the court ruled that the establishment of the Office of the Special Prosecutor does not interfere with the constitution.
“We are glad that professional arguments weighed in,” said the spokesman of the Justice Ministry, Michal Jurči, suggesting that the ministry will modify the relevant legislation in line with the verdict of the court.
Justice Minister Harabin has opposed the existence of the court since its inception.
“I have been saying for all that time that it is a wage-related discrimination against other judges and the [security] clearances are unambiguously at odds with the principle of the independence of the judiciary,” Harabin said, as quoted by the SITA newswire.
However, back in 2007 the cabinet of Prime Minister Robert Fico rejected a proposal by Harabin aimed at dissolving the court.
“The Constitutional Court made a decision; it is not good and it is unpleasant for us because we will have a lot of work to secure it but it is the Constitutional Court and I respect the decision,” said Prime Minister Robert Fico, according to SITA.
On May 21, Fico said that the Special Court has its place in the system of courts. He went on to say that there might be options to amend the constitution in such a way that the Special Court could be inserted into the system of courts as an extraordinary court, or that a new constitutional law could be passed to deal with the establishment of the court, according to SITA.
The president of Special Court, Michal Truban, does not share Harabin’s enthusiasm about the verdict. Truban said that he absolutely did not expect such a ruling and it is bad news for Slovakia.
During its operation the Special Court received 587 complaints and a total of 993 people were charged with crimes. The court issued 415 verdicts, of which 8 were life sentences.
Ondrej Dostál of the Conservative Institute, a centre-right think tank, said that the Constitutional Court’s ruling will certainly please the mafia and corrupt politicians.
“I am certain that by this move conditions are worsening for more effective action by the state against the most serious forms of organised crime and corruption and further crimes committed by public officials,” Dostál told The Slovak Spectator. “I see it as a step back to somewhere in the 1990s, when state bodies were unable to proceed promptly enough against these occurrences and when the political leadership of the state was making the impression that it was not interested in prompt action.”
Dostál expects that people who have already been sentenced by the Special Court could try to benefit from the ruling.
“Though the Constitutional Court claims that its verdict will not impact the previously issued verdicts [by the Special Court] I have no doubt that those sentenced will try to use the decision of the Constitutional Court to their advantage and question its verdicts,” Dostál said. “By the way, in this issue I see the standpoint of the Constitutional Court as contradictory: on the one hand it considers the anti-constitutional nature of the law which created the court to be so serious that it is impossible to achieve a correction by modifying it, and that it is necessary to cancel the court. But on the other hand, it claims that the decisions of the Special Court, which was according to the Constitutional Court unconstitutional by its very establishment, cannot be questioned.”
Michaela Stanková contributed to this report
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