ONLY one judge remains at the Constitutional Court who has yet to be subjected to an objection by either Slovakia’s elected but not yet appointed general prosecutor Jozef Čentéš, or President Ivan Gašparovič, who has been refusing to appoint Čentéš for nearly two years since he was chosen for the post by parliament. The ‘objection war’ raging at the Constitutional Court, affecting 12 judges so far – the exception is Marianna Mochnáčová – has resulted in a stalemate, with observers suggesting that a random draw from the pool of judges who have not yet been excluded by the senate from making a decision in the case, could be one solution.
In a recent move, Čentéš filed an objection of bias against the president of the Constitutional Court, Ivetta Macejková, proposing her exclusion from deciding over the dispute between himself and Gašparovič, the SITA newswire reported.
“I objected, as in my opinion, there are facts - a fundamental part of which is publicly known – that cause well-founded doubts about the non-bias of the president of the Constitutional Court with regard to her relation to the issue at hand, and to the president as the other participant in the dispute,” Čentéš said as quoted by SITA.
However, Čentéš did not want to discuss the specific reasons for his objection due to what he called “reasons of human and professional respect” towards Macejková, adding that they will be made officially known only after the Constitutional Court decides on the objection.
Meanwhile, responding to the pile of objections, Macejková admitted that the situation might cause what she called “possible procedural complications”, but rejected the notion that it could paralyse the court.
“The Constitutional Court will seek solutions to the emerging procedural situation, which would conform [to the constitution] and would make the decision on the complaint of Jozef Čentéš possible, as far as [being] possible within an appropriate time frame,” said Macejková, as quoted by the Sme daily.
Čentéš also hinted on March 19 that Macejková issued a statement indicating that the court could be expected to apply the so-called “doctrine of necessity”, based on which even contested judges could be invited into the decision-making process, SITA reported.
Jozef Vozár of the Institute of Law and State at the Slovak Academy of Sciences (SAV) told The Slovak Spectator that an additional two judges could be randomly selected from the pool of judges who have already been objected to, who would join the one remaining judge who has not faced an objection, so as to complete a three-member senate, so that “one functional senate is created and thus the whole court is made functional”.
The history of the case
The term of the last general prosecutor, Dobroslav Trnka, expired in February 2011, but it took until June of that year for parliament to elect Čentéš as his replacement. However, Gašparovič then refused to appoint him, despite the Constitutional Court ruling in October 2012 that his election had been constitutional. Gašparovič faced extensive criticism from the opposition and political analysts for failing to appoint Čentéš, and then for presenting what they say are insufficient reasons for formally rejecting him. Čentéš, on November 7, 2011 filed a complaint against the president’s lack of action with regard to his appointment. The Constitutional Court has not decided on this case yet.
In its verdict, delivered on October 24, 2012, the Constitutional Court said that the president must “deal with” a proposal of parliament to appoint a new general prosecutor based on the 150th article of the Slovak constitution, and that 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 to do so. 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 job in a way that does not harm the authority of the institution of general prosecutor. On the heels of this decision, Gašparovič said he would not appoint Čentéš.
The ‘objection war’ began in early January 2013, when Čentéš filed an objection against the refusal of Gašparovič to appoint him, which was to be considered by a panel composed of Justices Marianna Mochnáčová, Milan Ľalík and Peter Brňák. Čentéš immediately filed an objection against Brňák and Ľalík, which was accepted by a panel composed of Justices Lajos Mészáros, Sergej Kohut and Juraj Horváth. As a result, Ľalík and Brňák were replaced by Ján Luby and Ladislav Orosz. Gašparovič, however, submitted an objection to Luby and Orosz – and then to Mészáros, Kohut and Horváth, who were to hear his objection.
The Constitutional Court then established a third panel to judge the objection against the second panel, composed of Justices Rudolf Tkáčik, Ján Auxt and Ľubomír Dobrík. Čentéš submitted an objection against Auxt and Dobrík at the end of February, and this objection went to a panel consisting of Tkáčik, Gajdošíková and Macejková.
The president then objected to Tkáčik and Gajdošíková. Čentéš subsequently submitted his objection to Macejková, leaving Mochnáčová as the only judge of the court not subject to an objection.
As for the question of whether this situation could in any way affect the functioning of the Constitutional Court in the future, Vozár told The Slovak Spectator that it could inspire legislators to change the law, adding: “I do not rule out that in the future objections of bias will be judged more strictly so that the functionality of the court is preserved”.
“In my opinion, those whom the court has already decided were biased should not decide [the case],” Vozár told The Slovak Spectator. “There are a sufficient number of those against whom an objection was merely filed, which is a qualitative difference.”
Radka Minarechová contributed to this story
21. Mar 2013 at 0:00 | Beata Balogová