Chief Justice not likely to go quietly

JUDGING from his weekend television encounter with the new Justice Minister, Supreme Court chief justice Štefan Harabin, 45, isn't growing any mellower with age.
"The minister is grossly misleading [the public] and lying," said Harabin, after Justice Minister Daniel Lipšic accused him of ignoring a law on how cases are assigned.
But neither is the Justice Ministry giving ground in its ongoing showdown with Harabin, whom it regards as a throwback to the communist era.

HARABIN has long guarded his authority in the courts.
photo: TASR

JUDGING from his weekend television encounter with the new Justice Minister, Supreme Court chief justice Štefan Harabin, 45, isn't growing any mellower with age.

"The minister is grossly misleading [the public] and lying," said Harabin, after Justice Minister Daniel Lipšic accused him of ignoring a law on how cases are assigned.

But neither is the Justice Ministry giving ground in its ongoing showdown with Harabin, whom it regards as a throwback to the communist era.

"This isn't a case of the chief justice's willingness or lack of it, but of respect for the law, and the Supreme Court in this case is not respecting the law," said Lipšic, who criticises Harabin's refusal to follow the ministry's reform lead.

While it may seem unusual to have the country's two top justice officials calling each other 'liar' and 'scofflaw', the latest exchange was a faithful image of the current state of Slovakia's courts - stuck between the old and the new, unable to dispel a reputation for corruption and injustice, with public trust steadily ebbing away.

"I wouldn't call this dispute a personal one, it has more to do with differing visions of justice," said Lipšic, who at 29 belongs to a legal generation succeeding that of Harabin. "I want justice to be open and transparent, while chief justice Harabin would rather it were closed to any form of public control ."

Ethics and communists

Štefan Harabin was born in 1957 in the village of Ľubica near northern Slovakia's Kežmarok. He graduated with honours from PJ Safárik University in Košice in 1980, taking a seat on the bench of the Poprad district court in 1983. In 1990 he was appointed to Košice regional court, and then in 1991 to the Supreme Court.

The fact that Harabin as a judge helped the communist regime rule the country is enough, for Lipšic, to make him unfit to preside today. "This isn't a question of political but, in my view, moral fitness," he said in the November 3 TV debate on the Markíza station. "Unfortunately, we still have in our justice system judges who ruled on political cases before 1989. In many countries that have returned to democracy, these judges have been expelled from the justice system."

But Harabin's service under the communists would not, in modern Slovakia, normally be enough to draw public criticism. It is rather the chief justice's links to the 1994-1998 Vladimír Mečiar regime, and the fact that some of the court's verdicts have seemed in practice to benefit Mečiar's inner circle, that has aroused more general disapproval.

Harabin was approved chief justice by parliament on February 12, 1998, having been recommended by the far-right Slovak National Party (SNS), then a member of Mečiar's government coalition. The parliament also recalled Supreme Court Deputy Chief Justice Ivan Majerík and appointed government nominee Jozef Štefanko in his place.

Another government nominee, Stanislav Lehoťák, was rejected in his bid for a deputy chief justice post after it was revealed had not passed a 'lustration' examination in 1992 to weed out former top communists and collaborators with the ŠtB communist secret service.

"In the selection of candidates for the post of chief justice everything was at play except generally acknowledged professional standing. With names such as Lehoťák, Štefanko and Harabin, each one was more controversial than the other," said Ján Hrubala, an NGO worker in the field of justice and one of two candidates for the ombudsman post in 2002.

Some of Harabin's early decisions encouraged hope he would prove an apolitical court head. In April 1998 he relieved deputy chief justice Štefanko of a case - Čarnogurská vs. Mečiar - which he had appropriated improperly from another judge. The politically charged case involved a flip remark by PM Mečiar, who when asked where he had been the night the president's son was kidnapped, told opposition MP Ján Čarnogurský that he should ask his wife.

Harabin's court also turned down an appeal from Mečiar's HZDS party that the Slovak Democratic Coalition opposition bloc not be allowed to contest September 1998 elections.

But the victory of the then-opposition parties in the vote - and the arrival in office of Justice Minister Ján Čarnogurský - saw a line drawn in the sand. On one side stood the Dzurinda government, determined to see major past political crimes investigated and punished, while also increasing the independence and quality of the judiciary. On the other side was Harabin, protective of what he saw as his territory, and unwilling to give an inch to Čarnogurský's reforms.

After several months' grace, in which the new minister was allowed to settle into his post, Harabin in early 1999 complained bitterly at the government's decision not to increase judges' salaries for that year. Harabin reported that few judges were interested in working for the Supreme Court because of poor remuneration, adding he had only 73 judges out of the 87 places the court was supposed to have filled.

One means of improving both the court's standing and its working conditions, for Harabin, was to secure control of the building in which both the Supreme Court and the Justice Ministry had their headquarters. While a dispute over ownership of the building had been simmering for years, in May 1999 a fresh wrinkle was added when the Supreme Court allegedly sent a forged copy of an ownership document on the building to a lower court, according to which the Supreme Court was the owner.

Harabin denied any wrongdoing, but the mud stuck, and became one of the reasons the ministry put forward when trying to dismiss Harabin the following year.

"If it is shown that Harabin knew that someone created a false copy, I wouldn't hesitate for one second to fire him," said MP and constitutional law expert Peter Kresák.

The chief justice was further damaged by his failure to suspend or discipline Štefanko, who in the summer of 1999 hacked his way into a flat with an axe. The incident stemmed from a decision by the Justice Ministry to evict Štefanko from a ministry flat he had been assigned in 1992. Even though the lock was changed twice, Štefanko broke into the flat on both occasions and allegedly assaulted an official, for which the ministry laid charges in July.

Harabin, however, refused to take a position in the case. "I don't have enough information to know who is in the right," he said.

As the end of the Dzurinda government's first year in office approached, Harabin blotted his record still further by proposing a law amendment that would increase his powers over other Supreme Court judges.

Daniel Lipšic, at the time head of office in Čarnogurský's ministry, in reaction to the proposal for the first time used the word 'absurd' in connection with the Supreme Court and its boss. It would not be the last.

"As far as I am aware, no country in the world has a system where the head of a court creates his own court. It's absolutely absurd," he said.

Cat among the pigeons

Disputes over budgets and buildings aside, the Supreme Court's decision to leave former secret service head Ivan Lexa a free man drove perhaps the greatest wedge between Harabin and the Dzurinda government.

Lexa, who still faces a dozen charges from his time at the head of the SIS service, had been a major target of the Dzurinda government's drive to punish political crimes committed under the Mečiar government. He was suspected of organising the 1995 kidnapping of Michal Kováč Jr, son of the former president, and after being stripped of his immunity from prosecution as an MP, had been expected to spend some time behind bars.

However, the decision in mid-1999 by a lower Bratislava court to release Lexa from pre-trial custody caught the government by surprise, as did the Supreme Court's rejection of Čarnogurský's appeal. Čarnogurský had argued that several SIS officials and Lexa himself had yet to be interrogated, and that Lexa's release could mar the investigation and lead to witness intimidation.

The Supreme Court did not agree. In the summer of 2000, Lexa fled the country.

The court's ruling prompted questions as to the political leanings of some of its top officials, especially Messrs Harabin, Štefanko and Lehoťák.

Stanislav Lehoťák is remembered chiefly for a verdict in a case brought by former Culture Minister Dušan Slobodník against poet Ľubomír Feldek for insinuating that Slobodník had been a member of a fascist youth organisation. Lehoťák had awarded the victory to Slobodník in 1995, although the European Court for Human Rights upheld Feldek's complaint in July 2000.

Lehoťák had also indirectly caused the departure of Harabin's predecessor, former chief justice Milan Karabín, who resigned in November 1997 after Lehoťák ruled the Interior Ministry had not broken the law in thwarting a referendum on Nato entry. MP Lászlo Nagy, who had brought the case, called the ruling "absurdly contrary" to a Constitutional Court directive in the matter.

Harabin himself has delivered no verdicts suggesting sympathy for Mečiar's HZDS, but has been taken to task for his silence at crucial moments in the history of Slovak justice - and his outbursts on other occasions when silence might have been advised.

"I personally never met with any pressure from the legislative or executive branch, or any other political influence, that could have influenced decisions in individual cases," said Harabin of the outgoing Mečiar government in October 1998.

But for Pavol Rohárik, head of the Slovak Association of Judges and a fierce opponent of Harabin, the Mečiar era was a time of protest for morally credible judges: "We fought for the independence of the judiciary against former Justice Minister Liščák. Mr Harabin never stepped forth, even when Liščák blamed and shamed Slovak judges. He only woke up after elections."

After a cabinet proposal for his recall was sent to parliament in September 2000, Harabin sent a complaint to the European Court of Human Rights, demanding Sk20 million compensation, and drawing another barb from a ruling coalition MP.

"He should have been writing such letters during the tenure of the government that appointed him, when the rule of law was under far greater threat than it is today," said František Šebej, head of the parliamentary integration committee.

HARABIN (back) and Ján Čarnogurský (front) spent years trading barbs.
photo: TASR

Reaching the nadir

By August 2000, Čarnogurský had had enough, and was publicly demanding Harabin's recall. As Lipšic explained: "His statements and behaviour for the last year and a half have damaged justice and its reputation among professionals and the lay public. The last drop was the case of judge Jozef Štefanko, which creates the appearance of corruption at the Supreme Court. Then there is also the forged decision on the ownership of the Justice Ministry building, where the chief justice has not managed to dispel suspicions attached to Supreme Court employees."

"The chief justice in the first place must be a professional and moral authority for both the lay public and professionals, or at least meet standards of judicial ethics, which Štefan Harabin does not."

The recall move seemed to spark two decisions in Harabin - to thwart his opponents however and whenever possible, and to recruit as much support as he could.

In addition to lobbying MPs not to support his recall, Harabin appealed to the European Court and the Slovak Constitutional Court, and also prevailed on the UN special representative for judicial independence, Data Parama Cumaraswamy, to come to Slovakia and urge parliament not to discuss Harabin's dismissal.

In November 2000, one month before debate on the motion, Harabin invited members of the Chinese People's Supreme Court to visit Slovakia, saying that "Judicial reform in China is well ahead of our own," and that "we have a lot to learn from China."

Just before Christmas his efforts paid off as the SDĽ former communist party abstained from voting on his dismissal, leaving the motion 10 votes short of passing.

Parliament the same month had to pass a special law extending the maximum time a defendant could spend in jail without a final verdict. The legislature's hand was forced after the Supreme Court failed to rule on an appeal from Banská Bystrica underworld boss Mikuláš Černák of a 15-year murder sentence.

"We can't decide under the pressure of some deadline," Harabin said.

Harabin also took what was seen as personal revenge on his main opponent on the Supreme Court, deputy chief justice Juraj Majchrák, by transfering him in May 2001 to the appeals branch after Majchrák had spent 19 of his 21 years in the courts in the criminal branch. Court insiders began to speak of growing discontent with Harabin, who was using his power to shift judges around, to refuse bonuses or holidays, to assign cases and otherwise hassle judges he didn't approve of.

In the fall of that year, a Supreme Court panel of judges under Jozef Štefanko ruled that even though the Deposit Protection Fund had paid out Sk2.24 billion to cover deposits lost in failed Dopravná Banka, the Fund could not be regarded as a bank creditor, and thus had no right to take part in bankruptcy proceedings.

"The interpretation the court used was absurd, and I expect the Attorney General will appeal this absurd decision," said Lipšic.

"It was a grave misfortune that the government's motion to recall Harabin was unsuccessful," added deputy PM Ivan Mikloš.

In perhaps the court's most controversial ruling under Harabin's tenure, a panel of judges in August 2002 again released Ivan Lexa from pre-trial custody after ruling that a lower court judge who jailed him was biased. Lexa had been discovered the month before hiding in South Africa and had been deported to Slovakia to face charges.

The Slovak daily Sme later reported that Harabin had paid special bonuses to the two judges who had approved the verdict, while withholding a bonus from the one judge who had opposed it.

As Čarnogurský left office - and politics - in October 2002, the two men exchanged a final round of pleasantries over Harabin's refusal to call a sitting of the Judicial Council and nominate new life judges because he felt the Council's budget was insufficient.

"Harabin needed Sk5 million to mail a letter with the names of 34 judges from the Supreme Court to the President's Palace, which is about 400 metres as the crow flies," said Čarnogurský. Harabin replied that the minister had spent far too much time in office tending to personal business projects such as importing coal from Russia, and far too little tending to his state duties.

But with Harabin's post up for grabs next year, and new minister Lipšic determined to see the courts computerised and rid of corruption and ŠtB collaborators, the chief justice already seems to be looking back on his rocky tenure with fonder eyes.

"In my own way, I liked Čarnogurský," Harabin said after his TV duel with Lipšic.

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