A LEGAL dispute which has been hanging over the state-owned lottery company Tipos for over 10 years might now return to its very beginning after the Constitutional Court overturned a Supreme Court ruling in the case. As well as giving succour to Tipos, the Constitutional Court ruling could spell trouble for the president of the Supreme Court, Štefan Harabin, who might face yet another disciplinary proceeding in the light of the upper court’s finding.
The Constitutional Court ruled on October 18 that the Tipos vs. Lemikon case should be returned to the Supreme Court, which in turn might mean that the legal dispute has to be effectively re-started.
Ruling in response to a complaint lodged by Lemikon, the justices of the Constitutional Court criticised their counterparts on the Supreme Court for their “inappropriately formalistic approach” to “such a complicated case”.
The Constitutional Court also ruled unconstitutional the replacement of three of the five judges who originally made up the senate that was assigned the case, describing the move as “deliberate, at the very least”. Such a ruling might provide grounds for yet another disciplinary proceeding against Harabin, who has been censured once already this year by the Constitutional Court. Two such p2nishments might result in his being dismissed as a judge.
Tipos vs. Lemikon
The legal dispute involving Tipos arose in January 2000 when another lottery company, Športka of the Czech Republic, sued the state-owned Slovak firm over what it called unauthorised use of lottery trademarks as well as its technical know-how. The companies also went to court over the issue of appropriated business practices and lost profits claimed by Športka, with the Czech firm demanding Sk300 million (approximately €10 million at current exchange rates) from Tipos in 2000.
A Cypriot-based firm, Lemikon Limited, which is associated with businessman Radovan Vitek, purchased Športka’s legal claim in October 2008. The same year, Tipos paid Lemikon roughly €16 million. Tipos now, however, said it expects Lemikon to pay back around €1.9 million, the amount by which its 2008 payment exceeded the damages awarded by the Supreme Court.
Tipos filed an appeal with the Constitutional Court in May 2011 on the grounds that its right to court protection, particularly the constitutionally-guaranteed right to a fair court proceeding, had been infringed.
Constitutional Court rules Supreme Court process was unfair
The Constitutional Court ruled on October 18 that Tipos' right to fair court proceedings had indeed been infringed, stating that the replacement of judges in the senate assigned the case could be viewed as “deliberate, at the very least”.
Harabin first replaced judges Jana Zemaníková and Zuzana Ďurišová in 2009.
“It was an unwarranted change without any rational purpose,” Ďurišová told the Sme daily, adding that at the time she saw her removal from the case as an act of revenge after she signed a constitutional complaint against Harabin’s election to the post of Supreme Court president.
Later, two months before the Supreme Court senate ruled in the case, Harabin replaced another judge on the senate, Peter Dukes.
The Constitutional Court criticised the fact that the judges were replaced after the case was assigned to them for a ruling and stated there was no reason specified in the law that entitled the court chairman to make such changes.
“Such changes in the work schedule could be called deliberate, at the very least,” the ruling states.
US Federal Judge Mark Wolf, who recently visited Slovakia, commented that the replacement of judges who had criticised Harabin was “unfortunate”, and that it would be “absolutely unacceptable in the US”, as reported by the Hospodárske Noviny daily.
Dealing with another aspect of the Tipos vs. Lemikon case, the Constitutional Court hinted at the possibility that the Supreme Court senate could have favoured Lemikon in its ruling. The judges of the Constitutional Court noted that the right of Tipos to proper judicial protection was violated as the Supreme Court “did not use relevant laws” concerning some issues, while in others proper laws were used, but wrongly applied, the ruling states.
“The Constitutional Court is of the opinion that such a complicated case, both in the legal as well as factual aspect, was evaluated by the appeal court inappropriately, simplistically and formalistically,” the ruling continues.
The Constitutional Court thus overturned the ruling of the Supreme Court and ordered it to deal with an extraordinary appeal by the prosecutor, which contained 11 objections and which the Supreme Court had earlier rejected. Legal experts approached by Sme said that the Supreme Court should now assign the case to the same senate, but in its original composition.
According to the head of Tipos, Miloš Ronec, the Constitutional Court’s ruling opens the way for a fair hearing of an appeal that had been submitted by the prosecutor in the case and subsequently proper consideration of the entire legal dispute, Sme reported. Tipos expects the Supreme Court, after considering the prosecutor’s appeal, to return the case to the regional court, where the case should be re-opened and effectively started again at its very beginning.
Harabin may be disciplined again
Meanwhile, the Constitutional Court’s ruling could prove problematic for Harabin, the Supreme Court president, since by making unwarranted changes to the composition of the senate he may have violated his duties, which would constitute a disciplinary offence. Harabin might therefore face another disciplinary proceeding.
Justice Minister Lucia Žitňanská could propose further disciplinary proceedings against Harabin under the new rules of the amended law on judges. If a disciplinary proceeding takes place, the Constitutional Court will be asked to rule on it.
Žitňanská did not comment on whether she would file a disciplinary complaint against Harabin. The ministry’s press department said she first needed to study the Constitutional Court’s verdict, Sme reported.
Harabin has already been officially censured once this year. On June 29, 2011, the Constitutional Court, ruling in a disciplinary proceeding, found that Harabin had violated his duties associated with management of the courts, financial control and internal audit by repeatedly failing to make it possible for the Finance Ministry to audit the Supreme Court’s accounts. On the orders of the Constitutional Court his salary was cut by 70 percent for one year.
Two disciplinary punishments could result in Harabin being stripped of his judge’s robes, according to the amended law on judges.
The Constitutional Court is currently dealing with another two disciplinary cases against Harabin.
14. Nov 2011 at 0:00 | Michaela Terenzani