BACK IN 2009, then supreme court president Štefan Harabin changed the composition of a Supreme Court senate which looked into complaints against the decisions of ministries and state offices. The Constitutional Court recently ruled that his decision violated the right of railway freight carrier Cargo to a randomly selected judge, the Sme daily reported, suggesting that the senate’s rulings are now vulnerable to further challenges.

Back in March, the Trend weekly reported on a similar case involving the Supreme Court’s decision from December 2013 on a record fine that six construction firms have to pay for operating as a cartel, in a move the daily called “widely unprecedented in the judiciary”. The political ethics watchdog Fair-Play Alliance (FPA) considers changes made to the senate assigned to the case of Cargo and the fines for construction companies serious enough to demand disciplinary proceedings against Harabin. The FPA turned to Ombudswoman Jana Dubovcová and Justice Minister Tomáš Borec, who are entitled to file for such action. According to Sme, Dubovcová has already requested the opinion of the Supreme Court, while Borec does not see room for the punishment, suggesting through his spokeswoman that, given that the statute was barred, this issue is irrelevant.

Nevertheless, the FPA claims that Harabin’s disciplinary transgression involves not only the changes he made to the senate, but also the fact that he has not made any corrections.

“The refusal to carry out the correction of the illegal condition is an equally serious mistake of the chairman of the court, who has to perform his function with conscience and regularity, and meet his duties on time,” FPA Director Zuzana Wienk told Sme.

The Cargo case

The Supreme Court two years ago ordered Cargo to pay €2.5 million for what the court alleged was pushing competition from the market. Nevertheless, Constitutional Court judges Ladislav Orosz, Ľudmila Gajdošíková and Ján Luby have cancelled the fine, claiming that the Supreme Court violated the basic right of Cargo not to have its case taken from a legally appointed judge, Sme reported.

Slovakia’s constitution guarantees to people and firms that their complaints will be ruled on by a randomly selected judge and that later this decision will not be arbitrarily changed. However, Sme pointed out that in the senate which ruled over the Cargo case, the judges were changed based on Harabin’s decision.

At the time the complaint reached the court judges, Igor Belko, Zdenka Reisenauerová and Alena Polačková were sitting on the senate, however, the decisions were made by different judges, as in 2009 Harabin replaced Reissenaurová and Polačková with Miroslav Gavalec and Elena Berthotyová.
Based on the decision of the Constitutional Court, the Supreme Court must once again rule on the Cargo case, but with the original composition of the senate: Belko, Reisenauerová and Polačková, Sme reported.

“Due to reshuffling of the senates, all the decisions that the senate composed of Gavalec, Berthotyová and Belko made about complaints that reached the court before October 1, 2009 are now easily challengeable,” Sme wrote, while estimating that there are a considerable number of such cases.

Gavalec and Berthotyová repeatedly warned the management of the Supreme Court that its reshuffling was incorrect, referring to the decision of the Constitutional Court in a case between Slovakia’s state-owned lottery company Tipos with the Cyprus-based Lemikon, when the constitutional judges sharply criticised a similar move by Harabin, who changed three of the five members of the senate.
The Supreme Court turned a deaf ear to the objections of the judges, according to Sme, even though it was probable that their verdicts would be cancelled by the Constitutional Court in the end.

Decision on record fine in question

Trend weekly found similar discrepancies in a December 2013 case. At that time, the Supreme Court decided on a record fine that six construction firms have to pay for operating as a cartel.

“The conditions at the Supreme Court, however, are opening a way for the firms to effectively defend themselves,” Trend wrote in March 2014, referring to a court decision over the eight-year-old case.

Originally, the Antitrust Office fined Doprastav, Strabag, Mota-Engil, Skanska, Betamont and Inžinierske Stavby for what it called cartel agreements within a highway tender, which was finally cancelled due to high prices. The companies claimed from the early stages that it was not a cartel, and they won against the Antitrust Office in a regional court.

The Supreme Court senate composed of Belko, Gavalec and Berthotyová overruled this decision and confirmed the record fine.

However, in March, Trend suggested that the way the trial was handled makes it possible for the firms to complain about violations of their rights and they can also benefit from “the length of the trial, which was frozen at the Supreme Court for roughly five years”.

Gavalec and Berthotyová called on Harabin to bring the work schedule of the court in line with the judicature of the Constitutional Court to the Tipos case. In March, Trend quoted Harabin as saying that his proceeding was in line with the law: “All the measures are done based on the valid legal state and their goal is to speed up the court proceeding”.

As for the Tipos case, the Constitutional Court ruled on October 18, 2011, that a decision handed down by the Supreme Court at the end of 2010 in the case of Tipos versus Lemikon had violated Tipos’ rights to legal protection and a fair trial because the case had been reassigned to judges other than those originally appointed. In 2009 Harabin replaced Jana Zemaníková and Zuzana Ďurišová, two of the judges originally assigned.

Harabin wrapped up his term as president of the Supreme Court and the Judicial Council on June 22 after failing to get re-elected on May 19. While Harabin’s opponents rejoiced over his failure to keep his twin posts, some suggest that if the Judicial Council fails to elect the next Supreme Court president in mid-September, a third round might occur and that it may be open to failed candidates from the first round – including Harabin.

Harabin said that he would run in the next election for Supreme Court president if the judges wish him to do so.