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Court rules in general prosecutor case

THE PRESIDENT of Slovakia must “deal with” a proposal of parliament to appoint a new general prosecutor based on the 150th article of the Slovak constitution, and if the candidate was elected in accordance with the law the president must either appoint him/her “within an appropriate time frame” or inform parliament of his refusal. These were among the conclusions included in the latest ruling by Slovakia’s Constitutional Court to form part of the ongoing saga of Jozef Čentéš’ appointment to the top prosecutor’s job.

THE PRESIDENT of Slovakia must “deal with” a proposal of parliament to appoint a new general prosecutor based on the 150th article of the Slovak constitution, and if the candidate was elected in accordance with the law the president must either appoint him/her “within an appropriate time frame” or inform parliament of his refusal. These were among the conclusions included in the latest ruling by Slovakia’s Constitutional Court to form part of the ongoing saga of Jozef Čentéš’ appointment to the top prosecutor’s job.

“I do not know of any serious reason which would stand in the way of my appointment to the post of general prosecutor,” Čentéš commented following the ruling on October 24, as quoted by the TASR newswire. Čentéš was elected by parliament to be Slovakia’s next general prosecutor on June 7, 2011 and has been waiting ever since for President Ivan Gašparovič to appoint him.

According to the Constitutional Court, the president can refuse to appoint a candidate only if the candidate does not meet the legal requirements for the office or there are “grave reasons” that cast doubt on the candidate’s ability to perform the post in a way that does not harm the importance of the institution of general prosecutor. When rejecting an appointment the president “shall list reasons for not appointing the candidate, and these reasons cannot be arbitrary”, the court ruled.

When asked by reporters on October 25 for his response to the ruling, Gašparovič said he “would act in line with it”. Pressed on whether he could give any “grave reason” for not appointing Čentéš, the president referred to news reports over the past year, implying that adequate reasons had already been given. However, he declined to state what these were, according to the SITA newswire.

Four Constitutional Court judges, Lajos Mészáros, Ján Luby, Ľudmila Gajdošíková and Ladislav Orosz dissented from the ruling. The court’s rules do not allow its judges to publish dissenting opinions, but the Sme daily reported that the four objected to the fact that the court had in effect consented to Gašparovič’s ongoing refusal to appoint Čentéš by using vague terms and by referring to – but not defining – an “appropriate time frame”.

“An appropriate time frame for appointment is certainly not one year and four months, which has passed since my election,” Čentéš commented in an interview with Sme on October 25.

Prime Minister Robert Fico has meanwhile said that he respects the decision of the Constitutional Court and that he “would wait for the decision of the president of Slovak Republic”.

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 attracted criticism from non-governmental organisations and the current opposition parties, which picked Čentéš as their joint candidate when in government in 2011, Fico said earlier this year that his approach was legitimate.

After more than six months of presidential inactivity, a group of 60 opposition deputies in February this year asked the Constitutional Court to interpret the powers of the president regarding the appointment of the general prosecutor. Subsequently, Čentéš himself also turned to the Constitutional Court, stating that the president, by his failure to appoint him to the post, had violated his rights to be elected as well as his right to equal access to elected positions guaranteed by international agreements. Čentéš’ submission is still pending at the court.

Representatives of the opposition now say that Gašparovič should, without any further delay, appoint Čentéš to the post.

Former justice minister Lucia Žitňanská, now a deputy for the opposition Slovak Democratic and Christian Union (SDKÚ), said that Čentéš was elected by the parliament in a legitimate way and after the decision of the Constitutional Court it is obvious that the president should appoint him. Žitňanská said, as quoted by SITA, that in her view Čentéš meets all the legal conditions.

The Christian Democratic Movement (KDH), another opposition party, said that the verdict was a confirmation that Gašparovič ought to respect parliament’s decision and appoint Čentéš.

“Now I expect Mr President to take action, in a short time,” said Pavol Hrušovský, head of the KDH’s parliamentary caucus.

However, Renáta Zmajkovičová, the deputy chairwoman of the parliamentary caucus of Smer, the ruling party, said that the ruling of the Constitutional Court showed that the president had a strong mandate.

“The wording of the law thus is not such that the president is obliged to appoint the general prosecutor whom the parliament elected in any manner,” said Zmajkovičová, as quoted by SITA. “In my opinion he was [elected] in an undemocratic [manner].”

Independent MP and former interior minister Daniel Lipšic by contrast complained that the Constitutional Court ruling had in fact shifted the country from a parliamentary democracy to a presidential system, which he said was at odds with the way the text of the Slovak constitution was written.


The saga over the top prosecutor


The term of the last general prosecutor, Dobroslav Trnka, expired in February 2011, but it took until June of that year for parliament to finally elect his replacement, Jozef Čentéš. However, Gašparovič has since refused to appoint Čentéš, despite a Constitutional Court ruling in October 2011 that his election had been entirely constitutional. Trnka’s former deputy, Ladislav Tichý, is currently the acting general prosecutor, with Trnka, who was one of the candidates competing with Čentéš for the top job, now working as Tichý’s unelected deputy.

The then ruling coalition had serious problems in late 2010 finding a joint candidate for the position, before settling on Čentéš. They then faced more obstacles 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 which was a re-run of the December 2, 2010 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 secured 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, 2011 that Trnka’s constitutional rights had been violated during two 2010 votes, when deputies revealed how they had voted by photographing their ballots or openly declaring whom they had supported. The court found the deputies, by doing so, had violated the basic principles of the secret ballot and thus Trnka’s rights.

The ruling coalition then went to considerable lengths to make it possible for MPs to choose the general prosecutor via a non-secret vote. 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. The final vote on June 7, 2011 in which MPs chose Čentéš’ was held in secret in order to avoid subsequent claims of illegitimacy. That vote was ruled legitimate by the Constitutional Court in October last year.

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