Editor’s Note: Today we publish the 2016 Report on Slovak constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Tomáš Ľalík, Associate Professor, Comenius University, Kamil Baraník, Assistant Professor, Comenius University, Šimon Drugda, LLM Candidate, Nagoya University
I. The Constitution and the Court
Slovakia became independent in 1993, with the peaceful dissolution of the Czech and Slovak Federal Republic. Its Constitution, adopted already in 1992, fashioned a parliamentary model of government and constitutional supremacy. It divides the state powers between the National Council (NC), a unicameral legislature composed of 150 MPs; the government; the presidency; and the judiciary.
An amendment to the Constitution in 1999 introduced direct election of the president to the initial design. However, it is the government that wields most executive powers and bears the responsibility for their exercise to the NC. The Constitutional Court of the Slovak Republic (CC) is the principal guardian of the Constitution (Art 124). A special body, the Court is separate from the general judiciary.
The Constitution can be amended by a qualified majority of 90 MPs, whereby the NC turns into the constitution-maker. The Constitution has already been changed 16 times since its adoption, with the last direct amendment adopted on March 30, 2017. Most of the amendments were fairly inconsequential, but a few managed to stir the institutional equilibrium: the introduction of the popular presidential election (1999); a major pre-EU constitutional overhaul in 2001; establishment of the Judicial Council to enhance the independence of the judiciary (2001); or the introduction of Ombudsman. These changes had important knock-on effects that still resonate within the fabric of Slovak constitutional law. The practice of constitutional government was not yet “liquidated” at the end of the millennium, and relationships especially within the executive, between the directly elected president and government of the time, proved to be problematic. The CC oft needed to guard and interpret the Constitution in conflicts, as well as mediate between the political branches at the same time.
The CC was established to serve as the last check in constitutional disputes. It wields powers to 21 different types of proceedings (the newest one is to review executive pardons; March 2017 amendment). The Court hears cases in the plenary sessions, or in one of its four three-member Senates. The most prominent of the Court’s powers is an abstract constitutional review. The Court acts as the Kelsenian negative legislator (Art 125) to review parliamentary legislation against the Constitution and its material principles. Second, the CC is the ultimate interpreter of the Constitution in interpretive disputes (Art 128), thereby, perhaps, acting as the “junior” partner of the constitution-maker. Both constitutional interpretation and review are vested in the Plenum and enjoy generally binding effect (erga omnes). The Senates conduct the concrete review in cases of alleged violation of individuals’ constitutional rights (Art 127).
The CC normally seats 13 judges, appointed for non-renewable 12-year terms (Art 134). The NC nominates a double number of candidates for each vacancy on the Court by a simple majority, and the president then selects and appoints one of the two nominees. But even this relatively straightforward process became a source of serious tension between the NC and president. The ongoing conflict (see the 2015 YiR report) has left the Court incomplete for well over two years.