The judge of the Bratislava District Court, Juraj Kapinaj, who sent into prison four NAKA investigators (Ján Čurilla, Pavel Ďurek, Štefan Mašin and Milan Sabota), is suspected of having committed the crime of bending the law.
As the judge of the Regional Court in Bratislava, Peter Šamko and portal pravnelisty.sk, the case is being investigated by NAKA Stred, “but still by NAKA, a police force that also includes accused investigators, which in itself hardly convinces an objective observer that the investigation could be impartial.”
Šamko demonstrates bias or misunderstanding of the crime of bending the law at the request of the investigator addressed to the court, which asked for the waiver of the judge’s duty to remain silent.
As he notes, the investigator sent a request to the president of the regional court, although Kapinaj is a district judge. The investigator therefore requested “to release Judge Kapinaja from the duty of secrecy due to his hearing in the procedural position of the suspect for the proceedings and the decision on the prosecution of the accused and in these proceedings the notifiers (investigators) Mgr. J. C., Mgr. P. D., Ing. PS and JUDr. WITH. M., the manner and course of the proceedings as a pre-trial judge as well as the reasons for the decision to take him into custody… “
Šamko writes that according to the investigator, the judge should be released from the duty of secrecy for the entire duration of the criminal proceedings. He should comment on all the facts with which the appointed judge “became acquainted in the performance of his duties as a civil judge”. At the same time, Kapinaj did not decide on detention in civil proceedings.
As Šamko further points out, “the investigator wanted to question the judge as a suspect before the prosecution began”. Kapinaja also wants to ask about the reasons for the decision that the investigators are going to custody.
“I do not want to touch anyone, but legally it is a nonsensical request. However, the case material, in this case the minutes of the interrogations of the accused persons, which took place after the prosecutor’s motion to take the accused into custody (from which it is clear how the judge in the particular case proceeded) “speaks” about the manner and course of the proceedings. Šamko explains that the reasons for the judge’s decision are still mentioned in the resolution itself on taking the accused into custody.
Therefore, the judge “has nothing to say about the manner and course of the proceedings in a particular case.” According to Šamek, the investigator should have secured the file and the decision. “A judge is not here to additionally explain in his statement to the investigator, or the manner of his reasoning or action (for example, why he decided to take him into custody and not not to take him into account, etc.), or to subsequently finalize his decision on other or other reasons, ”explains Šamko. He adds that it is not the role of the judge to argue with the arguments of the four investigators or to convince them that the arguments are incorrect.
If Šamko had been the chairman of the Bratislava District Court, NAKA Stred would certainly not comply with the investigator’s request. According to him, he did not give any serious reasons for non-disclosure. In addition, he asks what he should find out himself by studying the file and the judge’s decision, but not by questioning Kapinaja.
While the district judge took the four investigators into custody, the Court of Appeal – in this case the Bratislava Regional Court – released them from custody. Thus, courts of different levels may have a different view on a particular matter and thus may change the first instance decisions.
“The fact that this happens does not in itself give rise to any suspicion of a criminal offense or other unlawful conduct, as the judge cannot be punished for expressing a legal opinion, or the threat of disciplinary or criminal proceedings cannot be intimidating the judge to: he was afraid to decide, or to decide according to certain (for example, police) ideas, “points out Šamko.
In application practice, it really happens that the court of appeal or the court of second instance has a different view on the issue of detention than the court of first instance. “Will the police now investigate any annulment of a decision annulled by a court of second instance? And will it also investigate as a suspicion of the crime of abuse of power by a public official any resolution of the investigator that will be annulled by the prosecutor in the appeal proceedings? Or will she selectively investigate only those that suit her? ”Šamko asks questions.
He adds that the annulment of a decision of any institution by a superior body in an appeal procedure is not a criminal offense, as it is a situation which the legal system itself presupposes.
And he explains that the blame for bending law can only punish arbitrary decisions without legal support, not decisions that are, for example, marked as incorrect due to a misinterpretation of a legal norm, or due to another evaluation of the evidence performed.
NAKA Stred reminds the investigator that the criminal notification procedure does not replace the corrective procedure, nor is it a procedure that is naturally a follow-up to the corrective procedure, in which the investigator is to act as the judge’s superior body and find out his reasons outside the decision itself.
Šamko writes that the introduction of the crime of bending the law was already accompanied by doubts whether it would not be used to bully judges and whether it would not serve to prevent the police (instead of refusing a criminal report) simply because they did not identify with a particular judge’s decision. “Punished” the judge for his conduct or legal opinion.
The regional judge thinks that these concerns prove to be justified so far. “It will be necessary to get used to the ‘wrong’ decisions (legal opinion) of judges will be criminalized through this provision, or the conduct of criminal proceedings for this crime will be instructed by the police on how to imagine ‘correct’ interpretation of the law, ‘correct’ decision-making courts and how judges should certainly no longer rule ”.
“Shouldn’t the judge, for sure, first consult his future procedure and decision-making process with the police? And in general, shouldn’t the police directly replace the courts when making decisions? ”Šamko asks that the Judicial Council should also comment on this situation.
Four investigators are being prosecuted for abuse of power by a public official and the crime of obstructing justice. They had to manipulate the testimonies of witnesses. Although they are still being prosecuted, they are seeking compensation for the time they have spent in custody.
Source: Pravda – Správy by spravy.pravda.sk.
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