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Smer's judicial picks disputed-corrected

RESUMES featuring experience on the European Court of Justice or the European Court of Human Rights did not impress the ruling Smer party, whose MPs on April 3 instead nominated several candidates without any previous experience in constitutional law for 12-year seats with the country’s Constitutional Court.

Some judges of the Constitutional Court will change.(Source: TASR)

RESUMES featuring experience on the European Court of Justice or the European Court of Human Rights did not impress the ruling Smer party, whose MPs on April 3 instead nominated several candidates without any previous experience in constitutional law for 12-year seats with the country’s Constitutional Court.

Watchdogs have panned Smer for its candidate list, suggesting that it is in sharp contrast with Prime Minister Robert Fico’s much publicised effort to purge the country’s judiciary that became a key part of his failed presidential campaign. “This election showed that rhetoric on cleansing the judiciary was only a simulated marketing trick,” Zuzana Wienk, director of the Fair-Play Alliance, told The Slovak Spectator. “The ruling majority swept experienced candidates with international reputations from the table and elected largely unknown lawyers of those who directly are contributing to the problems.”

Parliament managed to elect just five candidates, with the sixth candidate chosen in a second round of voting in May. Then the candidates will be submitted to the country’s president who will appoint three of them to the Constitutional Court. Speculations emerged over whether President Ivan Gašparovič, whose term ends before the new judges should officially take up their posts, might try to handle the appointments.

Gašparovič cannot appoint the judges without roughly violating the constitution or without interfering with the democratic mandate of his successor, since the term of the constitutional judges will end only in July and by being appointed and taking the oath, they would immediately take up their posts, Wienk said.

“If Ivan Gašparovič does this [appoints the judges], after all his rough missteps towards the constitution, this case would become another scary heritage of his political career that he would leave for this country,” Wienk said.

The picks

The list of candidates elected in a Smer-dominated vote in parliament includes Supreme Court judge Jana Baricová, nominated by her boss, Supreme Court President Štefan Harabin; Nitra Regional Court judge Ján Bernát, nominated by General Prosecutor Jaromír Čižnár; notary and university teacher Miroslav Duriš, nominated by head of the Chamber of Notaries Karol Kovács; Bratislava District Court chair Eva Fulcová, nominated by Kovács and dean of Comenius University’s Faculty of Law Pavol Kubíček; and Košice Regional Court chairman Imrich Volkai, a nominee of the dean of the Košice-based Faculty of Law of Pavol Jozef Šafárik University, Gabriela Dobrovičová.

Smer denied having coordinated the selection of candidates, with Robert Madej of Smer telling the Sme daily that though there was a discussion within the party’s club, the party “honours the secret ballot so that deputies can make an independent decision”.

The sixth candidate will be elected in a new vote in May.

The objections

Smer deputies failed to elect acknowledged experts in protection of constitutional rights with exceptional knowledge in constitutional law, said Via Iuris, a legal ethics and civil rights watchdog, in a release.

“They did not elect a long-term judge of the European Court of Human Rights and former chairman of the Constitutional Court and general attorney of the European Court of Justice, two former judges of the Constitutional Court and acknowledged constitutional lawyers, or the winner of ‘Adjudicator of the Year’ award for the best sentence,” Via Iuris wrote in its official release. “On the contrary, candidates who do not deal with constitutional law and have no reputation as acknowledged experts in this area were elected.”

The critics indeed pointed out that candidates with extensive constitutional law and international court experience have not been selected. For example Ján Mazák, who in addition to leading the top court before, also serves as a member of the European Commission for Democracy through Law, the so-called Venice Commission, an advisory body for the Council of Europe. Peter Kresák, for example, served as judge of the federal Czechoslovak Constitutional Court before the split of the country, as well as Slovakia’s agent at the European Court of Human Rights and head of the representation of the UN High Commissioner for Refugees to Slovakia.

As for critics’ objections to the Smer’s picks, Wienk listed, for example, judge Baricová, who is backed by Harabin. “Her decisions in the area of access to information do not show an inclination toward human rights,” Wienk said.

“Or, for example, the king of cronyism in the courts, who has four family members in the judiciary, most of them at his own court,” she added, referring to Volkai.

Sme has previously pointed to some controversial applicants. Two of the candidates, Baricová and Fulcová, have filed antidiscrimination lawsuits against the state. Fulcová is a former classmate of Fico while judge Volkai is, according to Sme, cited as an example of cronyism in the court system.
“It is a great illusion that even a person who has previously not dealt with constitutional law can easily be trained to do so,” said Peter Wilfling, a lawyer cooperating with Via Iuris.

The course of the election has indeed shown that Smer deputies not only did not know who the candidates running for the top judiciary post were, but did not show any interest in this crucial selection procedure, Via Iuris noted.

“Thus, the selection criteria did not include professionalism and convincing knowledge of constitutional law, but obviously political suitability,” Via Iuris suggested.

An ideal candidate should be a professionally respected person who has practice and results in the area of constitutional law or human rights and “sufficient qualification to overturn decisions of general courts, including the Supreme Court, and not least an independent personality with high moral credentials and extensive trust of the professional as well as the general public,” Wienk said.

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