THE CONSTITUTIONAL Court (CC) suspended the provisions of the law pertaining to the widely debated across-the-board security clearances for judges at its September 17 session. The court will examine whether these provisions, passed on June 4 as part of a revision to the constitution born from a peculiar union between the ruling Smer and the opposition Christian Democratic Movement (KDH), are in line with the constitution. The motion was submitted by deputy chair of the Judicial Council Ján Vanko on September 1, while the newly elected head of the council, Jana Bajánková, has joined the motion, the TASR newswire reported.
While judges’ organisations welcomed the court’s decision, the Justice Ministry responded that when working on the legislation, principles of the rule of law and the independence of the judiciary were taken into full consideration.
“We fully respect that these provisions will be submitted to a test of constitutionality at the level of the Constitutional Court,” said Justice Ministry spokeswoman Alexandra Donevová, as quoted by TASR.
Earlier this year 660 of 1,400 judges called on parliament and Ombudswoman Jana Dubovcová to challenge the security clearances, which were set to become effective on September 1, with the Constitutional Court. The European Association of Judges and the Consultative Council of European Judges at the Council of Europe have also criticised the measure.
Vanko said in his appeal that by approving the clearances, the parliamentary deputies have interfered with the legal status of judges by extending conditions for the performance of the judicial profession unexpectedly and retroactively, while failing to respect the principle of legal security and thus arbitrarily violating the principle of division of power, according to TASR.
Based on the widely-criticised measure, candidates for judicial posts and already appointed judges would have to pass across-the-board security clearances in order to become eligible for the job.
While the original version of the draft submitted to parliament by the KDH and Smer did not include such a provision, it was later inserted by Smer through an amending proposal.
The provisions stipulated that the Judicial Council, the top judicial body overseeing the operation of Slovakia’s courts, will have a say over whether judges meet the conditions for performing their job based on documents provided by the National Security Office (NBÚ), Slovakia’s vetting authority.
The NBÚ, which is controlled by the ruling Smer, will look into the judges’ property, and check for corrupt behaviour, links with the underworld and abuses of narcotic substances, the Sme daily reported earlier this year.
The decisions of the Judicial Council can be appealed at the CC, the SITA newswire reported.
Yet, opposition to the clearances has somehow unified judges across the country’s judiciary.
“It is good news for all of us,” said Katarína Javorčíková of the association For an Open Judiciary, an independent judiciary initiative unifying judges who are critical of the performance of former Supreme Court president Štefan Harabin, as quoted by Sme.
According to the daily, the head of the Association of Judges of Slovakia, Dana Bystrianska, has welcomed the court decision as well.
Even if the provisions pertaining to the clearances of judges have been suspended, “without any doubts, the absolute majority of the other parts of the package of important judiciary changes to increase the responsibility of judges remain untouched”, Donevová added.
While many judges oppose the clearances, citing concerns that information obtained in this way could be misused and undermine the independence of the judiciary, the Justice Ministry argues that the clearances are a tool to get rid of corrupt judges whose property is proven to exceed their income or who abuse alcohol and/or drugs.
The judiciary reform pursued by Smer and the KDH through a constitutional amendment is at odds with international standards, said the European Association of Judges (EAJ), with its President Christophe Regnard calling on Justice Minister Tomáš Borec in a letter to try to rectify the situation.
The EAJ learned about the revision, including the widely criticised security clearances, from the Association of Judges of Slovakia. The organisation claimed that a political and media campaign has been waged against judges in Slovakia.
Opposition Most-Híd MP Lucia Žitňanská has been critical of the Smer-KDH initiative from its inception, saying that the proposed changes will stop the judiciary from opening up to public control.
The Fair-Play Alliance (FPA) also expressed concern that the security clearances for judges might be easily abused.
“Besides, their trustworthiness is questionable due to the fact that Štefan Harabin, too, has clearance,” Zuzana Wienk of the FPA told the media earlier this year.
