Strasbourg, 1 February 2006
Consultative Council of European Judges (CCJE)
Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of the Slovak Republic
CCJE(2005)29 Rev – Questionnaire on “ The role of the judges in striking a balance between protecting the public interest and human rights in the context of the fight against terrorism”
of the Slovak Republic
We implement the annually approved Plan of Centrally Organized Departmental Education of Judges in the Slovak Republic. This plan is drafted by the Ministry of Justice of the Slovak Republic, in cooperation with the Judicial Academy of the Slovak Republic, and it is then approved by the Judicial Council of the Slovak Republic. In 2005 the Judicial Council, besides other actions, participated in programme designed for judges, such as: a seminar on aspects of penal law of the Convention on Human Rights, with focus on the case law of the European Court for Human Rights, seminars devoted to the delivery of subpoenas and production of evidence, to selected problems and resolutions concerning recognition of judgments in matrimonial, commercial and civil matters, in accordance with resolutions of the EU, then seminars specializing in international law, in rudiments of law of the EU, proceedings in front of the European Court of Justice, a seminar on protection of the person in connection with the Convention, and case law of the ECHR, and a seminar specializing in the European law of the Slovak Republic. Fifty judges of the Slovak Republic participated in each of the seminars. The total number of judges of the Slovak Republic is 1,260.
All judges are receiving the Collection of Legal Acts of the Slovak Republic, further they have at their disposal the Official Journal of the European Communities /2005/C 143/01/ concerning submitting of motions concerning launching of prejudicial proceedings by the national courts, and all the judges have at their disposal also the case law published in the journal Judicial Revue. The judges have the above mentioned sources available also in the form of CD- roms (in electronic form).
The judges of the Slovak Republic have the possibility to participate in courses of foreign languages which are being provided by the Judicial Academy of the Slovak Republic.
The judges have the possibility to use interpreters within the framework of proceedings in front of courts of the Slovak Republic.
Slovak Republic doesn’t approved any special measures to enhance dialogue between the national courts and the European Courts. Training of judges in Slovakia in particular area is provided by permanent training within the programmes of Judicial Academy of the Slovak Republic.
The Slovak Republic participates in events organized by the ECHR, a delegation of judges from the Supreme Court of the Slovak Republic and from the Constitutional Court of the Slovak Republic participated in a meeting held at the ECHR in 2004.
In our basic State law, in the Constitution of the Slovak Republic, there has been a provision since the establishment of the Slovak Republic that stipulated that international treaties on human rights and fundamental freedoms take precedence over the laws of the Republic, in case they safeguard a greater extent of fundamental rights and freedoms.
Since 2001 the Constitution of the Slovak Republic has been even more extended by its amendment, stipulating that international treaties that directly constitute rights or obligations of natural persons or legal entities take precedence over the laws.
The Slovak courts decide in accordance with the case law of the ECHR, but also in accordance with the Convention and Recommendations of the Council of Europe.
The judges of the Slovak Republic already when being appointed to their office and when taking their oath in front of the President, undertake to be regulated by the Constitution, constitutional laws and international treaties.
Such a provision is not specifically stipulated in the laws of the Slovak Republic.
It depends on the specific case - whether the specific court would not apply such a provision, and in case it would be applied by the court, the recourse is admissible, and it is possible to appeal to the Constitutional Court of the Slovak Republic.
The rule of law of the Slovak Republic does not allow for a direct reopening of a court process, but it is possible for the plaintiff to appeal against such a final decision, addressing this recourse to the Constitutional Court of the Slovak Republic, due to the fact that there were violated fundamental human rights stipulated in the Convention on Human Rights and Fundamental Freedoms, and the Constitutional Court may declare such a decision for null and void (overrule it) and remand the case so that new proceedings have to be launched, and it can award to the plaintiff appropriate compensation about the amount of which decides the Constitutional Court at its own discretion.
Respect of human rights in the struggle against terrorism was transposed into the Penal Act and the Code of Criminal Procedure of the Slovak Republic, in accordance with the conventions and recommendations adopted by the Council of Europe in prevention of terrorism and struggle against it, and respect of human rights.
For example Article 5 of the Council of Europe’s Convention for the Prevention of Terrorism was transposed in such a way that we have a regulation in the Code of Criminal Procedure stipulating that the Slovak Republic refuses to extradite to another State an individual, who could be persecuted due to reasons like race, religion or nationality or political opinions, or due to the fact that his/her status could create prejudice, due to the above mentioned reasons.
In case of suspicion from the criminal offence of terrorism, there are regulated special forms of detection of criminal activities in the Code of Criminal Procedure, for example seizure of consignments, opening of consignments, replacement of content of consignments, controlled delivery, pretended transfer, monitoring of individuals and of things, recording of visual, audio or audio-visual recordings, tapping of and recordings of telecommunication operation, and the use of an agent. As this is an infringement of fundamental human rights and freedoms, the approval of the prosecutor is requested before launching the criminal persecution and before the preparatory proceedings, and the approval of the judge presiding over the panel of judges is necessary in case of court proceedings. In the most serious forms of the mentioned infringements the approval is given by „the judge for preparatory proceedings“. This is a special institute for safeguarding human rights within the preparatory proceedings. The decision is always made on the basis of a request of a body involved in preparatory proceedings. This judge, with respect to the same case, is excluded from participation in the decision–making on the case itself. The procedure of this judge is regulated by § 10, paragraph 3 of the Code of Criminal Procedure.
In case of suspicion from the criminal offence of terrorism, or its preparation, it is being proceeded literally in accordance with the Act of Police Corps, and in the later stage in accordance with the Code of Criminal Procedure. There are stipulated requirements concerning protection of human rights in both these Acts, including the European Convention on Protection of Human Rights and Fundamental Freedoms. That means that there is respected the right of the suspect in connection with liberty, in accordance with Article 5 of the mentioned Convention and the right to a fair trial, in accordance with Article 6 of the mentioned Convention. The stated provisions of the Convention are reflected within the full extent in the Code of Criminal Procedure, in the Act on Advocacy, and in the Act on Police Corps.
A regulation was adopted in the field of rights of immigrants that the courts decide with respect to their possible remedies against the decisions of the Immigration Office.
Dr. Milan Karabín
Member of the CCJE