issued by the Registrar of the Court

ECHR 425 (2012)

20.11.2012

Slovak Constitutional Court failed to address in detail doubts as

to impartiality of its judges in disciplinary proceedings against

Supreme Court President

In today’s Chamber judgment in the case of Harabin v. Slovakia (application

no. 58688/11), which is not final¹, the European Court of Human Rights held,

unanimously, that there had been:

a violation of Article 6 § 1 (right to a fair trial) of the European Convention on

Human Rights.

The case concerned the imposition of a disciplinary sanction on the President of the

Slovak Supreme Court for having prevented an audit at that court, and in particular his

complaint that several of the judges who decided his case were biased.

The Court held in particular that only after establishing whether or not the challenges to

the judges’ participation in the proceedings were justified could the question have arisen

as to whether there was any justification – namely the need to maintain the Slovak

Constitutional Court’s capacity to determine the case – for not excluding them.

Principal facts

The applicant, Štefan Harabin, is a Slovak national who was born in 1957 and lives in

Bratislava. He has been the President of the Slovak Supreme Court since June 2009

(after having previously held this office between 1998 and 2003) and he was the

Minister of Justice of the Slovak Republic between July 2006 and June 2009.

In July and August 2010, Mr Harabin prevented a group of auditors instructed by the

Minister of Finance from carrying out an audit at the Supreme Court, the aim of which

was in particular to examine the use of public funds, the efficiency of financial

management and the elimination of shortcomings identified in a previous audit. Mr

Harabin informed the Minister of Finance that the Ministry lacked the power to carry out

the audit and that it was the Supreme Audit Office which had the authority to do so.

In November 2010, the Minister of Justice initiated disciplinary proceedings before the

Constitutional Court against Mr Harabin for having prevented the audit. During the

proceedings, the Minister of Justice challenged three constitutional judges for bias, on

the ground that they had had a personal relationship with Mr Harabin for several years

and that they had been nominated to posts in the judiciary and public administration by

the same political party.

Mr Harabin challenged four different constitutional judges for bias. He argued in

particular that two of them had made negative statements about him in the media, that

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

a third judge was a member of the same chamber as those two judges and that a fourth

judge had been convicted of a tax offence and had been criticised by Mr Harabin for

ignoring an invitation by the Constitutional Court to reconsider his position as a judge. In

reply to that objection, neither of the judges considered themselves biased and, in May

2011, the court decided not to exclude any of the seven judges from dealing with the

case. The fact that four of those judges had previously been excluded from other sets of

proceedings involving Mr Harabin could not affect that position. The court noted in

particular that the determination of the disciplinary offence allegedly committed by Mr

Harabin was within the exclusive jurisdiction of its plenary session, and considered that

excessive formalism posed the risk of rendering the proceedings ineffective.

On 29 June 2011, the Constitutional Court found Mr Harabin guilty of a serious

disciplinary offence, holding in particular that he had prevented the group of auditors

from carrying out an audit at the Supreme Court on four occasions, and imposed a

disciplinary sanction on him, which consisted of a 70% reduction of his annual salary.

Complaints, procedure and composition of the Court

Relying on Article 6 § 1, Mr Harabin complained that the proceedings before the

Constitutional Court had been unfair, alleging in particular that a number of the judges

who decided on the case had been biased. He also made a number of other complaints

under Article 6 § 1, including that the court had erroneously interpreted the relevant

provisions as to what the elements of a serious disciplinary offence were. He further

made a number of other complaints relating to the proceedings and the sanction

imposed, invoking Article 10 (freedom of expression), Article 1 of Protocol No. 1

(protection of property), Article 13 (right to an effective remedy) and Article 14

(prohibition of discrimination).

The application was lodged with the European Court of Human Rights on 20 September

2011.

Judgment was given by a Chamber of seven judges, composed as follows:

Josep Casadevall (Andorra), President,

Egbert Myjer (Netherlands),

Nicolas Bratza (United Kingdom),

Corneliu Bîrsan (Romania),

Alvina Gyulumyan (Armenia),

Luis López Guerra (Spain),

Nona Tsotsoria (Georgia),

and also Santiago Quesada, Section Registrar.

Decision of the Court

Article 6 § 1

The Court underlined that it was not its task to examine whether Mr Harabin had been

justified in not allowing the auditors of the Ministry of Finance to carry out the audit. Its

task was exclusively to determine whether his rights under the Convention had been

complied with in the proceedings before the Slovak Constitutional Court in which he had

been sanctioned for a disciplinary offence.

The Court further stressed that it was particularly relevant that the guarantees of the

right to a fair trial under Article 6 were complied with in proceedings initiated by a

Government against a judge in his capacity as president of the Supreme Court, given

that the confidence of the public in the functioning of the judiciary at the highest national

level was at stake.

Under Slovak law, disciplinary proceedings against the president of the Supreme Court

could only be decided by a majority of the plenary of the Constitutional Court. Faced

with a situation where the parties challenged seven of its thirteen judges for bias, the

Constitutional Court had had to balance between two interests, namely the need to

respond to the requests for exclusion of those judges and the need to maintain its

capacity to determine the case.

The Court [the European Court of Human Rights] considered that in that balancing

exercise the Slovak Constitutional Court had failed to take an appropriate stance under

Article 6. Firstly, two of the judges challenged by Mr Harabin and two of the judges

challenged by the Minister had been excluded in earlier set of proceedings involving Mr

Harabin. Given that doubts were therefore likely to arise as to their impartiality, the

Constitutional Court should have – but had not – given convincing arguments as to why

the challenges could not be accepted in the disciplinary proceedings. Secondly, the

Constitutional Court had not taken a stand as to whether any of the other reasons

evoked by the parties would have justified the respective judges’ exclusion.

Only after answering the parties’ arguments and establishing whether or not the

challenges to the judges were justified could the question have arisen as to whether

there was any proclaimed need and justification for not excluding any of the judges. The

need to maintain the Constitutional Court’s capacity to determine the case could

therefore not justify the participation of the judges in respect of whose alleged lack of

impartiality the Constitutional Court had failed to convincingly dissipate doubts.

Mr Harabin’s right to a hearing by an impartial tribunal had therefore not been

respected. There had accordingly been a violation of Article 6 § 1.

Having regard to that conclusion, and considering that it had only limited powers to deal

with errors of fact or law allegedly committed by national courts, the Court did not find it

necessary to examine separately Mr Harabin’s other complaints relating to the alleged

unfairness of the disciplinary proceedings against him.

The Court further declared Mr Harabin’s other complaints inadmissible, as they were

either manifestly ill-founded or he had failed to exhaust the domestic remedies in their

respect.

Just satisfaction (Article 41)

The court held that Slovakia was to pay Mr Harabin 3,000 euros (EUR) in respect of non-

pecuniary damage and EUR 500 in respect of costs and expenses.

The judgment is available only in English.

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