—Tomáš Ľalík, Associate Professor, Comenius University (Bratislava)
July 2 marked the second anniversary of incumbent Slovak President Andrej Kiska’s refusal to fill in two vacancies at the Constitutional Court (CC). The CC has been managing its affairs two judges short since then, but the situation deteriorated further this February when the term of a third judge expired.
The head of state again refused to name judges to the Court last month. This could potentially leave it crippled for months if not years to come. The analysis below provides the timeline of the crisis together with its political background. This episode demonstrates the vulnerability of the CC as an institution, which often finds itself at the mercy of the political arms of government. What is more, transitional states, as Slovakia itself remains, are far more sensitive to constitutional conflicts than established democracies.
The Beginning of the Crisis: Summer of 2014
The Constitution provides that there be 13 judges at the CC. The selection process was rather straightforward until 2014: first the National Council (Parliament) nominates twice the number of candidates who are to be appointed to the Court; the President then selects from them the appropriate number of CC judges for a non-renewable 12-year term. A judge enters office upon taking the oath administered by the President.
Early symptoms of the crisis began to show already in the summer of 2014, long before President Kiska had even been sworn into the office.
Terms of three judges were about to end on July 4 that year, and the parliamentary majority, composed of a single party SMER-SD, had proposed two months in advance six fresh nominees to the outgoing president. But his term of office was to elapse earlier than on July 4 – on June 15 at noon, the moment when President Kiska was to take office. The ruling party was at that time concerned that the new president might oppose the nominations (Prime Minister Robert Fico was a runner-up in the 2014 presidential election); therefore, the question arose whether the incoming president would deny the oath to the judges nominated by the outgoing president.
For that reason the Ministry of Justice requested an opinion from the Venice Commission. The Commission opined that such an exercise of powers by an outgoing president would be permissible under the Constitution and the case-law of the CC (although consultation with the incoming President should be preferable) and that a newly elected president cannot refuse to administer the oath to the selected judges. The outgoing President decided not to select the judges, however, and left their selection to the newly elected President.
President Kiska then rejected five government candidates while nominating only a single judge to the CC. He issued reasons for each unsuccessful nominee with three grounds for refusal:
(1) a nominee’s CV did not indicate interest in constitutional law;
(2) lack of recognizable achievements in theory or practice by a nominee that would demonstrate competency to become a CC judge; and finally
(3) a committee set up by the President himself did not recommend their nomination.
Each decision was a carbon copy one-page document for which the President relied on an earlier judgment of the CC (PL. ÚS 4/2012) authorizing the president wide discretion to refuse the nomination of the Prosecutor General (PG) proposed by the National Council. In this judgment the CC had authorized the president not only to review whether a candidate for the office of the PG fulfilled statutory criteria but also whether the candidate would impair the authority or the mission of the institution. The Court held that the President, in considering the second of these two factors, could employ diverse criteria including extra-legal ones but he must avoid arbitrariness and issue written reasons supporting his decision.
Legal Battles and Political Responses: Part I
All five of the rejected nominees to the CC resorted to the CC itself, requesting scrutiny of the President’s decision. The third senate issued its judgment first on March 17, 2015 (III. ÚS 571/2014), and found that President Kiska violated the rights of three nominees to access to elected and other public offices. In particular, the third senate focused on distinguishing between the PG judgment and CC nominees case and found in the reasoning that:
(1) the PG and the CC have a different position in the constitutional system and perform different functions therein;
(2) a difference in constitutional nomination processes for the two institutions (only a single candidate for the office of PG v. twice the number of nominees to the CC; more complex qualifications for becoming a CC judge than for any other institution); and
(3) the importance of continuity of judicial review by the CC concerning the system of checks and balances.
With regard to the status of the presidential committee, the third senate stated that the President had acted ultra vires when creating the committee.
The fourth CC senate, dealing with the remaining two nominees, terminated its proceeding after both of the applicants dropped their applications.
After receiving adverse judgment, the President started a political campaign claiming that he is not bound by the written version of the decision issued by the third senate. The reason was that the third senate, while delivering the oral judgment, had implicitly acknowledged the applicability of criteria stemming from the PG judgment and only later on in the written version of decision had the senate denied their applicability. This was, according to the President, not in conformity with the finality of once pronounced judgments. President Kiska also requested from the National Council one additional nominee because he was of the opinion that the power to choose among candidates is intrinsically connected to there being twice the number from which to select. The National Council did not propose the additional nominee and stated that there would remain 5 candidates (for two judges), and that this was constitutionally sufficient.
To overcome the effects of the adverse judgment by the third senate, the President resorted to the plenum of the CC requesting a constitutional interpretation of his appointment powers and his degree of discretion in the selection of CC judges. He also asked the CC to address the corresponding duty of the Parliament to always ensure a double number of candidates for a single Court vacancy. The CC issued a decision on October 28, 2015 (PL. ÚS 45/2015) refusing the petition of the President. In its reasoning the Court stated that the issue of the President’s powers had already been resolved by the decision of the third senate (III. ÚS 571/2014). The question of the status of a candidate and the obligation of the Parliament to provide a double number of nominees was set in the statutory law for which the CC does not have competence. For the sake of clarity, the CC found that even two candidates that had revoked their applications remained nominees because justice, equal rights and the same factual situation of all candidates required so. Moreover, the CC indicated that the President was obliged to reverse his decisions and choose two judges among the five remaining candidates.
The President reacted quickly: he issued a statement explaining that he was not bound by this judgment of the CC.
General Elections of 2016: A Missed Opportunity and its Consequences
The President had the opportunity to win his conflict with both the CC and the National Council in the general election in February 2016 assuming the election resulted in a favorable newly-constituted National Council. President Kiska therefore announced that he would take no action before the general election. The President also pushed for the amendment of the selection process. Meanwhile, the term of office of another CC judge expired, thus leaving the CC with only 10 out of 13 justices because the President had again put on hold the selection of a new judge from the two nominees proposed by the National Council.
The general election did not end up how the President and a part of the opposition had hoped for. A big coalition had to be created consisting of the former ruling party SMER-SD (SMER had proposed all CC nominees thus far) together with three other political parties, including two parties defecting from the former opposition camp. The reason behind this unexpected turn of events was the fear of anti-establishment political parties, namely the far-right political party “Our Slovakia” (Naše Slovensko), entering parliament if a snap election was to be organized in a case of political impasse.
The crisis took yet another turn for the worse a few weeks ago in the beginning of July 2016, when the President refused to select three judges from the remaining five nominees, omitting the two who had revoked their applications but had later been returned to the pool of candidates by the plenary decision dicta.
Not only do the President’s follow-up decisions since July 2016 breach the Constitution, and weaken the institutional authority of the CC, but these actions ultimately prolong the CC’s paralysis, with one entire Court senate unable to be formed. Such a situation has serious consequences for the functionality of the CC. The increasing workload of the Court is thus distributed among fewer judges, which causes lengthier proceedings, and an increased chance that decisions on merits could not be reached as the Constitution requires the consent of a minimum of seven judges. This bears on the one hand greater prospects for the parliamentary majority to win a case before the CC, and on the other less scrutiny, with limited effectivity of judicial review for anyone else.
The President’s reluctance and his opposition to follow either the ratio decidendi of the third senate’s judgment, or dicta of the plenary decision can be seen as sheer formalism, contempt for the CC and proof of his ill will. It seems that the President would not select any nominee who does not fit his preferences.
This series of events closely resembles the situation in Poland where the government composed of the Law and Justice party (PiS) refused to publish judgments of the Polish Constitutional Tribunal declaring unconstitutional the statute aimed at reforming the Tribunal itself. The reason for the non-publication and thus the lack of legal effect of the judgments was purportedly that the Constitutional Tribunal had issued those judgments in breach of procedural rules.
The Slovak CC crisis is further exacerbated by the fact that any institutional reform seems to be out of the picture for now as well. For a reform to take place, a constitutional amendment is required which mathematically speaking means the consent of at least 90 MPs. The coalition government is fragile enough to dissolve because of the CC and to eventually face a premature general election. The consent of the coalition members is therefore the only option for any constitutional amendment.
However such a scenario is unlikely as the political party SMER-SD is the party that has nominated all the CC candidates and is also a prominent political force in the coalition. It is difficult to imagine that SMER-SD would consent to any change of the status quo. Yet, a crippled CC is a win situation for any parliamentary majority too, because the chances of losing a case before the CC have dramatically decreased: for a pronouncement of unconstitutionality of a statute, a majority of seven judges is required. And it is definitely easier to find seven judges among 13 when the CC is fully composed as compared to the current roster of 10 justices. Thus, political expedience will likely prevail over the need to repair what has been broken at the Constitutional Court.
What to expect next? Legal Battles and Political Responses: Part II
What path will the crisis take in the near future? The CC will yet again be called upon to rule as it is most likely that unsuccessful nominees will seek redress against the decisions issued by the President. Then any senate dealing with their applications will be confronted with the earlier judgment rendered by the third senate. For any eventual overruling the judgment, a senate has to resort to a plenary session at the CC. It is most likely that no decision on merits will be made by the full CC because such a decision requires a majority of seven judges and the current CC is heavily polarized. This was also evidenced by strong dissents in prior rulings made in the case. Under this scenario, any senate initiating an overruling will be obliged to follow the earlier judgment made by the third senate. What kind of reaction will such a sequence of events trigger from the President and consequently from the National Council is a mystery.
Suggested Citation: Tomáš Ľalík, Constitutional Court Crisis in Slovakia: Still Far Away from Resolution, Int’l J. Const. L. Blog, Aug. 5, 2016, at: http://www.iconnectblog.com/2016/08/constitutional-court-crisis-in-slovakia-still-far-away-from-resolution
 Opinion No. 772 / 2014, CDL-AD(2014)015; §§ 25 and 30 respectively.
 The CC expressed some of these concerns in a reaction to the decision of the President. The CC communiqué is available at: https://www.ustavnysud.sk/documents/10182/1270912/Tl_info_41_2016_/659bea3c-5f9f-428b-b7ca-36b9a0b87a36 [Slovak]
 See Tomasz Tadeusz Koncewicz, Farewell to the Polish Constitutional Court. Available at: http://verfassungsblog.de/farewell-to-the-polish-constitutional-court/
 The President is impeachable for intentional violation of the Constitution or high treason only (Art. 107 of the Constitution). The National Council can trigger impeachment process with 90 votes and the CC tries the case.