THE CABINET has agreed to a revision to the law designed to cut the Gordian knot at the Constitutional Court, which has left only one out of thirteen judges not subject to allegations of bias by either general-prosecutor-elect 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 cabinet of Robert Fico approved a revision to the law on the organisation of the Slovak Constitutional Court, drafted by the Justice Ministry, in order to achieve progress in the case of Slovakia’s next general prosecutor. Part of the solution is that even judges who are subject to an allegation of bias or have been excluded based on such claims may decide on a case in order to allow a verdict to be reached. However, Čentéš has already responded that the draft, approved by the cabinet on April 24, violates his right to a just process and a legal judgement, the SITA newswire reported.
“It is the most suitable from the point of view of legal logic; it is an excellent proceeding and legally flawless,” commented Justice Minister Tomáš Borec, as quoted by SITA, on the draft amendment, which foresees the implementation of the doctrine of necessity based on the so-called Bangalore principles of judicial conduct. “If you look at it from either way, it is necessary that the senate which was drawn on the first place finally decides on the case.”
The principle being applied makes it possible for judges who are otherwise excluded from deciding on a given matter to pass judgement if inactivity on the part of the court would lead to a denial of access to fair judicial treatment.
Čentéš, however, responded that in applying the doctrine judges who have not yet been excluded from deciding on the case should be given preference, adding that “the proceeding which the cabinet proposes in my case is defensible in my opinion at most in the event that all the judges of the Constitutional Court are legally excluded and the decision is made only among the excluded judges”, SITA reported.
Thus, according to Čentéš, any proceeding which in his case leads to the case being taken from the judges who have been challenged but not yet excluded and assigned to judges who have been legally excluded (of whom there are two) “will become the subject of a proceeding at the European Court for Human Rights”.
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.
The ‘objection war’ began in early January 2013, when Čentéš filed an objection to Gašparovič’s formal refusal to appoint him. This 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, Ľudmila Gajdošíková and Ivetta Macejková. The president then objected to Tkáčik and Gajdošíková. Čentéš subsequently submitted an objection to Macejková, leaving Mochnáčová as the only judge of the court not subject to an objection. Ľalík and Brňák are the only judges to have been formally excluded so far.
29. Apr 2013 at 0:00 | Beata Balogová