HARABIN UNBOWED BY GROWING CRITICISM OF JUDICIARY

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SIPDIS

STATE FOR EUR/CE, EUR/PGI, INL/C

E.O. 12958: DECL: 1/8/2020
TAGS: PGOV PHUM KCRM LO
SUBJECT: HARABIN UNBOWED BY GROWING CRITICISM OF JUDICIARY

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CLASSIFIED BY: Susan Ball, Charge d'Affaires, a.i., State.
REASON: 1.4 (b),(d)

1. (U) Summary. Despite a public plea from over Slovak judges
to address problems in the Slovak judiciary, including the
prevalent use of suspensions for judges accused of minor
infractions, and the willingness of key GOS officials to discuss
the judiciary with foreign interlocutors, Chief Justice Harabin
and his replacement at the Justice Ministry, Viera Petrikova,
appear impervious to any and all criticism. From what we can
discern, trends in the judiciary continue to be negative. In
November and December, Post co-financed conferences on the
judiciary organized by NGOs Via Iuris and Transparency
International. These were the first seminars focused on the
judiciary here in years. We believe that the dialogues begun in
these two fora could help frame some potential solutions to the
problems, though any related legislation will not be possible
before the parliamentary elections. In the meantime, this post
and like-minded embassies will continue to raise privately our
concerns with GOS officials, as well as to convey more publicly
the importance the U.S. attaches to a well-functioning, unbiased
and independent judiciary.



Harabin: More Bonuses~






2. (U) On January 4, the daily Sme reported that Chief
Justice Harabin had reportedly been very generous in granting
end of year bonuses to certain judges. While some reportedly
received in excess of 8,000 Euro, others on the Supreme Court
got nothing. Despite Freedom of Information Act requests, the
court refused to provide any information regarding the actual
sums and recipients. Bonuses have long been a tool by which
Harabin cements the loyalty of friends and pliant judges,
punishes others, or rewards himself. In 2001 and 2002, Harabin,
as Chief Justice of the Supreme Court awarded himself 400,000
and 600,000 SKK respectively. Last year, immediately after the
Specialized Court began operation, Minister Petrikova (on
Harabin's order, we are told) moved to reduce the salaries of
the Specialized Court judges. This is illegal, and after a
short time the salaries were readjusted, with the Ministry
claiming that the problem had been `technical.' Shortly
thereafter, we learned that Harabin's friend and deputy at the
Justice Ministry, Daniel Hudak, had received so much in bonuses
in 2009 that he was the highest paid government official in the
country.



~And More Damages




3. (U) December 24, the Slovak media reported that Chief Justice
Harabin was seeking 200,000 Euro -- not from the media, as per
his usual practice -- but from the General Prosecutor, Dobroslav
Trnka. The two have locked horns on occasion, most notably
over the transcript of a recording of a friendly conversation
between Harabin and Baki Sadiki, alleged by several European law
enforcement agencies to be the head of an Albanian heroin
trafficking ring.




4. (U) The publication of the transcript, and Harabin's
multiple lies and feints in response, led to an opposition
attempt to recall then-Justice Minister Harabin. At the time,
Harabin tried to cast doubt on the veracity of the transcript by
claiming that Trnka could confirm that it had not come from the
prosecutions files. Trnka instead publicly confirmed just the
opposite. Although neither the Prosecutor's office nor Harabin
have confirmed the basis for Harabin's request for remuneration,
sources have told the media that it is for damages to Harabin's
reputation as a result of the leak of the transcript. (Comment:
Given Harabin's past attempts to extort payment from media
outlets, this strikes us as credible.)



Judicial Independence: When it Suits




5. (U) Only once in recent months has the Justice Ministry
backed down in response to public or political outcry over
unjust treatment of certain judges. In October, the head of the
Banska Bystrica court informed Judge Jana Dubovcova that as a
result of her public criticism of Stefan Harabin and the state
of the judiciary, he was launching disciplinary proceedings

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against her, to include immediate suspension. Within 24 hours
of Dubovcova's receipt of the papers confirming this, the head
of the court asked that his complaint be withdrawn because,
according to him, the opposition was exploiting her case to
attack the government. The Ministry acceded to his `request.'




6. (C) It was clear to most informed observers that the Prime
Minister himself was likely behind rescinding the charges
against Dubovcova. MOI Kalinak later told DAS Quanrud and
Charge that he had so advised the PM. That the 24-hour farce
put a lie to oft-repeated mantra of `judicial independence'
seems to have escaped the players. So, too, did Justice
Minister Petrikova's response to news that one of Harabin's
closest associates, Judge Sorocina, had been found by the
Constitutional Court to have violated a citizen's rights by not
deciding his case for over twelve years. In response to a
question from the media, Petrikova stated that she would review
the matter and if Sorocina had not properly carried out his
function he would face consequences, unlike `Judge Dubcovova,
who has also caused delays and the Constitutional Court has
decided against her, but she will not face disciplinary
sanctions because she is being protected by media and
politicians.' We have confirmed that the Constitutional Court
has made no such finding regarding Dubovcova's performance. To
our knowledge, no action has been taken on the complaint against
Sorocina.




7. (C) Similarly, Chief Justice Harabin seemed not to care
that his recent visit to the parliamentary office of his patron,
Vladimir Meciar, might create the appearance of inappropriate
contact between the Chief Justice and the head of the political
party who had appointed him to the Justice Ministry. Harabin
claimed he was there to discuss the Justice Ministry's draft law
on judges. This explanation was met with skepticism, since the
governing coalition had already agreed that no action would be
taken on it during the current government mandate and, at this
point, Harabin was no longer a Ministry official. However,
we've been told by a senior Justice Ministry employee with an
almost-decade long tenure at the Ministry, that she now `has two
masters,' referring to Harabin and Petrikova. Judges in the
Supreme Court corroborate that Harabin remains in the driver's
seat at the Ministry, another blurring of judicial and
governmental power.



This Year's Meme: A `Political-Media' Plot




8. (U) In a January 1 interview, Justice Minister Petrikova
characterized the activities of dissatisfied judges as a
`political-media' plot timed to unfold ahead of the
parliamentary elections with great support from the third
sector. `The main players are given great space in the media,
whereby truth and the essence of the problem are not explained.
A picture is created of a division of judges among the honest
ones and the others.' We have begun to hear a similar refrain
from GOS officials and ministers in response to any criticism,
i.e., it's an opposition-media driven tactic to earn votes. On
January 4, President Gasparovic was quoted in the daily Sme
observing that `judges today have no problem to decide freely,
independently and quickly.' At the same time, Gasparovic was
critical of the participation of `politicians, journalists or
political scientists' in discussions about the judiciary.
Judges should do their work, and nothing, according to
Gasparovic needs to be changed.




9. (C) Prime Minister Fico's response to the appeal by more
than 100 Slovak judges to support changes in the judiciary has
been similar. He has alternatively stated that this is an
internal affair for judiciary to resolve itself or that the
complaints are the work of under-performing, disgruntled
jurists. Other than his alleged intervention in the Dubovcova
case -- another example of how Slovak politicians are willing to
interfere in judicial matters if it suits them-- Fico seems
content to let Harabin run roughshod over both judges and
justice.





Fico's Calculus


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10. (C) As reported reftels, Charge and separately EUR DAS
Quanrud have spoken about the state of the Slovak Judiciary with
Interior Minister Kalinak and Foreign Minister Lajcak.
Kalinak, in particular, claims to be concerned about problems in
the sector, but has argued that there is little the government
can do about it. FM Lajcak, meanwhile, listened without
comment, as Charge provided specific examples of cases,
particularly disciplinary actions, that were of concern to this
and other Embassies. That Kalinak and Lajcak have raised the
issue with U.S. officials -- and have acknowledged that they are
hearing about the issue from other partners -- suggests a
growing awareness that Harabin's judiciary could damage
Slovakia's reputation abroad. The question is whether Fico will
conclude that it is in his interest to address in an election
year a problem he has yet to acknowledge and about which most
citizens seem unaware.




11. (C) In recent months, we have seen glimpses of Fico's
political prowess in his handling of rule of law/corruption
related issues. The opposition has pounded the government on
these topics, as well as on the judiciary. First, he made a
great show of stripping the corrupt Environment Ministry from
the Slovak National Party, then he abruptly fired the
Smer-appointed leadership of the Slovak Land Fund for
non-transparent dealings. This week, PM Fico announced with
great fanfare that he intends to push through a law on the
`origin of property,' that would force not only suspected
criminal figures, but officials and politicians to provide
convincing proof that they obtained their property legally.
Thus, if a Member of Parliament's property vastly outstrips his
declared salary, he would be compelled to explain the difference
and be subject to financial penalties if he failed to do so.
After having taking no meaningful action for three years -- in
fact, Smer deputies blocked several attempts by opposition
parties to address the issue-- the Prime Minister's 11th hour
announcement calls into question his motivations.




12. (C) This law is anathema to Fico's soon-to-be-former
coalition partners, Vladimir Meciar and Jan Slota, whose vast
wealth remains unexplained. Thus, Fico would be forced to rely
on opposition parties to pass the law and the needed change to
the Constitution. Law or no law, Fico wins. If Fico's draft
passes - no matter if it as flawed as some experts argue -- he
can posture as a champion of transparency. However, If the
opposition refuses to play ball, it will be blamed for impeding
progress in the fight against corruption for craven political
reasons.




13. (C) Regarding the judiciary, Fico must reckon with
potentially more complex factors. First, there is
circumstantial evidence to suggest that it is not only Meciar's
allies who benefit from the Harabin-led judiciary, but also
those of the Prime Minister -- not to mention the Prime
Minister himself, whose growing string of high-value libel
victories is impressive. One example is the case of the
Pezinok dump, in which the Constitutional Court overruled a
decision by the Supreme Court to suspend construction that had
been illegally approved. According to well-informed sources,
the Constitutional Court made its ruling before it even obtained
the case file and then refused to share its decision with the
town. On the basis of the decision, the dump owner, an
individual with close ties to Smer and some of its key backers,
has been transporting waste to the dump daily since October. An
aside on the Pezinok case: Interior Minister Kalinak reached out
to the Pezinok activists to offer his `assistance' after the
Constitutional Court ruling. Coming as it did in the run-up to
the regional elections, it seems that Smer wanted to dampen bad
publicity. In the end, nothing came of Kalinak's offer, just as
nothing came from Deputy Prime Minister Caplovic's public
declaration, immediately after assuming temporary responsibility
for the Environment Ministry, that no dump would be built in
Pezinok.




14. (C) On the other hand, given the low esteem in which the
judiciary is generally held (the recent Pew Global Survey
indicated that only 5 percent of Slovaks agreed that the Slovak
Judiciary was fair and impartial),it would not be unreasonable,
from a political standpoint, for Fico to maintain his current
hands off stance. At this point, the Prime Minister will parse
any moves on the judiciary through the lens of the upcoming
elections, pursuing only those that might take the wind out of

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the opposition's sails. Given what we have heard from Fico,
Gasparovic, Harabin and Petrikova so far, we are not hopeful
about the prospects of any meaningful steps in the short term,
since any criticism, no matter how justified, is framed as
politically motivated and inappropriate interference. There
is, however, one potentially damaging exception. In December,
Justice Minister Petrikova convened an `expert working group' to
discuss problems in the judiciary. According to the Minister,
the most serious problem in the judiciary are delays in closing
cases. Thus, she has concluded (like Harabin before her) that
Slovakia needs more judges and a more streamlined process for
disciplining judges who do not work with sufficient dispatch.



More Judges?






15. (C) Delays in court proceedings are indeed a serious
problem in Slovakia, but according to many legal experts, the
solution is not more judges, but rather more support staff,
better administrative procedures and more, not less,
specialization. Slovakia currently has 1315 judges for a
population of approximately 5.5 million. Many Slovak judges
argue that half that number would be more than sufficient, given
the right conditions. Two hundred new judges have been brought
into the system over the past three years in a process critics
describe as non-transparent and non-merit based. We've heard
from judges that new recruits -- in many cases relatives of
sitting judges or HZDS members -- are made to understand that
they owe their positions to certain individuals, e.g., court
heads, and should act accordingly. One recently accepted
judge-candidate is none other than Chief Justice Harbin's son,
Branislav. Although he may be well-qualified, the fact that the
panel that selected him was led by a close ally of Harabin - she
owes her position to him -- casts doubt on the impartiality of
the process. To bring in hundreds of new judges under the
current circumstances, according to many legal scholars and
jurists, would be to distort an already deformed system further.



Very Small Glimpses of Progress




16. (C) Meanwhile, the trendlines remain negative -- more good
judges are being targeted in a variety of ways -- from
disciplinary proceedings to transfer of judges from their area
of expertise to other subjects with which they have no
experience. At the same time, many of these judges find that
while their case load increases, their staff support is cut.
As in the case of respected former Constitutional Court Justice
Babjak (a dignified sextegenerian, who together with his wife
-- also a judge -- is among the most renowned critics of the
Harabin regime),such conditions inevitably lead to delays.
Babjak inherited the caseload - over 33,000 pages -- of a
notoriously eccentric and dithering judge, in addition to his
own. Despite multiple appeals to the chief of his Court about
the delays that would be created by this untenable situation, no
relief was forthcoming. Disciplinary proceedings against Babjak
for the delays were initiated in December.




17. (C) Another disturbing pattern about which we are reading
more is the release from custody of suspects - including in
cases of violent crimes -- against whom the prosecution
maintains it has made a good case. One notorious example is
that of former SiS agent and murder suspect, Tomas Hrbacek.
More recently, almost all of the suspects in a case in which
riot police were found to have been providing security services
for a bordello, have been released on minor bail. The bordello
is owned, as it happens, by a company linked to none other than
Hrbacek. Also, we have seen judges summarily suspended after
they have ruled or are deemed likely to rule against the
state's interest, e.g., in the Transpetrol case.




18. (C) Despite the bleak picture, there has been more
discussion and activism within and about the judiciary in the
last year than there has been for a long time. In addition to
the two conferences mentioned above -- which gathered Slovak and
foreign legal experts, judges and lawyers -- and provoked very
thoughtful and sometimes tense discussions -- judges themselves
are increasingly active. In the last few months, Slovak judges
have met with representatives of the International Judges

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Association, former Czech President Vaclav Havel, the Chief of
the Czech Constitutional Court, Pavel Hollander (a Slovak by
birth) and others who might provide guidance and assistance. At
the same time, some judges have begun working more closely with
NGOs and other outside experts. This has been a difficult step
for many judges, who are naturally disinclined to "air dirty
laundry" and who, justifiably, worry about the proper way for a
judge to express dissent.




19. (C) In addition to the `Five Sentences,' judges are
speaking out on websites devoted to judicial issues, e.g.,
`sudcovia.sk' and the weekly magazine Tyzden's website. Members
of Parliament -- from the opposition, that is -- are developing
legislative proposals that would, among other things, change the
structure of the Judicial Council (which elects the Chief
Justice, among other functions),the selection process for the
council, the mandate of the Chief Justice, and impose
requirements for greater transparency on the judiciary. These
will be dealt with, if at all, after the 2010 elections. Other
diplomatic missions in Bratislava are becoming more engaged in
the issue and, we are told by our UK colleagues, EU
representations in Brussels are focus more closely on reporting
out of Bratislava. Meanwhile, however, all ten candidates
proposed by Vladimir Meciar to serve on the disciplinary senates
were approved by Parliament; the alternative candidates put
forward by the opposition had no chance. Thus, Meciar and
Harabin's grip on the judiciary at all levels remains strong and
will for some time to come.
BALL