THE PURGE OF THE SLOVAK JUDICIARY

C O N F I D E N T I A L SECTION 01 OF 04 BRATISLAVA 000413

SIPDIS

STATE FOR EUR/CE, INL/C

E.O. 12958: DECL: 9/25/2019
TAGS: PREL PGOV KJUS PHUM LO
SUBJECT: THE PURGE OF THE SLOVAK JUDICIARY

REF: A) BRATISLAVA 314; B) BRATISLAVA 289; C) BRATISLAVA 282; D) BRATISLA
VA
256; E) BRATISLAVA 248; F) BRATISLAVA 215; G) BRATISLAVA 166; H) BRATISL
AVA 47; I) 08 BRATISLAVA 407; J) 08 BRATISLAVA 334

CLASSIFIED BY: Keith A. Eddins, CDA, State.
REASON: 1.4 (b),(d)

1. (U) Introduction and Summary: Negative trends in the
Slovak judiciary (refs a-j) have intensified and accelerated
since the June election of former Justice Minister Stefan
Harabin to the position of Chief Justice of the Slovak Supreme
Court. On what seems to be a daily basis, experienced judges
with good records are suspended for speaking out against the
misuse of power by Harabin and his cronies. The headline of
Slovakia's major daily SME today reads: "Judge is sanctioned for
her opinion." An accompanying op-ed suggests that November 17
commemorations should be cancelled because if a judge can be
fired for speaking publicly about problems in the judiciary, the
events of November 1989 might as well have never happened.




2. (U) In Slovakia, judges are working in a climate of
fear and therefore more and more are ruling as instructed in
sensitive cases. Judges who have been criminally prosecuted for
corruption are still on the bench, while others face immediate
suspension for flimsy or fabricated complaints -- or for their
speech. Judges are routinely awarding huge sums to political
figures who claim that media coverage -- or in the recent case
of the Prime Minister, a cartoon-- has offended their dignity
(ref d). Chief Justice Harabin -- despite strong opposition
from his colleagues on the Supreme Court -- recently placed
himself on the appellate panel for the Specialized Court against
Corruption (whose predecessor he worked ceaselessly to abolish).
The new court appears to be withering on the vine, as the
Justice Ministry (which we have heard from several sources is
still run by Harabin) is cutting its resources and defense
attorneys question its constitutionality and refuse to show up
for proceedings.




3. (C) Meanwhile, notorious former PM Vladimir Meciar
(HZDS Chairman) is proposing a variety of legislative and
administrative changes to ensure that the judiciary is
controlled by HZDS allies will into the future, even if HZDS
doesn't make it into the next government (or parliament -- a
real possibility). Justice Minister Viera Petrikova, Harabin's
schoolmate, has drafted legislation that would allow individuals
to bring claims to the Constitutional Court. Even those legal
experts who argue that such legislation could be seen as an
expansion of citizen's rights acknowledge that in the current
context, this move is more likely about making it easier for
those whose cases are pending before the Specialized Court to
file claims against its constitutionality. In fact, the
attorney for one the most infamous Meciar-era crooks, Jozef
Majsky, publicly expressed his appreciation for the Ministry's
proposal. As former Justice Minister Lipsic recently put it,
the Mafioso in Slovakia are rejoicing at these developments.
They should be: more and more, what passes for justice here
appears to be on their side. End Introduction and Summary.



The Purge Continues

--------------




4. (U) As we reported shortly after Harbin's election
(ref b),it was widely expected in judicial circles that there
would be a purge of those judges who had spoken out against his
election. Since then, three of these judges, including two
well-respected former Chief Justices, have been suspended or are
under investigation. Others have received intimidating letters
suggesting that they would be targeted for unspecified
wrongdoing. In the case of Supreme Court Justice Pavel Paluda
and Regional Court Justice Jana Dubovcova, the charges do not
stem from any misconduct in the course of duty, but accusations
that they have breached a judge's unwritten obligation to
refrain from statements or actions that could affect the respect
and dignity of another judge, or endanger public trust in the
independent judiciary.




5. (U) Also in Harabin's line of sight are his two
immediate predecessors, former Chief Justice Karabin and acting
Chief Justice Majchrak, who served as interim Chief Justice in
2003, after Harabin's installation was blocked by a lawsuit that
was upheld by the constitutional court. During Majchrak's
tenure, several reforms that Harabin had fought were put into
place, including an electronic system for random case
assignments to miminize corruption and conflicts of interest.
(Note: according to a recent expose in the economic weekly
Trend, the head of the office which manages the supposedly

BRATISLAVA 00000413 002 OF 004


random electronic case assignment and 12 members of his staff
were recently fired. Harabin is said to have the password to
the system, and the ability -- with the help of newly-hired and
pliant staff -- to access and tamper with it undetected.)




6. (U) More recently, Majchrak was one of six judges to
publish editorials in Slovak weekly Tyzden arguing against
Harabin's election. The proximate cause of Majchrak's
suspension was his participation in a three-person panel dealing
with the prosecution of alleged underworld figure. Due to a
failure on the part of the panel's chair-- not Majchrak -- to
file paperwork, the suspect was released from custody. Majchrak
learned about his suspension from the media.




7. (U) In Karabin's Case, Harabin threatened in a
television interview shortly after his election that `the
criminal prosecution should be interested in Karabin because
invoices totaling 17 million crowns were missing' from the
period of his tenure as Chief Justice. (Comment: as far as we
can discern from talking to multiple reliable sources, the
charge is not credible.) During the same interview, Harabin --
defying all notions of judicial decorum -- accused the NGO Fair
Play Alliance, which led the campaign against his election, of
fraud and suggested that prosecutors `follow the activities of
this organization.' He also called the Vice Chair of the Law
Department at the Slovak Academy of Sciences a liar, because he
had questioned the legitimacy of Harabin's election to his
current position because 8 of the 18 members of the body which
elected him (the Judicial Council) were either directly
subordinate to Harabin or had been appointed by him.



How to Deal with the Crisis

--------------




8. (U) Everyone expects the purge to continue, but
despite the anxiety this knowledge engenders, more judges are
speaking out and actively considering how to fight back against
the inequities -- and some say, illegalities -- in the judicial
disciplinary system and the blatant -- and some say,
unconstitutional -- nature of Harabin's continuing power grab.




9. (U) However, judges with whom we have spoken are
divided about how to address the deepening crisis. This split
was clearly illustrated in the refusal of a leading reform
judge, Jana Dubovcova, to sign a recent `open letter' (emailed
to INL/C and CE) from 15 judges to Slovakia's top officials
expressing concern about the increasing misuse of disciplinary
proceedings as a tool to punish judges critical of Justice
Harabin. Dubovcova stated in an op-ed that there is no point in
appealing to the President, the Prime Minister or the Judicial
Council, because they have repeatedly demonstrated -- through
their steadfast support for Harabin -- where they stand.
Instead, Dubovcova called on other judges to protest against
what one commentator calls Harabin's effort to `pull the
judiciary out of the constitutional and democratic system.'




10. (U) One day after Dubovcova's commentary was published,
she learned that a disciplinary action would be filed against
her `for her public statements.' On September 25, the media
confirmed that Dubovcova is facing removal from the bench for
"intentionally violating fundamental obligations of a judge to
refrain from any acts in his/her civic life that could impair
the authority and dignity of a judge's function." We
subsequently learned from Dubovcova that not only is she facing
sanctions, but that she was suspended immediately. The
suspension order, signed by Justice Minister Petrikova, sites
Dubovcova's call on members of the Judicial Council not to elect
Harabin as Chief Justice as one of the reasons for her immediate
suspension. As of today, Dubovcova will be permitted to enter
the court only to gather her personal belongings, after which
she is banned from the premises. Her salary will be reduced by
30-50 percent.




11. (U) In contrast to Dubovcova, some of the country's other
top judges have told us that given the current balance of power,
there is no point in doing anything now other than `trying to

BRATISLAVA 00000413 003 OF 004


survive decently.' According to these voices, until there is
another `reform' government in place that is willing to make
significant changes in the judiciary, there is no point in
appeals or protests or tinkering on the margins with training or
judicial exchanges. They argue that the prospect of legislative
remedies under the current Smer/SNS/HZDS coalition is
non-existent.




12. (U) Despite the difference in opinion and the relatively
small number of Slovak judges who are willing to speak out, the
brutality and transparency of the ongoing purge has captured the
growing attention of MPs, NGOS, the media and foreign embassies.
There have been at least small acts of resistance even among
the governing coalition to Harabin and Meciar's attempts to
concentrate even more power in the hands of HZDS appointees.
Most recently, Vladimir Meciar's attempt to nominate 10
candidates to fill the disciplinary senates was not approved by
Parliament and consideration of Harabin-drafted legislation to
strengthen his position, that of Chairman of the Judicial
Council, at the expense of the Justice Ministry was postponed
until the October session of Parliament.




13. (C) Although we have been told by Smer MPs that they are
uncomfortable with Harabin, they don't seem willing to do more
than throw minor or temporary roadblocks in his path. According
to an MP who participated in a September 16 meeting of
Parliament's constitutional committee convoked by opposition
members to discuss the misuse of disciplinary actions against
judges, Smer and other coalition MPs appeared not to know about
the cases, and moreover did not want to discuss them. Smer MPs
accused the opposition of `overdramatizing' the situation, and
claimed that systemic problems cannot be deduced from just a few
cases. (Comment: we are aware of at least 12 cases of
disciplinary actions which appear to be inconsistent with the
law. Of these, seven judges were immediately suspended from
function. End Comment.) In a recent meeting with FM Lajcak,
Charge raised concerns about the judiciary. FM Lajcak responded
that his information came from the Slovak media, which he dubbed
`horrible.' He added that although he is not personally a
Harabin fan, he is probably not as bad as the media makes him
out to be. No one in the coalition is willing to acknowledge
the depth of the problem, let alone tackle it.



Time to Act

--------------




14. (U) Former Justice Ministers and opposition MPs Lucia
Zitnanska and Daniel Lipsic, however, have begun to formulate
proposals to reform the judiciary. Lipsic suggests public
participation in the election of judges and members of the
judicial councils, so that these individuals are accountable to
the citizenry. In Zitnanska's view, the problems run so deep
that what is needed -- in addition to new legislation and rules
governing the work of the judicial council and disciplinary
senates -- is a wholesale cleaning out of the judiciary. One
mechanism for achieving this goal would be the creation of a
fund that would be used to buy out senior (read:
unreconstructed) judges. Early retirement of at least some
judges could pave the way for change.




15. (U) This is a radical solution, but in our discussions
with many judges and those such as Zitnanska, who were the
architects of significant judicial reforms early in the decade,
the fact that this was not done in concert with those reforms
has turned out to be a fatal flaw. Many of the changes which
were put into place to minimize corruption and improve court
efficiency, e.g., random electronic case assignments, the
creation of a special court against corruption, and the
reduction of the number of small courts, have been undone or
undermined during the last three years. Furthermore, the very
reforms called for by the European Union and other to foster the
independence of the judiciary are now being misused by those who
originally opposed them to create a third branch which is not
only independent, but also unaccountable and untouchable.




16. (U) In addition to Zitnanska and Lipsic's increasingly
vocal efforts, leading NGOs, including the Open Society
Foundation, Transparency International, and Via Iuris are

BRATISLAVA 00000413 004 OF 004


working on projects to bring to the public's attention the
problems in the judiciary and to promote expert dialogue on
potential solutions. Embassy Bratislava is supporting several
of these projects with small grants from our Public Affairs
funds. We have already heard from several U.S. and other
foreign investors that deficiencies and corruption in the
judiciary are a serious concern. Thus, we have a very immediate
reason for seeking creative ways -- with few financial
resources-- to promote improvements in the Slovak judicial
system.



Comment and Conclusion

--------------




17. (C) We do not use the word `purge' lightly. But we and
other like-minded diplomatic missions have been repeatedly
shocked by the blatant misconduct of the highest officials in
the judiciary and the acquiescence, if not active support, of
the current political elite in this abuse their power. The UK
Ambassador (please protect) will be speaking with members of the
UK Judiciary and the Foreign Office about the situation during
consultations in London next week. Slovakia is a NATO Ally and
a member of the EU. As such, it expects to be treated with the
respect that derives from these associations. We are Slovakia's
partner in NATO and a long-time supporter of its democratic
transition and development. Although we may no longer have the
carrots and sticks that we possessed as Slovakia worked toward
accession to key Euro-Atlantic institutions, we do have the
right as fellow members of these organizations, e.g., the UN,
OSCE, OECD, and GRECO, to ask that Slovakia make a good faith
effort to adhere to its international rule of law commitments.




18. (C) High-level government corruption, such as we have
witnessed here in recent years, combined with the evisceration
of the judiciary, is undermining Slovakia's reputation as a
reliable partner. If past experience is a guide, PM Fico will
be reluctant to take any strong steps against Harabin. We can
only speculate what sway Harabin and Meciar hold over Fico and
Co. But, for whatever reasons, to the detriment of Slovakia's
citizens and its Allies, they appear to have a lock-grip on the
institutions entrusted with upholding rule of law.




19. (C) Only significant outside pressure, e.g., from the
European Commission, seems to have any real impact in
moderating the excesses of this government. The Slovaks are
still reeling from the international brouhaha over the language
law, and more and more European media outlets are writing
none-too-complimentary pieces on the country. Meanwhile, as
election season shifts into high gear, the latest polls show
that the preferences of the PM's party have fallen 10 percentage
points. Several analysts attribute the drop directly to
concerns about government corruption and dissatisfaction with
coalition partners SNS and HZDS.




20. (C) Fico is trying, for the sake of appearances, to
demonstrate that he is tough on corruption, e.g., by taking the
Environment Ministry away from SNS. But he has been utterly
silent on the judiciary. His partners, including U.S.
interlocutors need to let him know that we see what is
transpiring and how dangerous it is. This is the only way in
which the nascent coalition of judges, NGOs, MPs and concerned
citizens can have a least some chance of being heard.
EDDINS