Disciplinary procedure against JUDr. Ing. Miroslav Gavalec

President of the Supreme Court of the Slovak Republic

Supreme Court of the Slovak Republic
as the disciplinary court
Zupne nam. 13
Bratislava

06.08.2010

To file: 1Ds 1/2010
Re: Disciplinary procedure against JUDr. Ing. Miroslav Gavalec opinion to the position of the judge,
modification of the disciplinary motion

Opinion of JUDr. Ing. Miroslav Gavalec of 9 July 2010 to the call of the disciplinary court of 28 June 2010, file 1 Ds 1/2010, again does not include relevant facts and material arguments that would doubt reasons of the filed disciplinary motion. Discussions with colleagues – judges on suitability or not suitability of solutions to the premises, absence of effective air-condition, etc. started already after take over of the construction, they continue until today and probably would continue until the whole premises in the building belong to the Supreme Court of the Slovak Republic or until the Supreme Court moves to another suitable building.

JUDr. Ing Gavalec is probably not informed about the activities of the management of the Supreme Court aimed to solution of the mentioned problem. He also purposely ignores that the solution of the mentioned problems is inseparably connected with high financial coverage. However, finances are not available and we miss money for other socially more demanding needs (such as health care, education, science, social expenses, etc.).

On the other hand he diminishes what was possible to do and was made and finds it not systematic. Maybe he does not know that also increase of the number of court staff is possible only if there are available financial means for their wages.

As far as his (own) training concerns, I refer to the statement of 23 March 2010. In connection to his extra-work activities I only mention that one thing is the theoretical activity and the other is application capacity in court practice. This is what JUDr. Ing. Gavalec misses.

In part III of his position of 9 July 2010 he only confirmed the above statement as he has not finished reading the whole provision of § 42 of the Act on Courts. If he did so, he could not state that the Chairman of the Court acted thoroughly and in accordance with the law, and thus breached his basic obligations defined in § 42 (1) (2) of the Act 757/2004 Coll.  § 42 (3) of the Act states:

“(3) The Chairman of the Court is obliged to observe fulfilment of the obligations of the judges defined by this Act and by special Acts and in the case of reasoned suspicion of their infringement, he is obliged to take measures necessary for finding out the facts, removing found insufficiencies and impose disciplinary responsibility or criminal responsibility.“

The fact that JUDr. Ing. Gavalec has application problems based on the inability to interpret provisions of the Act is documented also by the above motion, in which he asks the disciplinary court to terminate this procedure pointing out the provision of the Criminal Court Rules. Because “according to § 215 (1) b) of the Act 301/2005 Coll. Criminal Court Rules, a prosecutor terminates criminal procedure if the action (of the criminal procedure) was not a crime and there is no reason to submit the case.“ And he adds: “The disciplinary prosecuted judge insists on this ...“

The reason to terminate the criminal procedure pursuant to § 215 (1) b) of the Criminal Court Rules is the fact that “this action was not a crime and there is no reason to submit the case.“ The disciplinary prosecuted judge asks for this procedure probably because of the provisions of § 150 (2) of the Act 385/2000 Coll. on Judges and Lay Judges as amended according to which “a disciplinary procedure is adequately governed by provisions of a special law (Criminal Court Rules) unless defined otherwise in this Act or results from nature of the case.“

“This Act, i.e. Act 385/2000 Coll. on Judges and Lay Judges defines differently termination of a disciplinary motion (without oral hearing). That means that a disciplinary motion can be terminated only according to this provision of this Act. Application of the procedure defined in § 150 (2) of the above Act and discontinuation of a disciplinary procedure according to § 215 (1) b) of the Criminal Court Rules is excluded.

The disciplinary prosecuted judge should know this if he knew the Decision of the Constitutional Court No. PL.US 7/02, and mainly in this situation this should be fully clear to a judge and to a chairman of an administrative senate.

JUDr. Ing. Gavalec also after filed disciplinary motion continued his politically motivated activities, for instance declaration to suspended sickness bonus for the judge Marta Laukova (11 May 2010), Call Appeal to the Members of the Judicial Council of the Slovak Republic and the Courts Chairmen Courts (25 July 2010) and he uses ungrounded, demagogic and untrue statements. Medialisation of such activities significantly helps to create bad and untrue view on Slovak judiciary as a whole. Such unobjective view not corresponding to reality on the situation in judiciary was taken by many politicians, among them also by the Minister of Finance. And he mainly influences financial policy also related to judiciary, regarding financial means for judges´ wages, and also financial means for investments for improvement of premises, purchase of computers, air-condition, etc. In the provoked and nourished atmosphere negative for the courts as a whole and especially for the Supreme Court (the disciplinary prosecuted judge helped with his untrue statements), hardly can be expected a positive approach to judiciary and allocation of needed financial means. The whole judiciary  pays for this situation.

The disciplinary prosecuted judge and the chairman of the senate of the Supreme Court of the Slovak Republic until now has not understood and he does not want to understand that a judge (judge of the Supreme Court) is bound in his civil and also working life not only by laws – including the Constitution of the Slovak Republic and the International Treaties in range of Article 7 (2) and (5) of the Constitution, but also in his professional and also civil life by Codes of Ethics that define requirements for behaviour of a judge in his working and also civil life.

Due to the above facts I modify the disciplinary motion and I do not propose “replacement to a lower level court“ (according to § 117 (5) a) of the Act 385/2000 Coll. on Judges and Lay Judges as amended) but I propose to impose JUDr. Ing. Miroslav Gavalec according to § 117 (5) c) of the above Act the disciplinary measure “removal of his judicial position“.

JUDr. Stefan Harabin

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