Draft Legislation to Ensure Public Scrutiny of Judges (SK0114)

• Lessons from Reformers: Judicial Officers - Appointment and Accountability (December 1, 2020)

In its Government Manifesto, the Government of the Slovak Republic pledged to increase the public control of the judiciary by introducing measures to ensure that the selection of the heads of courts, judges and judicial staff is transparent from the beginning to the final decision on personal selection, reinforcing the objective elements in the selection process, so that in the selection of the heads of courts and judges also includes persons outside the judicial environment.
Commitment No. 57: In a participatory manner, prepare draft legislative changes to ensure greater public scrutiny of the election of the heads of courts, judges and judicial staff and present them to the Govern-ment.

THEME - Improve judiciary

Comm 53, 54, 55, 56, 57

Language of the commitment as it appears in the action plan^{[Note : The Office of the Plenipotentiary, “Open Government Partnership National Action Plan of the Slovak Republic 2017 – 2019”, http://bit.ly/2QYIlHV ]}:

Commitment 53: “Reassess the implementation of the publication of assessments of judges in terms of the clarity and making further analysis easier.”

Commitment 54: “Specify which court decisions do not need to be published.”

Commitment 55: “Specify the types of submissions that are appropriate to formalize, design standardized forms for selected submissions, and publish the standardized submissions electronically at the website of the Ministry of Justice of the Slovak Republic, the central public administration portal and the Slov-Lex legal and information portal.”

Commitment 56: “In a participatory manner, prepare draft legislative changes to determine the authority to supervise the fluency of disciplinary proceedings and to ensure a rigorous, swift and effective application of the disciplinary responsibility of judges and submit them to the Government.”

Commitment 57: “In a participatory manner, prepare draft legislative changes to ensure greater public scrutiny of the election of the heads of courts, judges and judicial staff and present them to the Government.”

Start Date: Not specified  

End Date: 30 June 2018 and ongoing 

Context and Objectives

The commitments in this cluster aim to improve judiciary from different perspectives. As the previous IRM report highlighted the Slovak population does not trust in the independence of judicial decisions^{[Note : Mária Žuffová, Open Government Partnership, “Slovakia Special Accountability Report 2014 - 2015”, http://bit.ly/2EzH4Ws]}. The commitments on the judiciary to address this and other problems first occurred in the second action plan^{[Note : The Office of the Plenipotentiary, “Open Government Partnership National Action Plan of the Slovak Republic 2015”, http://bit.ly/2RevqCc]}. Two commitments addressed an inconsistent publication of judicial decisions, with the aim to identify the key problems in publishing judicial decisions and propose a uniform system for publishing them. However, progress was limited. Therefore, commitment 54 to specify which judicial decisions need to be published and which do not, as well as commitment 55 to determine what types of submission should be formalized are carried forward from the previous action plan. Commitment 54 relates to access to information, as it contributes to a more consistent approach to the publication of judicial decisions and determines the level of information provided on court decisions. However, commitment 55 is not relevant to open government, and therefore is coded for no potential impact. As written, it is an inward-looking commitment, which might potentially improve internal procedures within courts. The Ministry of Justice has established an analytical center to tackle this and other similar data problems^{[Note : The Ministry of Justice, “Analytical center”, http://bit.ly/2QP6JPD (in Slovak) ]}. It has also created a working group during the implementation of the second action plan, which comprised CSOs which regularly comment on the judiciary. 

Another critical point of the judiciary system that was first brought up in the previous IRM report was the way judges are being evaluated^{[Note : Mária Žuffová, Open Government Partnership, “Slovakia Special Accountability Report 2014 - 2015”, http://bit.ly/2EzH4Ws]}. Both public servants and CSOs criticized a lack of external professional but also a public element in evaluations. Thus, the quality and objectivity remain an issue. A commitment on improving the assessment of judges was formulated in the 2016-2020 Government Manifesto^{[Note : The Government Office, “The government manifesto”, http://bit.ly/2cceHdN (in Slovak).]}. The Ministry of Justice was supposed to prepare a legislative proposal to enable publication of judges’ evaluations to fulfil it. However, the commitment was extended due to the parliamentary elections in 2016 – a time in a political cycle when chances for legislative changes drop significantly^{[Note : Ibid.  ]}.

Commitment 53 to reassess the implementation of the publication of judges’ evaluations was also important. However, some CSO representatives argued that the evaluations of judges should be a managerial tool for the governance of judiciary rather than an accountability tool for the public^{[Note : Pavol Žilinčík (The Judicial Council and Comenius Uniersity), E-mail conversation, 30 October 2018. See Section ‘VI. Methodology and sources for details.}

Interview with Samuel Spáč (Masaryk University and Comenius University, previously TI Slovakia), 23 June 2016. See Section ‘VI. Methodology and sources for details.    ]. The CSO representatives interviewed for the previous IRM report also suggested that selection procedures, as well as disciplinary procedures, need to be changed^{[Note : Mária Žuffová, Open Government Partnership, “Slovakia Special Accountability Report 2014 - 2015”, http://bit.ly/2EzH4Ws ]}.

Commitments 56 and 57 reflect these suggestions and have a potential to increase public scrutiny of the selection procedures and effective application of the disciplinary responsibility of judges. As these commitments are expected to be realized in a participatory manner, they also could contribute to greater public participation. However, as indicated above, some CSO representatives expressed doubts whether internal procedures such as selection and disciplinary procedures should be a part of the OGP commitment. Commitment 57 to draft legislation to make selection procedures more transparent is particularly important and has the potential to improve the current practice substantially. Via Iuris, a renowned CSO, which has monitored the selection procedures for the heads of courts, judges, and judicial staff for years, regularly concluded that there is nepotism in the judiciary, as candidates with family ties in the judiciary are more likely to be selected^{[Note : Kristína Babiaková, “Výber sudcov na Slovensku” (Selecting the judges in Slovakia), Via Iuris, http://bit.ly/2EKklVH (in Slovak)]}.   

Next steps

TI Slovakia has concluded for the mid-term self-assessment report that while some decisions were taken to determine which judicial decisions should be published and which should not, for the commitment to have an impact, the courts, in particular, its administrative staff responsible for the publication of judicial decision must be aware of these recent changes. Therefore, awareness-raising activities and training for public servants is crucial.        

As for commitments 56 and 57, CSO representatives argued that it should be reconsidered whether the improvement of internal procedures within the justice system should be a part of open government.