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Top prosecutor tug-of-war continues
3 Sep 2012 Beata Balogová Politics & Society
JOZEF Čentéš, who was elected by parliament to be Slovakia’s general prosecutor in June 2011, is still waiting to be appointed by President Ivan Gašparovič despite the Constitutional Court in late August rejecting a legal objection by his main rival. The president had insisted that he would not formally install Čentéš until the Constitutional Court had ruled on all cases associated with the selection of the top prosecutor. While Gašparovič has harvested criticism from non-governmental organizations and the current opposition parties, which picked Čentéš as their joint candidate when they ruled the country back in 2011, Prime Minister Robert Fico has said the approach of the president is legitimate.
The Constitutional Court cleared the main obstacle in Čentéš’s path to the job when on August 24 it turned down a complaint filed by former general prosecutor Dobroslav Trnka, who asserted that his right to equal access to public functions has been violated. He also argued that the results of the May 17, 2011, vote had been incorrectly tabulated and that parliament should have declared him the winner of that vote and submitted his name to the president for re-appointment. Trnka’s complaint was dismissed due to what Constitutional Court spokesperson Anna Pančurová called an “apparent illegitimacy and for having been submitted by an unauthorised person”, TASR newswire reported.
“I respect the decision of the constitutional court,” Trnka said on August 24 as quoted by SITA newswire.
Nevertheless, the decision of the Constitutional Court has not led to Čentéš’ immediate appointment. Gašparovič is now claiming that a complaint lodged by Čentéš himself should first be ruled on by the court. Paradoxically, Čentéš’ case challenges the president’s own failure to appoint him as general prosecutor.
“Since Mr. Trnka has not succeeded, there is no complaint with the Constitutional Court, which would question my election,” Čentéš said, as quoted by the Sme daily on August 25. “There is no reason to hesitate with my appointment”.
Fico said that the most important decision of the Constitutional Court pertaining to the election of the general prosecutor will be whether the president has the right or duty to appoint the candidate offered by the parliament to this post.
“It will be decisive since the proceeding of Mr. President is completely legitimate,” said Fico as quoted by SITA on August 27.
The opposition parties, the Slovak Democratic and Christian Union (SDKÚ), the Christian Democratic Movement (KDH), Most-Híd, and Freedom and Solidarity (SaS) also sought a reinterpretation of the constitution regarding the president’s duties in terms of appointing the prosecutor in a timely manner. Gašparovič’s failure to enact the will of parliament in such an appointment is unprecedented, and the constitution is not clear about what should happen in such situations.
“The fact that we need to hear this from the Constitutional Court at all suggests that there is a systemic fault,” commented the author of the opposition complaint, Radoslav Procházka of the KDH, for Sme. “I am starting to think that those whose main job it is to protect the legal state have resigned from this task”.
Čentéš has said that he is ready to withdraw his complaint to the constitutional court, suggesting that if the president moves forward the reason for his complaint would disappear.
The saga of the top prosecutor
The term of Trnka expired in February 2011, but it took until June for the parliament to finally elect his replacement, Čentéš. However, Gašparovič has so far refused to appoint Čentéš, despite a Constitutional Court ruling in October 2011 that he had been chosen using a constitutional procedure. Trnka’s former deputy, Ladislav Tichý, is currently the acting general prosecutor, with Trnka now acting as one of his senior lieutenants.
The ruling coalition had serious problems in late 2010 agreeing on a joint candidate for the position – Čentéš was their eventual choice – and then getting him elected via a secret ballot. A parliamentary vote on December 2, 2010 ended with several coalition MPs voting anonymously with the opposition, almost bringing down the government in the process.
In a ballot on May 17 2011, a re-run of the December 2 vote, Trnka, the only candidate, won the support of 70 of the 150 deputies present. A simple majority of all 150 MPs present – i.e. 76 – would have been necessary to secure his victory. By rejecting Trnka, the then ruling coalition MPs apparently heeded a threat by former prime minister Iveta Radičová to resign if Trnka, about whom she had expressed strong reservations, were to prevail.
The re-run was a secret ballot, held after the Constitutional Court ruled on April 20 that Trnka’s constitutional rights had been violated during the two 2010 votes, when deputies revealed how they had voted, by photographing their ballots or openly declaring whom they had supported. By doing so, the court found the deputies violated the basic principles of the secret ballot and thus Trnka’s rights.
The ruling coalition then went to considerable lengths to change the rules so as to make the vote by MPs public. In May 2011 parliament voted to change its own rules in order to allow a recorded vote rather than a secret ballot to be used to select the general prosecutor, but Tichý and a group of 35 Smer MPs challenged the modification.
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