JUDICIAL reform was a key theme of Andrej Kiska’s successful presidential campaign in 2014 and indeed there have been some positive changes since, but recent weeks have seen several setbacks.
The ousting of Štefan Harabin as the head of the judiciary is perhaps the single biggest development of the past year, but Kiska still says he was left disappointed with the course of events at the turn of October and November. First, the parliament ignored the president’s call to draft constitutional amendment to set retirement ages for judges, then the Constitutional Court dismissed a case he filed over how judicial appointments should be handled.
“All these are signals for me that a clear drive, clear will to change our judiciary, is missing,” Kiska said. “The situation is still not good, I even feel it is becoming critical.”
Public trust in judiciary remains low. In an opinion poll conducted in early September by Via Iuris and the Focus polling agency, 37 percent of respondents said they do not trust the courts or the judicial system at all; another 37 percent said they were not confident.
Mistrust has never been so high, and these results confirm the negative trend which has already been lingering for 20 years, Via Iuris noted.
Forced to retire
In the wake of parliament rejecting calls to introduce age limit, Kiska met with Jana Bajánková, the head of the Judicial Council, on November 5. Kiska requested the Council to draft a list of judges older than 65 and draft an amendment to the Constitution that would force judges to retire at 67. For Supreme Court judges the retirement age should be 70 years.
At the moment, the system is such that the Judicial Council has to propose each individual judge to be retired, and there are no across the board deadlines either for the Council to send their proposal or for the President to dismiss the judge.
There are 110 judges aged over 65 with suspended function, the Judicial Council reported as cited by the SITA newswire.
Kiska has requested the MPs to draft the constitutional change to the retirement rules for judges once before, but Parliament Speaker Peter Pellegrini disregarded the request, with the argument that “the Constitution is the fundamental document of the state and therefore every amendment must be premeditated and discussed”, Pellegrini’s spokeswoman Monika Hucáková said in early November.
“It’s regrettable because it should have brought greater transparency and order,” Kiska said following his meeting with Bajánková.
Additionally, Pellegrini pointed out through his spokeswoman that the discussion about changes in judiciary should also include the rules for appointment of Constitutional Court judges, to make it clear in the Constitution that the president must pick one of the two candidates the parliament proposes him for a vacant post at the Court.
Constitutional Court dismisses Kiska filing
Pellegrini refers to the process of appointing constitutional judges that is bone of contention between the parliament and the president.
The dispute goes back to July 2014 when Kiska rejected five of six candidates for the constitutional judge post proposed by the parliament. He appointed only one judge, Jana Baricová, stating that in the remaining candidates he did not see enough interest in constitutional law and necessary competence. The rejected candidates then turned to the Constitutional Court. In three cases, the court issued a ruling in March stating that the president violated the rights of the candidates to access the public offices under non-discriminatory conditions.Read more
Kiska then turned to the court with the question whether he must or only can appoint candidates for the post of a constitutional judge elected by Smer. The court not only refused to answer, but also criticised the president for filing the case after the fact.
Kiska said he was “unpleasantly surprised” by the stance of the Constitutional Court, which refused to interpret the Constitution for him. He criticised the Court for seeking “some formal reasons” to dismiss his request.
The court claimed that the document did not contain certain provisions required by law, while part of the motion was unjustified.
Meanwhile, lawyers are divided over the actual meaning of the ruling. While the Sme daily wrote the ruling cannot force Kiska to appoint some of the rejected candidates, Denník N claims it orders Kiska to appoint one of them.
Kiska earlier asked the parliament to propose four new candidates for the two vacant chairs, but Pellegrini refuses to do so and Kiska must choose from among the five candidates he earlier rejected.
Meanwhile, the 13-member Constitutional Court functions with only 11 judges and its head Ivetta Macejková admits the shortage of people is a problem.
Harabin faces discipline
Meanwhile, the Supreme Court is still dealing with Štefan Harabin and the consequences of his (now dissolved) penal senate’s controversial rulings.
Supreme Court President Daniela Švecová filed a disciplinary motion against Harabin, requesting for him to be transferred to a lower-instance court and have his salary halved. That should be his punishment for not convening the penal college of the Supreme Court to unify the conflicting rulings in cases pertaining to the police inspection.
Harabin in response filed a disciplinary motion against Švecová, proposing her to be stripped from her judges’ post, accusing her of bullying him for his legal opinion. He claims Švecová abused her post by acting willfully and unlawfully when she divided the senate that he once led and convened it on her own accord to unify earlier rulings.
More money for judges
Judges at all courts will get a 4 percent salary increase as of January, after three years without a raise. In January, the Judicial Council challenged the salary freeze at the Constitutional Court, arguing that “continuing to freeze the valorisation of judges’ salaries for the third year in a row does not meet the criteria about the temporality of the precaution as well as the criterion about the exceptionality of interfering with judges’ salaries which are an inseparable part of the material guarantee of judges’ independence”.
Judges of the Supreme Court however believe their salaries should be increased more. While the amendment that is currently in the parliament grants a 10-percent bonus for a college head and 8-percent bonus for a head of senate, the Judicial Council requests 25-percent and 20-percent respectively. At the same time the Council proposed the special bonus for Penal College judges, worth €1,572, to be scrapped. Thus, the changes they propose should not affect the budget of the court, the Sme daily reported.
Some opposition MPs have criticized the amendment on salaries of judges and prosecutors due to the special bonus for retired judges worth about €170 monthly, an annual bonus equal to monthly salary for active judges, and prolonged, seven-week of annual holidays for judges over 45 years old who have been in their posts for 10 or more years.
While opposition MPs and former justice minister Daniel Lipšic called this “a slap in the face to all normal people”, the ministry argues that the proposed benefits are but “a fragment of what has been saved on the salaries of judges in four years – about €1.5 million versus €17 million”, Justice Ministry spokeswoman Alexandra Donevová.
15. Nov 2015 at 22:40 | Michaela Terenzani