THE EUROPEAN Court of Human Rights (ECHR) has ruled that the right of Štefan Harabin, Slovakia’s Supreme Court president, to a fair hearing by an impartial tribunal was violated in the course of a disciplinary proceeding in June 2011. The Slovak Constitutional Court, sitting as a disciplinary tribunal, had found that Harabin 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 in 2010. He was fined 70 percent of his annual salary.
The ECHR, in a verdict dated November 20, 2012, determined that “it was not its task to examine whether Mr Harabin had been justified in not allowing the auditors of the Ministry of Finance to carry out the audits”. Instead, the seven European justices restricted themselves to considering whether Harabin’s rights had been observed in the proceedings of the Slovak Constitutional Court, and found that they had not.
The ECHR noted that Harabin had accused four of the Slovak Constitutional Court’s 13 justices of bias. In addition, the then minister of justice had challenged another three of the justices for the same reason, claiming that they had a personal relationship with Harabin and owed their appointments to the same political party that had previously nominated him as justice minister. The Constitutional Court decided not to exclude any of the seven judges, noting, according to the ECHR, that “excessive formalism posed the risk of rendering the proceedings ineffective”, i.e. that if all the seven were to be excluded it would prevent the court from delivering a ruling.
The ECHR decided that this was not good enough. In its verdict it rebuked the Constitutional Court for failing to provide “convincing arguments as to why the challenges [regarding the seven judges’ alleged bias] could not be accepted in the disciplinary proceedings”. In effect, the ECHR criticised the court – Slovakia’s highest judicial body – for refusing to properly and publicly consider the possibility that more than half of its own members might be incapable of making an unbiased decision. The ECHR stressed that “what is ultimately at stake in such proceedings is the confidence of the public in the functioning of the judiciary at the highest national level”. It also pointed out that a challenge to a judge did not automatically mean that they should withdraw or be excluded, but that the Constitutional Court did not appear to have taken a stand on “whether the reasons invoked by the parties justified their exclusion”.
Harabin had sought €100,000 in damages and €50,000 in loss of earnings, but the EHCR granted him only €3,000 in damages, plus €500 in costs.
“… I did not care about the money but I rather wanted to point out the abuse of the judicial system by politicians,” Harabin said in response to the verdict, as quoted by the SITA newswire.
In its ruling the ECHR found that, aside from its finding that Harabin’s right to a hearing by an impartial tribunal had been violated, his other complaints relating to the alleged unfairness of the disciplinary proceedings against him were “inadmissible, as they were either manifestly ill-founded or he had failed to exhaust the domestic remedies in their respect”.
The EHCR recommended that the disciplinary proceeding against Harabin be reopened at the Constitutional Court. According to Marica Pirošíková, the representative of the Slovak government to the EHCR, Harabin ought to request the reopening of the case, the Sme daily reported.
Justice Minister Tomáš Borec also suggested that the best solution to the situation would be if the court were to decide on the case again, using personnel that did not violate any articles of the European Convention of Human Rights. Ivetta Macejková, the chairwoman of the Constitutional Court, responded that she cannot order any Constitutional Court judge to say whether they are or are not biased in any case.
“If the justice of the Constitutional Court says that in the given case he/she is not biased, then all I can do is accept it or not accept it and then there is a vote over it, thus it is always up to the judge who has been labelled with bias to respond to that and how the judge responds, then it is how it happens,” Macejková commented, as quoted by SITA.
Former justice minister Lucia Žitňanská, who initiated the disciplinary proceeding against Harabin based on a request from the Ministry of Finance in 2010, said she would be observing the attitude of the Justice Ministry if the Constitutional Court were to reopen the case.
“Let me note that Štefan Harabin applied several claims which have been dismissed,” Žitňanská said, as quoted by SITA, referring to the ECHR’s dismissal of most of Harabin’s complaints as well as most of his claim for damages and loss of earnings.
Žitňanská said that the present government, in its stand to the EHCR, fully supported Harabin in his claim but that “the Strasbourg court did not acknowledge this argumentation”. According to Žitňanská, the ECHR noted that following the 2012 parliamentary elections the Slovak government had changed its stand towards the proceeding, and that the previous government – of which she was a member – had argued that Harabin’s complaint was inadmissible.
Žitňanská, who has long been at loggerheads with Harabin, said in 2011 that the decision by the Constitutional Court was an important signal that not even a high judicial official can get away with everything and that there is a limit set by the law and public interest. She added that it had been confirmed that controlling how public finances are handled in no way interferes with the independence of the courts, SITA reported. Harabin claimed that the court’s decision was politically motivated.
The Supreme Court under Harabin repeatedly denied access to Finance Ministry auditors from August 2010 onwards. Harabin asserted repeatedly that “only the Supreme Audit Office [NKÚ] wields the right to supervise the Supreme Court”. He restated this position at his disciplinary hearing at the Constitutional Court, suggesting that a ministerial audit of the Supreme Court “is not possible unless one intends to talk about the independence of courts”, SITA reported.
Then-finance minister Ivan Mikloš had previously fined Harabin €33,000 for refusing to grant the auditors access. Mikloš argued that by blocking the ministerial audit it could be argued that Harabin was abusing the independence enjoyed by courts and judges.
Žitňanská filed a proposal in November 2010 with the Constitutional Court to launch a disciplinary proceeding against Harabin, proposing the highest possible fine: a one-year, 70-percent cut to his salary. Shortly afterwards the Supreme Court filed a criminal prosecution against Žitňanská over what it called suspicion of her committing crimes including abuse of power, intervening in the independence of the courts, libel and unauthorised use of personal data, SITA reported.
The court asserted that Žitňanská committed these offences when she submitted and published her proposal for a disciplinary proceeding against Harabin. It said she stated untrue information and published personal data. According to the court, Žitňanská violated the constitutional principle of presumption of innocence and international protocols on the protection of judges.
On the same day Žitňanská responded that filing proposals for disciplinary proceedings lies within the authority of the justice minister and that she would use that authority whenever she believed that a court chairperson had violated the law.
James Thomson contributed to this story