Rozhovory.sk, 30.10.2012 EN full

Advokátka Jana Martinková - Attorney-at-law (lawyer), der Rechtsanwalt - Advocatus Martinková s. r. o.
Attorney Jana Martinková: I believe the citizens are not just plush toys in the government’s hands

Already in the beginning of arbitration proceedings HICEE (Penta) against the Slovak republic she foresaw Slovakia’s success, despite the professional public being of a different opinion. Beside providing complex legal services, she deals with the health insurance companies’ legislation and protection of foreign investments with connection to international arbitrations. We were talking to attorney Jana Martinková about the issue of health insurance companies.

It is usually more the dream of men than women to be a lawyer. Why have you chosen this profession?

Because I let myself be led by ideals and belief that I shall be close to justice. I have never only wanted to be a lawyer, I see advocacy as a noble synthesis of logical and combinational deduction, ability to analyze disparate structures, to create the decisive aspects also from seemingly unimportant details and the power to make little details into decisive factors and all that freely without any instructions “from above”. The only welcome restriction is the law.

How were your beginnings?

Full of dedication, enthusiasm and belief that the good and justice shall win. Despite I’m not anymore in the beginning, some ideals still last.

Women are generally perceived as “those weaker” – has it happened to you that someone “underestimated” you as a woman – attorney?

I frequently meet people who allow themselves be carried away by prejudices and endeavor to categorize people according to misleading and shallow criteria, including gender or physical appearance. From this point of view I therefore equally often encounter initial underestimation which I actually welcome, as it can be of advantage not only for the attorney, but also for the client.

When can you refuse to represent a client?

Beside cases when an attorney is obliged by the law to refuse the representation of a client, I also do not take over the representation in cases when the client asks me whether I have a contact for the judge.

The law is not so much about emotions – but anyway – what are the feelings after a lost dispute of which you have thought from the beginning was “yours”?

The law maybe isn’t about emotions, but disputes sure are. Attorneys say: “No dispute is so good it couldn’t be lost and so bad it couldn’t be won.” And it isn’t only about circumstances laying in the attorney’s abilities. It must be realized that an attorney goes into a dispute mostly only with their client’s “truth”, the outcome is therefore to great extent influenced by the level of their mutual openness and communication. In the ideal case the counterparty can not catch you unprepared and you are ready for almost everything. And if you’re lucky and get an independent judge, you cannot be disappointed.

Minister of Justice – so he claims – wants to de-politicize the justice system. Do you feel that it presently would be under political influence? Better said, how does it manifest in the practice…?

I would very much like to say that the justice system as one of the branches of the power is immune against political pressures and power combats. The entire society is however on playfield of political and economical interests and the justice system is not only a part, but also a mirror of this society. Sadly, judicial decisions are a strong bait not only for economical groups that aim their “business” in this way,  but also means of intensifying of the political and economical power. The more I do respect and honor every judge who didn’t make compromises when dealing with this inside conflict and managed to keep the basic standards of professional ethics, morals and credible identity of their profession.

The Parliament adopted an amendment of the Advocacy Act that among other things prolonged the attorney clerks’ practice from three to five years. Do you consider this change necessary?

I don’t doubt and I welcome endeavor towards improving of quality of the provided legal services, albeit the prolonged practice may in many cases mean more of a formal than real criterion. Not all clerks are lucky enough to get to work with a wide spectrum of legal branches, not only depending on the line of work of their employer. Some are “doomed” to more or less merely enforce commercial liabilities at their mentor’s, or respectively they only do partial actions in several disputes, so they can not get practical knowledge regarding leading of a dispute from its beginning until its end. One can only hope, that the provided obligation to administer daily records of the clerks’ practice with minimal content requirements will not stay only on the formal level  and that there will be also much more conceptual legislative steps following, that this time around will really solve the real problem, which is unsustainable over-pressure of the legal profession in Slovakia. I don’t think it’s fortunate that there are seven legal faculties with doubtful accreditation. Twenty years ago there have been two, accepted have been really outstanding candidates and the quality of education was not comparable with the present one.

Many lawyers have political ambitions. Are you not tempted too?

I stated in the introduction that in my life I let myself be led by ideals that in our politics are long dead. I personally think that politics is tempting mostly to two types of lawyers. Those who have chosen their profession only with a vision of above-standard income and after having achieved these, they started also lusting after power. Then those who see in the state administration certain security. A scarce fraction are those who have become lawyers out of belief of existence of a chance to make this world a better place  and who entered the politics following the same belief. Slovak politics is not friendly to the latter, so I don’t have any ambitions of this kind.

Your name is also being associated with health insurance companies. What do you think of Minister Zvolenská’s gesture, when she came to the cabinet’s session with a plush sheep?

I believe the citizens are not only plush toys in the hands of the government and I hope that nobody thinks there is room for humor within the making of a legislation framework that will have impact not only on the health and lives of five million people, but also on their economical situation in the years to come.

Chairman of the Slovak Medical Chamber thinks that plurality of health insurance companies has made the healthcare system more expensive and creation of a single insurance company shall bring a stable financial system?

Just as it has been important to me years ago (when 99% of the public manipulated by the media has approved of the health insurance companies’ right to profit just as in any other case of any other entrepreneur) for the people to realize that health insurance is not entrepreneurship in the sense that the health insurance companies are merely carrying out administration of public funds following a statutory mandate and the public funds from the insurance premiums do not become their ownership to be able to create an unreasonably big profit;  it is important to me now for the people to not only blame the health insurance companies, or their profit, respectively, for the situation in the healthcare. They cannot be blamed for the plurality system not having brought positive outcomes in the administration of the public funds. It must be  understood that the single responsible subject here is the state as the creator of the entire system, or respectively the government and legislator. If the healthcare professionals like to draw attention to themselves by comparisons with animals, I could also put it this way: Who would blame a dog for having eaten a chicken if his long chain allowed him to get into the henhouse? Is the dog to blame, or is it the owner (state), who hadn’t shortened his chain? In 2004, the legislator created a long chain for the insurance companies and a short and easy access to the chicken (maybe intentionally, maybe as a result of negligence). In 2007, the owner (legislator) closed the henhouse in such a way that almost nobody could get inside and neither the dog, nor the owner had profit of it. Today, after the henhouse having been opened again, the legislator aims to kill the edacious dog instead of first shortening his chain and replacing him with a lazy dog who probably wouldn’t get into the henhouse even without the chain.

Are you implying that a single and state-owned health insurance company won’t bring an improvement in financing of the healthcare system?

I am a bit skeptical regarding this issue and I believe that the public has demagogical and inappropriate anticipations from this change. A change of plurality system towards unitary system on the one hand does sound grand, mainly for the frustrated citizens who also after the increasing duties’ burden have no prospect of a higher-quality healthcare. However, this change is not coming in the right time, further more, even a creation of a single health insurance company alone won’t lead to a more efficient use of public funds, not to mention the direct and indirect costs in hundred-millions amounts that this step will bring. I’m asking, where do people get the certainty that insurance in the sole hands of the state will mean an effective administration, even with a profit that shall be given back into the system. Let’s have a look at the present economical results of the state-owned insurance company, the state-owned healthcare facilities etc. I do not have anything against the existence of a single health insurance company, but also despite Slovakia priding itself of being a state of law, most of the state officials and civil servants do not carry out their responsibilities on a professional level identical to more developed European countries and their motivation towards effectiveness is disputable.

You have always been a critic of the private health insurance companies’ profit, have you changed your mind?

I have not, I’m only pointing out that the insurance companies hadn’t created these rules, they’re only making use of the legislative options that administer the running of the public health insurance system. Those must be held responsible, who created the 2004 Act on Health Insurance, those who allowed for a purposeful application of this statute to benefit of the health insurance companies’ profit,  but also those who in the beginning didn’t take any constitutional actions against this inceptive legislation, despite the possibility of being same successful as the deputies with their complaint in 2008;  as well as those who with their amendments always addressed a partial issue without complex legislative changes that would join non-conformal statutes etc. The subject to blame for this situation is the idle legislator who does not forego problems and when addresses them, uses “hammer for delicate jewel maker’s work”. The resulting damages of the legislative “mistakes” are of course borne and will be borne solely by the citizen, because the twenty-year history of Slovakia shows that political responsibility for decisions having a huge negative material impact on the citizens  is only a chimera and material responsibility of state officials only utopia.

However, the government objective of unitization of health insurance says that “an advantage of a monopolistic state-owned enterprise will be that it shall fulfill the state’s obligation following from the Constitution, securing of a free healthcare”.

But this constitutional model can be secured in full extent regardless of the number of insurance companies on the market, without the risk of legal disputes with the insurance companies. I have no idea why the state impedes coherent changes of the already existent statutes that would, in a constitutional manner, not only to the elimination of the insurance companies’ profit, but mainly to an effective exercise of the public health insurance with the objective of achieving a free healthcare;  but on the contrary, pushes through the most expensive and least effective solution. Therefore I start to think that the objective is not the effectiveness of public funds, but solely the political-economical dissolution of connections and influences in the healthcare sector and the revival thereof with new or almost new players.

You have mentioned that expropriation will be associated with direct and indirect costs. Those direct cost are probably compensation to be paid to the insurance companies and the organizational and technical costs. What about those indirect ones?

It would be naïve to think that expropriation, even if accompanies with a certainly considerably high compensation, would not be challenged by the insurance companies and that there would be no legal disputes. Not even compensation would legitimize the new legislation measure which, as it is being presented, does not respect the essence and sense of the basic constitutional rights of private entities, from the point of view of the followed objective (effectiveness of public funds) is not inevitable  or appropriate from the point of view of consequences in regard to the legitimate interests and legally acquired rights of the private health insurance companies and their shareholders. Also, there is a risk of breach of the principle of legal certainty and the principle of proportionality. The condition of public interest may be considered just when the legitimate purpose that is being followed by an invasion into ownership rights can not be achieved by different ways that invade an ownership right less. This means, that the state must select from the several available options for achieving the goal the one that ensures the necessary proportion of the ownership rights of the insurance company’s shareholders and the interests of the state. I have in the past several time specified the existence of more appropriate legal means for achieving the said objective. It cannot be blithely believed that the insurance companies won’t make use of these weak points in disputes against the state. It would be sad, should the welcome endeavor towards effectiveness in the end resulted in waste of public funds for expropriation and for funding of legal disputes.

Do you think that Slovakia does have a chance to win in the arbitration disputes with insurance companies regarding the ban on profit that are currently pending?

In disputes against a state, the crucial question is mainly the one whether or not the state wants to win. Then a realistic professional assessment is irrelevant. Either way there is sufficient argumentation to the advantage of Slovakia, it will mostly be important to which extent the state’s legal representation made use of it. If they were fully committed when going to the second phase of the arbitration proceedings, I have no doubt Slovakia does have a chance to win.

On a bit of a lighter note in the end – how does your family cope with the high work pace you are in?

As my husband and my daughter are very demanding when it comes to my undivided attention, I had to learn to do many things at one time. Nowadays neither one of them realizes when I for instance carry on a parallel conversation with both of them, it’s became so natural. Of course there are moments that I don’t let anyone take away from me, for example being with my daughter until she falls asleep. That time is an absolute taboo, also for my husband.