THE OPPOSITION has collected 40 signatures to launch an appeal to the Constitutional Court against a change to the law governing the court’s own operation which the ruling Smer party passed via a fast-tracked proceeding on April 30. Smer justified its sudden move by saying that it was necessitated by the need to resolve the ongoing deadlock at the court in the case of Slovakia’s next general prosecutor. A series of objections against the court’s 13 judges has left only one of them not subject to claims of bias by either general-prosecutor-elect Jozef Čentéš or President Ivan Gašparovič, who has been refusing to appoint Čentéš for nearly two years since he was chosen as general prosecutor by parliament.
Once the bill is signed by the president and published in the collection of laws, which is required for it to become valid, the opposition will submit its appeal as well as a request that the law be suspended pending a final verdict.
Lucia Žitňanská, a former justice minister who is now an opposition MP for the Slovak Democratic and Christian Union (SDKÚ), meanwhile made a separate attempt to halt the legislation by appealing on May 5 to Gašparovič not to sign it, referring to what she called the “delicate position” of the president himself in the dispute at the Constitutional Court, “into which the legislative power decided by a majority vote to intervene in an unprecedented way, [meaning that] you represent Slovakia and thus you are in a conflict of interest”, SITA newswire reported.
The amendment, which foresees the implementation of the doctrine of necessity based on the so-called Bangalore principles of judicial conduct, will make it possible for judges who are otherwise excluded from deciding on a given matter to pass judgment if inactivity on the part of the court would lead to a denial of access to fair judicial treatment. President of the Constitutional Court Ivetta Macejková herself proposed applying the Bangalore principles, according to SITA.
Based on the law change, the first court senate assigned to hear Čentéš’ case, composed of Justices Marianna Mochnáčová, Milan Ľalík and Peter Brňák, will decide on both Čentéš’ complaint and his request for a preliminary injunction to prevent another election for the general prosecutor post from taking place until his case is decided. However, Čentéš’ earlier objection against Brňák and Ľalík was accepted and as a result, the two judges had been excluded from any decision-making on the matter.
Both the opposition and Čentéš have said that the law change, by allowing Brňák and Ľalík to preside, would clearly benefit Gašparovič and, indirectly, Smer – which, according to Žitňanská, wants to install its own choice of general prosecutor at any price.
“The only thing that happened in an objective way and which remained unquestionable is the [selection] of the senate,” Interior Minister Robert Kaliňák said during an appearance on TV news channel TA3 on May 5. According to Sme this confirmed that the government believes the original senate, i.e. including the two excluded judges, should rule on the Čentéš case.
Meanwhile, Ján Mazák, the former president of the Constitutional Court, wrote in an opinion piece for the Sme daily that the first senate can decide and take action – but without the two excluded judges, who should be replaced by judges who have not been excluded.
Mazák wrote that the changed law applies to proceedings already in progress, but that it is silent about the fate of procedural acts which took effect before it was passed. However, Mazák added that it nonetheless refers to the Civil Code, which includes a general rule based on which the new law can be applied to proceedings which started before the law became valid, but states that the legal validity of acts which were made before the law came into force – i.e. the exclusion of Brňák and Ľalík – remains.
However, former deputy chairman of the Constitutional Court Eduard Bárány who also serves as an advisor to the prime minister, disagreed with Mazák, according to Sme, suggesting that even an objection on grounds of bias is an act and thus the preservation of legal effects in the given case would mean that, except for one judge, no one else could decide, Sme reported.
Čentéš earlier commented that the law change interferes with his right to a fair court hearing. Rather than promote justice, the approved revision “violates my basic right to a fair court proceeding and to a legitimate judge in a proceeding at the Constitutional Court”, Čentéš said, as quoted by SITA on April 30, adding that the legislative change takes the case away from legitimate judges and gives it back to judges who have been lawfully excluded.
The opposition objects primarily to the retroactive nature of the revision and what it calls an unprecedented interference by the executive branch in the judiciary.
“The government is raping justice and ensuring that a Smer candidate is elected as soon as possible,” Most-Híd chairman Béla Bugár said, as quoted by SITA. “This has nothing to do with democracy.”
Independent MP Radoslav Procházka, a constitutional lawyer, also said he suspects that the move is designed to pave the way for the governing Smer party to elect its own candidate as general prosecutor.
