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Secret vote, clearances survive veto
14 Jul 2014 Michaela Terenzani - Stanková Politics & Society
THE JUDICIAL Council will go back to secret balloting and security clearances will be compulsory for all of Slovakia’s judges now that parliament has overruled the veto of President Andrej Kiska and re-passed the law on judges. The law, which includes these controversial provisions, will now become effective without the president’s signature.
Secret balloting in the Judicial Council is not the only judiciary issue dividing the president and the majority of the ruling Smer party in parliament. In early July, Kiska rejected five of the six candidates that parliament elected for the three vacant chairs of the Constitutional Court before his term started, saying that their professional qualities were not sufficient for such work. He appointed only Judge Jana Baricová, and asked parliament to elect four new candidates for the remaining two chairs.
Kiska wants open vote
The amendment to the law on judges was first passed by parliament on June 24, specifying certain details of the broader judicial reform that Smer passed in a constitutional amendment with support from the opposition Christian Democratic Movement (KDH). The law will become effective this September.
The amended law introduces a secret ballot, which will apply to all personnel-related votes of the Judicial Council, such as the selection and dismissal of judges, the Supreme Court chair and vice-chairs, the Judicial Council vice-chairs and members and chairs of disciplinary committees.
When Kiska vetoed the law, he suggested that MPs reconsider their decision to make the public voting in the Judicial Council secret, arguing that a public and transparent decision-making process in the council is what Slovakia needs given the current state of the judiciary in the country.
MPs of the ruling Smer party argued that the secret ballot is more democratic.
“If an official is elected in an open vote, they may misuse their knowledge of who voted for and who voted against,” said Smer MP Boris Susko, as quoted by the TASR newswire.
Opposition MPs on the other hand agreed with the president. Former justice minister Lucia Žitňanská of the Most-Híd caucus said that secret balloting on personnel issues in the council has nothing to do with democratic principles, and added that transparency would contribute to improving the state of Slovakia’s judiciary, TASR reported. Another former justice minister, Daniel Lipšic of the NOVA movement, said that secret balloting allows for manipulation and corruption, TASR wrote.
Clearances still an issue
The new law’s most controversial provision, however, is the introduction of mandatory across-the-board security screenings that candidates for judicial posts and already appointed judges will have to pass to become eligible for the job. The Judicial Council will have a say over whether judges meet the conditions for performing their job based on documents provided by the National Security Office (NBÚ), Slovakia’s vetting authority.
The NBÚ, which is controlled by Smer, will look into the judges’ property conditions and check for corrupt behaviour, links with the underworld and abuses of narcotic substances, the Sme daily reported.
The decisions of the Judicial Council can be appealed at the Constitutional Court. SDKÚ deputy Ľudovít Kaník stepped into the game by proposing that the country’s president should have the last say in the appointment of judges.
Opposition MPs, local and international judiciary transparency watchdogs, as well as judges themselves, object to the clearances and continue to voice their concerns even after the law was passed.
Resistance to security clearances has united the otherwise divided community of judges in Slovakia. More than 600 of Slovakia’s approximately 1,400 judges have supported an initiative of the Bratislava Regional Court judges, who have argued against the clearances.
“By passing this constitutional amendment, the government violated its programme statement,” said Katarína Javorčíková, the head of the For Open Judiciary (ZOJ) association, which sheltered the initiative, as quoted by TASR, adding that judges must now defend themselves when their independence is under attack.
“We do not believe that this is the way to increase trustworthiness: to use intelligence services with secret sources and witnesses for the surveillance of judges,” said the president of the Association of Judges of Slovakia, Dana Bystrianska, as quoted by TASR.
As for international concerns, most recently, the Council of Europe’s body concerning the independence, competence, and impartiality of judges, the Consultative Council of European Judges (CCJE), opined that the clearances might constitute a breach of international standards.
“The CCJE, in its statement, states that international standards will be breached if the conditions will be widened by adding the possibility to recall judges from their post if they are evaluated as not fulfilling the prerequisites of judges’ competency,” Slovakia’s representative in the CCJE, Alena Poláčková, who requested the organisation’s opinion, told a July 8 press conference, as quoted by TASR.
The CCJE deems the stable term of a judge to be the main element of a judge’s independence, meaning that the only reason for a judge to be recalled, apart from health reasons or reaching a certain age, is a sentence in a penal or disciplinary procedure.
Not even the fact that the Judicial Council is supposed to evaluate the clearances secures an impartial process, since the council “is not a judicial body and definitely not politically independent”, Poláčková said, as quoted by TASR.
The CCJE also expressed concerns about the gathering of documentation from secret services for the purposes of the clearances of judges.
“We all know that the secret services have their own very specific ways of gathering information, which are absolutely non-transparent,” Poláčková said, adding that the CCJE believes this would put pressure on the judiciary and violate the principle of the presumption of innocence.
“These clearances will impact the division of power in the state,” Poláčková further stated, as quoted by TASR. “A democratic state is characterised by the fact that there is an equal division of power between the executive, the legislative and the judiciary. As soon as the executive is put in a position from which it controls the judiciary, we are no longer talking about a democratic state, but rather a police state.”
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