General prosecutor saga continues

THE ONGOING constitutional drama over who should be appointed Slovakia’s next general prosecutor has taken a further series of bizarre twists and turns, involving the Constitutional Court – and even the husband of its chief justice.

THE ONGOING constitutional drama over who should be appointed Slovakia’s next general prosecutor has taken a further series of bizarre twists and turns, involving the Constitutional Court – and even the husband of its chief justice.

It emerged that Ivetta Macejková, the president of the Constitutional Court, on April 30 allegedly instructed that the file related to the case brought by general-prosecutor-elect Jozef Čentéš against President Ivan Gašparovič be given to judge Peter Brňák. However, Brňák was previously barred from presiding in the case, based on an allegation of bias that was upheld. Čentéš was in June 2011 chosen by MPs to be general prosecutor but the president has ever since refused to appoint him.

Macejková’s instruction prejudged a law change approved by parliament on the evening of April 30 which could now potentially allow Brňák to be reassigned to the case. Gašparovič has yet to sign the approved bill into law.

Brňák, in an e-mailed reply to Macejková which was apparently copied to the court’s other 11 judges and then leaked and published by the Sme daily on May 10, wrote that he did not understand her decision and urged her to “secure a proceeding assumed by the law”.

One of the opposition parties called on Macejková to step down, and former justice minister Lucia Žitňanská said that “there is a power-political fight over who will be the general prosecutor”. A former president of the Constitutional Court, Ján Mazák, told Sme in an interview that he had never encountered such a proceeding, even under the management of Milan Čič, who was president of the Constitutional Court between 1993 and 2000, during the troubled premiership of Vladimír Mečiar. For her part, Macejková said that the leaking of the e-mail to the media was an interference in the independence of the decision-making procedures of the court. She made clear that she does not intend to step down.

Smer pushed the law change through parliament ostensibly in order to resolve a deadlock in the Constitutional Court which has left one or the other side in the Čentéš-Gašparovič case challenging all but one of the court’s judges on grounds of alleged bias.

The amendment, which foresees the implementation of the doctrine of necessity based on the so-called Bangalore principles of judicial conduct, would make it possible for judges who have previously been excluded from deciding on a given matter to pass judgment if inactivity on the part of the court would lead to a denial of access to fair judicial treatment.

Based on the law change, it is thought that the first court senate assigned to hear Čentéš’ case, composed of Justices Marianna Mochnáčová, Milan Ľalík and Peter Brňák, will be allowed to decide on both Čentéš’ complaint and his request for a preliminary injunction to prevent another election for the general prosecutor post from taking place until his case is decided. However, Čentéš’ earlier objection to Brňák and Ľalík was previously accepted and as a result the two judges had been excluded from any decision-making on the matter.

Regarding the controversy over Macejková’s April 30 message to Brňák, Gašparovič’s spokesman Marek Trubač said, as reported by the SITA newswire: “The president does not plan to discuss this issue with the chairwoman of the Constitutional Court.” He added that it was an issue for the court.
“My proceeding has not violated the principles of justice and fairness within the decision-making over the case and thus I object to any statements which imply [that I have an] interest in deciding on the case … unfairly or damaging any of the parties [in the dispute],” Macejková stated, as quoted by SITA.

She justified her decision to return the case to Brňák, according to Sme, by pointing to the likelihood that the law change would come into force and “the file in question would be again assigned to the original senate”.

Macejková argued, referring to the criticism in some media outlets regarding her proceeding at the April 30 plenary session of the court, that she considered it to be more appropriate if the Čentéš case was not directly with her and that this was why she instructed the case file to be given to Brňák’s secretary until it was officially assigned, according to SITA.

At the April 30 session Macejková did not accept proposals submitted by several judges to change the court’s operational schedule in an attempt to break the stalemate in the Čentéš case, arguing that she could not do so because of the ongoing parliamentary session, SITA reported.

Now the case file is again with Macejková until the law change comes into force and it is assigned at a non-public plenary session of the court.

Objections to the revision

Opposition parties meanwhile collected 40 signatures to initiate an appeal to the Constitutional Court against the change to the law. Via Iuris, a legal watchdog, on May 10 called on the president to return the law to parliament due to what it called “serious doubts about the passed revision being in harmony with the constitution”.

In a statement, Via Iuris wrote that the revision could mean that in cases where a citizen files a complaint to the court their opponent, which is typically a state body, can ensure that judges who are biased against the citizen will still decide on the complaint despite being excluded. This is because the state body can lodge counter-claims against all the other justices in the court until the original senate is re-instituted, Via Iuris suggested in its statement.

“The consequence will be a situation when the complaint will be returned to the senate in the original composition and judges who are biased towards the citizen and who have been legally excluded due to bias will decide on the case,” according to Via Iuris. “We consider such a state to be absolutely unacceptable in a legal state.”

The opposition

The opposition party Freedom and Solidarity (SaS) called on Macejková to resign from her post because of what it called “several flagrant mistakes” made during the Čentéš case.

“Unfortunately one must say that the proceeding of President Gašparovič, Prime Minister [Robert] Fico and chairwoman of the Constitutional Court is creating an impression that these three act in harmony,” Žitňanská, an MP for the opposition Slovak Democratic and Christian Union (SDKÚ) told a press conference on May 10, adding that she sees the only solution as being for the Constitutional Court to resolve this issue on its own. “I am calling on Robert Fico to take his hands off the Constitutional Court.”

The letter

Meanwhile, a letter sent by Macejková’s husband, Ladislav Macejka, who is also a lawyer, to Čentéš was published by the Sme daily. Apparently writing in response to Čentéš’ allegation of potential bias on the part of his wife, Macejka repeatedly insults the general-prosecutor-elect. “Obviously your sick desire to sit in the chair of the general prosecutor has released in you a so-far well-masked churlishness and [revealed your] human limitations”, the letter states. Čentéš did not release the letter himself but confirmed that he had received it at his home address. Macejka later argued that he did not write to Čentéš as a party to a legal dispute, but to “citizen Čentéš”, Sme wrote.

In an interview with Sme, Macejková denied showing the Čentéš case file to her husband, suggesting instead that she had only retold him its substance. She said she had done this because Čentéš’ allegation of potential bias interfered with her family life and thereby “also concerned the person of my husband”. There are strict rules on who can in theory access court files.

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