Getting a court to rule clearly on the amnesties granted in connection with the 1995 kidnapping of the former president's son Michal Kováč Jr. and the 1997 marred referendum on NATO entry and direct presidential elections is beginning to look like an impossible task.
The Constitutional Court has been asked several times to decide if Prime Minister Mikuláš Dzurinda was acting correctly last December when he annulled an amnesty issued in the referendum and Kováč Jr. cases by his predecessor, former Prime Minister Vladimír Mečiar. Although the power of amnesty normally belongs to the president, both Dzurinda and Mečiar were wielding presidential powers they inherited in the absence of a sitting head of state.
Slovak President Rudolf Schuster was sworn in on June 15 this year, fifteen months after the previous President Michal Kováč's term in office ended on March 2, 1998.
On June 28, the First Senate of the Constitutional Court, led by Justice Tibor Šafárik, ruled that the president is not authorized to modify an amnesty once it has been issued, meaning that Dzurinda in effect was not allowed to cancel the amnesties issued by Mečiar. According to the constitution, however, the court's explanatory ruling has only a declarative character, which means that the verdict does not apply to past cases, but serves merely as reference for the future.
The First Senate then issued another explanatory decision on July 22, saying that the Dzurinda amnesty had no legal status because it had been issued improperly.
According to Šafárik, Dzurinda had not been formally empowered by his cabinet to execute presidential powers, including the power to grant an amnesty. Šafárik explained that the cabinet had not provided the Constitutional Court with a document authorizing Dzurinda to execute these presidential powers. "This tiny administrative mistake can have an extremely negative impact on the whole matter," Šafárik told journalists.
But Šafárik's ruling met with strong disagreement from the government and constitutional law experts. Cabinet spokesperson Miriam Fiťmová said that Dzurinda had inherited his presidential powers from acting president Mečiar, who had inherited his presidential powers by a cabinet decision from March 3, 1998. "In fact, it was the previous government which armed Dzurinda with presidential powers," Fiťmová argued.
Ernest Valko, a well-known Bratislava attorney and former head of the Czechoslovak Constitutional Court, said in light of Šafárik's reasoning on July 22 - that the Dzurinda amnesty simply did not exist, in legal terms - the same senate should not have been able to issue its June 28 ruling. "If Dzurinda had been unqualified to grant the amnesty, then the first legal case [in which the plaintiff was a group of deputies from Mečiar's HZDS party] would not have had a defendant," said Valko.
"It's a very controversial step and I don't understand what he [Šafárik] was trying to do," Valko continued. "There's also this rule of continuity in executive power, which means that each prime minister, whether it was Mečiar or Dzurinda... was entitled to execute the powers [of acting president] until a new president took office."
Mečiar's HZDS colleagues, however, claim that the Court's ruling was clear - and that it proved that Dzurinda had acted against the constitution. At a July 20 press conference, Tibor Cabaj, head of the HZDS parliamentary caucus, said that the party would appeal to international institutions, including the Council of Europe, to complain about the Dzurinda cabinet's "illegal moves."
"The investigators [of the kidnapping and the referendum cases] are continuing their activities as they like and are intentionally violating the constitution and other laws," Cabaj said.
