SUPREME Court President Štefan Harabin has been increasingly critical of the performance of several judges on the Constitutional Court in recent days – so much so that he is taking tough action against specific judges. The Constitutional Court judges responded that Harabin’s action might be motivated by proposed disciplinary proceedings against the Supreme Court president.
Harabin filed a criminal complaint on August 20 against the senate of the Constitutional Court that produced a verdict in the controversial case of promissory notes signed by Ján Ducký, the former general director of the Slovak gas utility SPP in the late 1990s. Harabin is suing Ladislav Orosz, Ľudmila Gajdošíková and Ján Luby for what he calls an abuse of public office. The Supreme Court boss has also initiated disciplinary proceedings against another senate of the Constitutional Court, consisting of Sergej Kohut, Juraj Horváth and Lajos Mészáros, citing a decision which resulted in the temporary release of four alleged gang members from pre-trial custody.
The Senate of the Constitutional Court sided on August 13 with the complaint of the Swiss trade company Gen Man Ventures AG, which through general courts has been seeking payments for the so-called Ducký promissory notes worth over €38 million. The senate ruled that the Supreme Court, with its previous proceeding, violated the plaintiff’s right to have a judge lawfully decide on the case. The chairman of the Constitutional Court senate, in a brief reasoning, said a violation occurred when Harabin arbitrarily changed the working schedule of the Supreme Court and replaced a judge in the senate who was to decide on a general prosecutor’s appeal in the Ducký’s promissory notes case. The Constitutional Court also ordered the Supreme Court to cover the plaintiff’s trial expenses, the SITA newswire reported.
According to the Constitutional Court, the chairman of the Supreme Court did not list reasons for replacing a member of the senate, neither while making the change nor in responding to a Constitutional Court request. The chairman said that there were no legal reasons for replacing the judge, arguing that it is not possible to change judges already assigned without legal reasons, and that this change had an impact on the ruling, SITA reported.
Nevertheless, the Constitutional Court did not decide on the merit of the case over whether or not the Ducký’s notes are valid.
Harabin claims that Orosz, Luby and Gajdošíková abused their public office when they ruled that the change Harabin made to the senate for the Ducký’s promissory note case was illegal, according to TASR newswire. Harabin supported his claim by citing a similar decision of the Constitutional Court dating back to 2003. In that instance, the court rejected a similar complaint. At the time, the plaintiff also challenged changes to the work schedule of the court, however the Constitutional Court rejected the complaint, arguing that the plaintiff should have turned to a general court.
The Supreme Court president argues that if Orosz, Luby and Gajdošíková had a different opinion from the verdict from 2003, they should have advanced the matter to the plenum of the Constitutional Court so that this judicial body can unify the differing stances, adding that “these three judges have not met this duty”, the TASR newswire reported.
“I am publicly asking the senate of the Constitutional Court comprising of Luby, Gajdošíková and Orosz, that if there are billions involved [in a case] to the benefit of mafia figures, then how much is the sudden change of a legal opinion on the same matter worth,” Harabin asked shortly after the court delivered its verdict on August 13.
The Constitutional Court judges however on August 21 said in an official statement that they do not share Harabin’s opinion, SITA reported. When responding to Harabin’s public question they facetiously said it seems their stable legal opinion is “worth a criminal complaint”, according to a statement that reaffirms their own decision from August 15.
In that August 15 stand, Orosz, Luby and Gajdošíková claim that their senate upheld previous rulings by the Constitutional Court in comparable cases: “it particularly referred to legal stances expressed in the ruling of the Constitutional Court from October 18, 2011, pertaining to the case of Tipos [Slovakia’s state-owned lottery company]”. In this case, the Constitutional Court, with a different senate, also decided that changes to the judicial senate violated the right to a lawfully assigned judge, according to TASR.
Changes to the composition of the senate of the Supreme Court in the Tipos case, the Constitutional Court ruled, qualified as violating the basic right not to be withdrawn from a lawfully assigned judge. They cited as evidence measures signed by the chairman of the Supreme Court from August 3, 2010 and September 24, 2010, adding that in the case of the Ducký’s promissory notes, the composition of the senate was made based on the same measure of the Supreme Court from August 2, 2010.
Harabin argues that similar changes were also made by his predecessor, acting head of the Supreme Court Juraj Majchrák, and that those 2003 changes also pertained to the Ducký’s promissory notes.
According to the Constitutional Court judges, verbal attacks, criminal complaints and proposals for a disciplinary proceeding against the judges of the Constitutional Court are effectively a tool for subsequent questioning of their unbiased approach in deciding over issues that directly concern the chairman of the Supreme Court, SITA reported on August 21.
The Constitutional Court is scheduled to decide on three proposals for disciplinary proceeding against Harabin, according to the statement issued by Orosz, Luby and Gajdošíková.
Meanwhile, nine judges from the Supreme Court have rejected Harabin’s criticism of the Constitutional Court in an open letter, the Sme daily reported.
“As the head of the Supreme Court should know the law and should be aware that a judge cannot be prosecuted for his decision, we perceive his statements as an attempt to expand fear in the judicial system, an attack on its independence and downplay grave flaws of the chairman of the Supreme Court,” the justices write, adding that Harabin has long been dishonouring not only the Supreme Court but the entire judicial system with his statements.
So far, the letter of protest has been signed by Supreme Court justices Elena Berthotyová, Igor Belko, Jana Henčeková, Miroslav Gavalec, Zuzana Ďurišová, Milan Karabin, Peter Paluda, Rudolf Čirč and Juraj Kliment. They also defended the Constitutional Court in this case, deeming its verdict as final.
The Piťovci case
“I am filing a proposal for a disciplinary proceeding against judges Kohut, Horváth and Mészáros, because they are not familiar with the valid legal situation and they do not know the content of the file,” Harabin said August 20.
Harabin argues that these judges were meant to rule on the custody of only one of the alleged Piťovci gang, but instead cancelled a decision on how all the suspects were kept in custody, four men total. According to Harabin, it represents the overstepping of powers by public officials, since three of these accused did not file a constitutional complaint, according to TASR. Harabin argued that the Constitutional Court cannot decide about the rights of a person who has not turned to the court.
The pre-trial custody term of four members of the alleged Piťovci group – named after Juraj ‘Piťo’ Ondrejčák – caught in November 2011 during the biggest police crackdown in Slovak history, elapsed more than a year ago. After the Specialised Criminal Court refused to prolong pre-trial custody on May 24 of last year, the prosecutor filed a complaint and the Supreme Court extended custody nearly five months. The Constitutional Court Senate led by Juraj Horváth cited a procedural failure as it cancelled the Supreme Court’s decision, Sme reported. The Supreme Court reopened the case on July 24 and this time rejected the prosecutor’s complaint, citing significant changes in the case since 2012.
Though the four accused had to be released, two of them, suspects Matej Š and Miroslav A, were immediately arrested on separate charges, according to SITA, including allegations of more serious crimes, like the establishment of a criminal group and blackmail.
