Selections of legally appointed judges have been conducted electronically for several years now at all general courts of law. In practice, the way it works is that a computer program that cannot be tampered with generates the name of a judge to whom a specific case is assigned. This means of assigning cases creates legal certainty on the one hand, and eliminates any room for doubt regarding such choices on the other.
In the past it happened that parties to disputes found out how cases were assigned at individual courts, and filed their charges accordingly. This is another reason to eliminate the "human factor". The only guarantee of the right to a legally-appointed trial judge is if cases are distributed according to work schedules and with the aid of a random selection system provided by computer technology.
This random selection method has been used for years at general courts of law, but surprisingly not at the Constitutional Court. Until recently, the rule was that the chief justice of that court handed out the cases. This of course offered less of a guarantee that cases would be handed out without regard for subjective interests that hurt the public interest. Many people still remember the infamous occasion on which the first chief justice of the court, Milan Čič, assigned a well-known case related to the kidnapping of the former president's son to Tibor Šafárik, even though until then the custom had been that the case was assigned to the judicial senate that had worked on similar cases. The argument presented by the chief justice shocked some people, because Čič said that it was necessary to find judges with other opinions on the given case.
In order that such incidents never be repeated in Slovakia, and that the country not violate Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, the manner of assigning cases at the Constitutional Court was brought into line with the method used at general courts of law. In 2004, parliament passed an amendment to the 1993 Act on the Organization of the Constitutional Court which took effect on August 1, 2004. According to this amendment, cases are assigned to judges randomly by the use of technology and programs approved by the court plenum, in order that no chance exist of any influence over the selection procedure.
Or, more accurately, that's the way cases should be assigned. The previous Constitutional Court never put this law into effect and never assigned cases in this way. The reason is not known. However, it is regrettable that according to the new work schedule of the new Constitutional Court from February 28, 2007, (available at at č. Spr 140/07, čl. IV bod 1, čl. V bod 1) the chief justice of the court continues to assign cases without the use of a random case assignation system.
In doing this, the Constitutional Court is not only breaking the law, but as the highest body of constitutionality in the country it is also violating Article 48 Paragraph 1 of the Slovak Constitution, which guarantees the right to a lawfully assigned judge. The curious thing about this is that the Constitutional Court in a previous ruling already said: "A legally assigned judge is one assigned in keeping with the court's work schedule". How can people's right to a legally assigned Constitutional Court judge be protected when the court's work schedule and case assignment system are illegal?
We are surprised by the actions of the Constitutional Court. But is it we who are wrong, or is the court guilty of an oversight? If the Constitutional Court has made a mistake, it is a problem - and a big one!
Ivan Trimaj and Ernest Valko are constitutional law experts practising in Slovakia.
Author: Ernest Valko
