HARABIN UNBOWED BY GROWING CRITICISM OF JUDICIARY

C O N F I D E N T I A L SECTION 01 OF 05 BRATISLAVA 000006 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 BRATISLAVA 00000006 001.2 OF 005 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 BRATISLAVA 00000006 002.2 OF 005 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 BRATISLAVA 00000006 003.2 OF 005 ¶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 BRATISLAVA 00000006 004.2 OF 005 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 BRATISLAVA 00000006 005.2 OF 005 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