[Editor’s Note: This is the second installment in our Year-in-Review series, which began earlier this year with the publication of the 2015 year-in-review of developments in Italian Constitutional Law, prepared by Marta Cartabia, Pietro Faraguna, Michele Massa and Diletta Tega. We invite scholars from around the world to prepare similar reports on their own jurisdictions for publication on I-CONnect. We are excited about this series, and we thank Tomáš Ľalík, Kamil Baraník and Simon Drugda for their report on Slovak constitutional law developments in 2015. –Richard Albert]
Background on the Slovak Constitutional Court
The Constitutional Court of the Slovak Republic (CC), with its 13 justices appointed for non-renewable 12-year terms, was established according to the Kelsenian idea of constitutional review conducted by a specialized judicial body.
The CC wields powers in 20 different types of proceedings, and decides cases either in the Plenum or in one of its four three-member Senates.
In 2015, the Court’s docket was flooded by 16,867 applications, of which 15,266 were addressed. The CC decided 90 plenary cases on merits and delivered a further 2157 meritorious judgments in the Senates. This translates to 1388 cases assigned, on average, to a single judge. Despite this backlog and the current understaffed bench (see more below), the Court managed to keep the average length of proceedings to nine months.
The case law of the CC is, regrettably, relatively unknown internationally. This has been exacerbated by the fact that the CC’s judgment summaries have not been continuously translated into English since 2011. The following I·CONnect report attempts to alleviate this informational lacuna.
In contrast to the benchmark year-in-review report of our Italian colleagues, this report introduces the Court’s 2015 seminal judgments to the international audience at quite some length.
This report divides the CC’s 2015 decisions into three categories.
The first focuses on various separation of powers disputes. Notably, this subject involves many aspects of the judiciary, including the powers of the CC itself. Perhaps the most important issue, affecting the CC significantly, involves an ongoing controversy over its composition. The Court has not been at its full capacity of 13 members since 2014. This was further intensified as one justice’s term expired in 2016. Thus, currently there are only ten justices running its bench. The CC has already had two opportunities to address this issue in the recent period, but the matter has remained unresolved for now. Besides that, the Court reviewed the constitutionality of a statutory freezing of judicial salaries in 2015, and also scrutinized the constitutionality of changes in the Judicial Council’s composition.
The second category analyses cases dealing with fundamental rights and freedoms. The “Data Retention” ruling occupies a place of particular importance. The ruling declared unconstitutional the national statutory provisions transposing the EU directive. The Court was in this case undoubtedly influenced by the Court of Justice of the European Union’s decision in the Digital Rights Ireland case. Furthermore, the CC’s rights and freedoms decision-making activity revolves around contentious limitations of social rights. In that respect, in 2015 the CC considered the constitutionality of obligatory work in exchange for allowance in material distress. Another important case involved “tax licences” as minimum tax paid by entrepreneurs/legal entities regardless of their profit or loss in a given year.
The third category focuses on electoral disputes, singling out one representative decision of the last year. In this case many persons, on very short notice before the regional elections, relocated their residencies in order to participate in the ballot. In that way they could influence the entire outcome of the elections. This has been a quite regular and disruptive electoral practice that has raised a vast number of electoral disputes at the local level of governance. The CC seized this opportunity and finally established a legal test of constitutionality for future similar manipulations. The case aptly illustrates the cut-and-thrust of the CC workload in this subject area.
Part I: Separation of Powers (Judiciary)
1. ÚS 45/2015 on Appointments to the Constitutional Court
This case deals with the current constitutional crisis in Slovakia, which is in many aspects very similar to the ongoing crisis in Poland.
In July 2014, the President appointed just one CC justice out of 6 nominees selected by the National Council. He refused to fill two additional CC judgeships as he deemed the other five nominees unqualified even though they met the constitutional and statutory requirements. In doing so he invoked the previous CC’s decision, which empowered the President to reject the Prosecutor General nominee for the reasons that candidate would impair the authority of the institution and his own constitutional duty for due performance of constitutional bodies (PL. ÚS 4/2012). Thereafter, the CC had only 11 out of 13 justices. The refused candidates petitioned the Court. The Senate ruled that their constitutional rights were violated and nullified the Presidential decisions regarding the rejection of their appointments (III. ÚS 571/2014). The Senate found the decision dealing with the appointment of the Prosecutor General inapplicable, because of a different constitutional wording, as well as the different constitutional nature, functions and prerequisites for the office for the CC justices in comparison to the Prosecutor General.
The President, however, did not respect the previous decision (III. ÚS 571/2014) and he requested a constitutional interpretation in regard to his powers to appoint the CC justices. The Court rejected the application on formal grounds. In the reasoning it stated that the issue had already been resolved by the decision III. ÚS 571/2014 and the question about the status of a candidate was resolved adequately in the statutory law. According to the result of the previous decision the President was still obliged to appoint two justices from the pool of already nominated candidates. In the meantime, the term of another justice expired and the National Council nominated two additional nominees for the Court.
Until now the President has not issued any decision on new or previous nominees. As a consequence, the Court has three vacancies, for a total of 10 out of 13 justices. The CC’s capacity has been reduced by at least 25%, as one Senate cannot be formed at all. The CC’s functions have also been circumvented in its plenary proceedings, because a seven-member majority is constitutionally required for rendering a decision on the merits (Art. 131 § 1 in fine of the Constitution). That is hard to attain at the moment and just four judges can now block the plenary decision. The Court is, thus, in an uneasy situation and its functioning is effectively impaired.
2. ÚS 27/2015 on freezing of judicial salaries
Invoking the repercussions of the financial crisis, the National Council statutorily froze the salaries of public officials, including judges. It stipulated that the salaries of judges in 2015 would remain at the same level as in 2012. The same pattern of calculation had been previously used for judicial salaries in 2013 and 2014. The constitutionality of these statutory provisions was challenged.
The issue of judicial salaries had already been discussed before the Constitutional Court in the past. There is therefore a volume of case law in that respect (e.g. PL. ÚS 12/05, PL. ÚS 99/2011).
The Constitutional Court, in the judgment, declared that the challenged legislation concerning the freezing of judicial salaries is contrary to the rule of law, as well as in contradiction to the principle of independence of judges. But the CC developed a test to evaluate the constitutionality of legislation in relation to judicial salaries:
- the interference by a legislator must be sufficiently justified;
- the legislation must be intended for an interim or necessary period;
- the legislation must not be arbitrary.
As for the first criterion the Court stated that judges belonged to a special category of public officials, and enjoyed an increased degree of independence. Moreover, the macroeconomic indicators in the challenged case were not met in order to activate the mechanisms envisaged in the constitutional statute on budgetary responsibility. Additionally, the legislator did not put forward any reasons why the judges must also be affected by the austerity measures given their limited responsibility for the public budget deficit (in contrast to the political branches of the government). Consequently, the legislation could not pass constitutional muster and was deemed arbitrary. When assessing the second criterion, the Court emphasized that the National Council froze judicial salaries for three consecutive years, which certainly could not be considered as an interim, nor necessary period. As regard to the third criterion, the Court concluded that the challenged statutory provisions were arbitrary.
It is to be welcomed that finally the Court developed a transparent legal test that would be used in future (similar) cases and at the same time this test would allow the legislator to adapt and to foresee what must not be omitted when regulating judicial salaries. On the other hand, it is clear that the first and the third criteria are interconnected and most likely there will be no need to use both of them. When there are insufficient reasons presented by the legislator in regulation affecting judicial salaries, such regulation will be arbitrary every time as arbitrariness in general is considered a lack of (sufficient) reasons. Consequently, the third criterion is superfluous.
3. ÚS 2/2012 on the Judicial Council of the Slovak Republic membership
MPs challenged the following principles of the statutory amendment to the Act on Judges:
- The position of the Judicial Council, the highest self-governing judicial body in the Slovak Republic, was allegedly seriously diluted by the empowerment of the Ministry of Justice to prescribe the selection rules for the judges and the chief judges.
- The principle of a proportionate regional representation of judges in the Council (the rule “1 regional appellate district = 1 member in the Council”), in connection with a breach of equality principle in the elections to the Council (in different appellate districts, a different number of votes was required to win the seat in the Council).
- The rule that barred chief judges and their deputies from a membership in the Council.
In the result, the Court:
- Upheld the amendment’s provisions, as it rejected the argument of a superior position of the Council in the selection process of judges and chief judges. It underscored the importance of inter-branches cooperation (i.e. the separation of powers argument). Moreover, it denoted the power of the Ministry of Justice in this process as a generally limited one, restrained by the statutory provisions that remained squarely within the legislative domain.
- Struck down the regional membership principle of the Council as a disproportionate one, contrary to the principle of equal representation. At the same time the Court admitted that the latest constitutional amendment made those statutory provisions already obsolete.
- Upheld the membership ban for the chief judges and their deputies in the Council. The Court stated that the situation, in which the chief judges and their deputies could serve in two different bodies dealing with the administration of judicial power (the administration of the respective court, as well as the Council’s membership), might raise a serious conflict of interests and independence doubts.
The practical consequences of the decision are still far-reaching and not quite resolved. Especially regarding the third issue. Nowadays 7 out of 18 members of the Council are still incumbent chief judges of the respective courts. They have been signalling a tacit resistance to the decision and unwillingness to step down either from the Council, or their chief judgeship.
Part II: Fundamental Rights and Freedoms
1. ÚS 10/2014 on the obligation for providers of public communications networks and services to retain data on electronic communication
A group of 31 MPs challenged several provisions of:
- the Act on Electronic Communications, which required the internet providers and the telephone operators to retain data concerning communication of their users – notably data of the communicating parties, traffic, duration and location data; and
- a related provision of the Criminal Code and the Police Force Act, which governed data access for the law enforcement authorities.
The CC held that the impugned provisions infringed on the rights of citizens to privacy and personal data, and ran contrary to both the Constitution and the ECHR. This decision was delivered a year after the CJ EU invalidated the Data Retention Directive 2006/24/EC, in C‐293/12 Digital Rights Ireland and 594/12 Seitlinger and Others. It was substantially founded on the reasoning of the CJ EU.
In a politically savvy and well received judgment, the CC applied the strict test of proportionality to the retention scheme. It ruled that while the State did not per se follow an illegitimate aim, the rights and freedoms of citizens were disproportionately interfered with, albeit at the pretext of security in combating serious crime. The CC further engaged in a dialogue with the political branches, suggesting that in tailoring of a new legislation it was necessary to ensure that:
- as opposed to a general data retention scheme only an individual data freeze could be implemented, limiting the collection of data to a specified user;
- the technical safeguards for data protection, collection and handling are sufficient to prevent unauthorized access by a third party;
- only data related to a serious crime category, in which the important public interest prevails, is kept (the CC alluded to the standards comparable to those applicable to the wiretapping);
- the content requirements of an application for purposes of collecting communication data are to be prescribed, so the courts can decide on all relevant information available (without jeopardizing the criminal proceedings).
2. ÚS 8/2014 on the obligation to work for receiving allowance in material distress
The parliament in 2013 modified the statute on the allowance in material distress. It had introduced a precondition that beneficiaries of allowance in material distress have to work at least 32 hours a month to be eligible for the allowance in the amount of 61,60 €. The beneficiaries could choose whether they would perform (i) voluntary work, (ii) a simple communal service or (iii) an emergency situation service. MPs challenged such legislation claiming that the beneficiaries, who would not perform such service would receive no allowances, which would impair their right to receive the allowance according to the Art. 39 § 2 of the Constitution. Moreover, they employed the discrimination argument of beneficiaries by communities, which obtained the power to organize and distribute work, thereby creating two groups of beneficiaries (one group will have to work and the second will not be obliged and yet receive the allowance).
The Constitutional Court ruled that such provisions were neither in violation of the right to receive the constitutional allowance, nor were they discriminatory. Regarding the former it stressed:
- a subsidiary nature of duty to work in the communities, since the beneficiaries could perform a volunteer work instead;
- simple communal services as obligatory work were perceived as a tool for social inclusion, a source of usefulness and of value for beneficiaries and communities alike;
- availability of other social benefits for beneficiaries in case of refusal to work;
- a wide margin of appreciation by the legislator to limit the social rights;
- a range of exceptions for those beneficiaries, who did not have to work and would still receive an allowance based on age, health, care for family members etc.
The provision was not discriminatory either because a differentiation is only a consequence of the application of norm in question, but not the criterion for distinction. In other words, both categories of beneficiaries (those obliged to work and those that are not) were for the purpose of statute a homogeneous group. Therefore, there was no distinction between those groups as such.
3. ÚS 14/2014 on tax licences
In 2013 the National Council introduced a so-called tax license for the entrepreneurs – corporations. This regulation introduced the obligation to pay a minimal tax (“tax license”) for the legal entities in three categories (from 480 € to 2880 €). The tax license payment could be deducted from the “real” tax that a corporation is obliged to pay in the following three years of its activity in case when the real tax exceeds the tax license payment. The main aim of the legislation was to fight tax frauds, because more than 60 percent of all entrepreneurs-legal entities in Slovakia pay no tax at all. A group of MPs challenged legislation arguing a violation of constitutional protection and promotion of economic competition, a violation of the right to entrepreneurial activity, and finally discrimination between the entrepreneurs – natural persons and the entrepreneurs – corporations, since the first group was exempted from the obligation.
The CC, however, did not find any violations of constitutional provisions. As far as the protection and promotion of economic competition were concerned, the Court emphasized that the applicants did not substantiate the argument and did not offer any comprehensive information of how this legislation could impair the economic competition, especially in the spheres, in which public and private interests always collide. Besides that, the constitutional Article 55 (2) protects an objective constitutional norm and not a fundamental right or freedom. With regard to the subjective right to entrepreneurship the Court stated that the right belonged to the social rights group, in which the legislator enjoyed more discretion, as it was in case of the civil and political rights. At the same time there was no exclusivity, nor no-regulation zone when entering entrepreneurship and legislation provides for some limitations (various licences, fees etc.) so tax license payment is another limitation when entering the market. Moreover, the Constitution has never promised to shield unsuccessful entrepreneurs against their possible losses. When limiting the subjective right in question the Court used a rational-basis test and concluded that the provisions had legal basis, pursued the legitimate aims, were not excessive for entrepreneurs and did not violate equality. In respect of alleged discrimination, it stressed the fact that the majority of entrepreneurs-natural persons are self-employed persons, who are the most vulnerable group by far and, therefore, a distinction made by the legislator is neither arbitrary nor unjustified.
The fate of the tax licenses is still unclear though, because notwithstanding their conformity with the Constitution, the new government formed after the elections in March 2016 had promised their abolition. Such a declaration even found its place in the government program.
4. ÚS 53/2015 on the Slovak Bar Association admission’s educational requirement
The Prosecutor General challenged the amendment to the Act on the Legal Profession. It introduced inter alia a new bar association acceptance requirement, according to which it was necessary to obtain both bachelor and master law degrees to be eligible for the admission to the bar. The legislator justified the new heightened threshold by the general public interest for better qualified lawyers admitted to the bar as the bar lawyers protect individual rights and freedoms together with the principle of justice in society. The new legislation, however, created a burden for the lawyers in their bar apprenticeship period, who otherwise fulfilled all previous requirements for being admitted to the bar, but obtained only a master law degree and not a newly introduced bachelor one. The applicant believed the amendment had retroactive effects, breached the legal certainty principle, the legitimate expectations, as well as constituted an undue legislative intervention into individual constitutional freedom to choose the profession.
In the decision the Court deferred to the National Council’s right to heighten the bar admission criteria via the legislative process. Especially, when it dealt with the public interest at stake. The presence of the public interest precluded arbitrariness of the legislation in connection to the constitutionally guaranteed freedom to choose the profession. Additionally, the Court emphasized that the transitional period of statutory provisions was intentionally very long (almost 2 years). Thus, then-bar apprentices, even without bachelor law degrees, had enough time to finish their bar apprenticeship period and to become the members of the bar. Those bar apprentices without both required law degrees, who commenced their apprenticeship period only after the adoption of the amendment, must have been fully aware of their ineligibility to be admitted to the bar association ultimately. Thus, neither their legitimate expectations nor their constitutional rights could not be violated.
Part III: Electoral Disputes
1. ÚS 68/2014 on domicile registering in communal elections
Prior to a mayoral election 119 residents suddenly registered their domicile in a sparsely populated village, so they could participate in the upcoming election. This constituted a 33% increase of its inhabitants, just two days before the polls opened. The CC considered a challenge to this election’s result.
As this practice had been quite common, the CC seized this opportunity to establish a legal test for future electoral disputes. The general question concerned was whether a significant number of new domicile registrants, in immediacy to the election, could compromise the integrity of a ballot.
First, the Court invoked a tenet that “representative bodies of local self-government ought to reflect the will of its inhabitants, who share a common, mutual will to form an integral community of this unit.” Second, the CC emphasized that only in exceptional cases will it examine the underlying motives for a domicile registration, which otherwise forms an integral part of their right to decide freely on the place of their residence. Namely when a chain of intricate “social processes” (e.g. a sudden outburst of domicile registrations prior to a ballot) of such a magnitude occurs that has a potential to interfere with the election result. Finally, the CC established a cumulative test, holding that such situation could arise during an otherwise perfectly legal process: (i) a significant number of inhabitants would register their domicile in a commune; (ii) who would not hold a relation to that commune; and (iii) whose domicile registration would take place immediately before the election.
The CC applied the test to the case at hand finding that:
- the 33% increase of eligible voters within the election district was able to affect the election result and, therefore, constituted a significant number of new domicile registrants (this condition resembles the Canadian “magic number” test);
- the new registrants had either a property in the commune (the economic ties), other private law relational ties to the commune (the family relationships), or an active participation in its social and political life before the election;
- even though the domicile registration of 119 citizens occurred just two days prior the elections, the CC found that fact ultimately irrelevant, since the second condition of the test was not fulfilled.
The Court then returned to the formulation of an “otherwise perfect legal process” with one final qualification. Circumstances of gross, serious breach, or a repeated violation of law in the election process have also the potential to substantially affect its course, or outcome, and would therefore justify invalidation of election result.
Part IV: Trends in the Case Law and What to Expect
What broader trends could be taken from the recent Court’s case-law? The first emerging sign is relatively new; it delineates an increasing number of cases which cut deep into the domain of the judiciary. This has three reasons. First, in 2014 the government launched a program to reform the “least dangerous” branch, as the judiciary had enjoyed a very little degree of confidence in the public for some time. Second, the recent constitutional amendment empowered the President of the Judicial Council to challenge such reforms before the CC. Third, some segments of the reform might be perceived as excessive, aimed at hollowing out the principle of judicial independence.
These three reasons were accumulated in the pending constitutional challenge to the new security clearance scheme for judges and judicial candidates, colloquially known as “preconditions of judicial abilities” (PL. ÚS 21/2014). The scheme was ingrained directly to the Constitution by a contentious amendment. It is meant to assess all judges for their “security reliability”. To pass this security clearance the Slovak Intelligence Service, the police and the National Security Office screen the judges for information about their family life, ethical and personal views (a similar scheme was adopted in Croatia in 2015). The CC will face a Herulean task to fine-tune a balance between judicial independence and a reasonable degree of accountability that would allow judiciary to become more accountable (and trusted), without compromising its independence and impartiality.
The second observable trend implicates human rights limitations with special regard to two areas: the war on terror and the terrorism measures as well as cuts in social benefits. The case to look for this year on human rights issue, however, might come from elsewhere. The CC is currently reviewing the legislation (PL. ÚS 18/2014) that introduced a complete secondary education requirement for the mayoral candidates in local elections. The reasons behind the adoption of contested legislation could be found in a few communes with the Roma majority, in which illiterate candidates were elected mayors. This amendment seriously compromises the democratic tenets of universal suffrage – the absence of qualitative criteria for the office (a negative sense) and the idea that everyone is equally entitled to participate in the government, notwithstanding her qualities (a positive sense). On the other hand, the amendment arguably increased the competences and (legal) responsibilities of mayors in their communes.
Finally, the seminal question of 2016 remains with the CC composition. Right now it does not seem that there will be progress on this issue and the CC will have to continue functioning without three judges. The crisis is far from over yet as (i) the political elites currently do not have any incentive to deal with the situation as their chances to lose a case before the CC dramatically decreased; (ii) political climate is quite hostile for the resolution, especially taking the Slovak presidency of the Council of the EU into account; (iii) the President still refers to the political pedigree of nominees and to his constitutional responsibility to ensure the proper functioning of the constitutional institutions. Even a complete overhaul of the CC judges selection process is not a feasible solution, since it is difficult to predict what would happen to the current nominees. Despite that we sincerely hope that such state of affairs will be resolved soon and Slovakia will again possess a fully operational constitutional court with its 13 judges.
Suggested Citation: Tomáš Ľalík, Kamil Baraník and Simon Drudga, Developments in Slovak Constitutional Law: The Year 2015 in Review, Int’l J. Const. L. Blog, July 20, 2016, at: http://www.iconnectblog.com/2016/07/developments-in-slovak-constitutional-law
 See the annual reports of the CC on “Ochrana ústavnosti a ústavy v Slovenskej republike”, p. 9 [Slovak].
 Tomasz Tadeusz Koncewicz, Polish Constitutional Drama: Of Courts, Democracy, Constitutional Shenanigans and Constitutional Self-Defense, Int’l J. Const. L. Blog, Dec. 6, 2015.
 Pursuant to Art. 134 § 2 of the Constitution the National Council nominates double the number of candidates who are to be appointed by the President of the Slovak Republic.
 See the Opinion of the Venice Commission on the procedure for appointing judges to the Constitutional Court in times of presidential transition in the Slovak Republic. The Commission opined that a seat at the Court should not remain vacant and be filled as soon as possible; Opinion No. 772 / 2014, CDL-AD(2014)015, §§ 21-22.
 See e.g. pools in The 2016 EU Justice Scoreboard published by the European Commission, p. 33. The Slovak public has the least confidence in independence of its judiciary among the EU member states.
 See e.g. the constitutional act No. 427/2015 Coll. of Laws that extended the time-limit for a person to be brought before a judge from 48 hours to 96 hours or be released in respect of terrorist acts.
 See on this e.g. http://spectator.sme.sk/c/20087111/president-will-not-appoint-constitutional-judges-before-election.html (accessed on 15 June 2016).