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PP RUEHDBU RUEHFL RUEHKW RUEHLA RUEHNP RUEHROV RUEHSR
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P R 081504Z JAN 10
FM AMEMBASSY BRATISLAVA
TO RUEHC/SECSTATE WASHDC PRIORITY 0325
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHSL/AMEMBASSY BRATISLAVA 0384

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 
 
 
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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