[Editor’s Note: This is the third of five parts in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here, and Part I is available here.]
—Marek Domin, Associate Professor at the Comenius University in Bratislava
The decision of the Constitutional Court (CC) of the Slovak Republic – I. ÚS 575/2016, and the following appointments to the Court by President Andrej Kiska, ended a long-drawn interpretive dispute over the extent of the presidential power to appoint the CC judges. Almost a quarter of seats on the Court had not been occupied in 2014, and one of its senates de facto ceased to exist. This dispute was settled, but new questions emerge. There remains a concern whether President Kiska was correct to appoint the judges he finally did because two out of his three appointments were selected by the National Council (NCSR) for the same vacancy. Had the CC considered this practical issue in the decision, the President could have benefited from the instruction to make an apt choice.
President Kiska appointed Miroslav Duriš, Jana Laššáková, and Mojmír Mamojka to the Court, following the decision of the I. Senate, which ordered him to choose three judges from the “sufficient number of candidates selected by the National Council.” Interestingly, this sufficient number counted seven instead of six candidates, as required by the Constitution. Where is the problem? The candidates, now judges, Laššáková and Mamojka were both selected for a seat of judge Dobrík, whose term of office ended in February 2016. They were selected in a single vote by the NCSR, for the same vacancy on the Court.
The President of the Slovak Republic shall, on the nomination of the National Council of the Slovak Republic, appoint the judges of the Constitutional Court for a period of twelve years. The National Council of the Slovak Republic shall propose a double number of candidates who are to be appointed by the President of the Slovak Republic.
It is clear from the wording of the relevant provisions of the Constitution, as well as the applicable case law that the President gets two candidates for an opening and appoints only one of them. Both candidates cannot be appointed. The President may not appoint both candidates even if he considers them equally qualified to serve in the office.
A Tangled Case
The problem would probably not occur had the context of the case been clearer. Three seats on the Court first vacated in 2014, and one more opening came in 2016. The National Council selected six candidates for the first three vacancies (per the double-number rule), but the President appointed only one instead of the three judges mandated by the Constitution. The NCSR then selected two additional candidates for the 2016 vacancy, but the President did not appoint anyone. What is more, not all unsuccessful candidates chose to litigate, and two of the candidates who did withdrew their petitions shortly after the first CC decision on constitutional complaints. To further complicate the matter, one of the candidates who initially filed a constitutional complaint did not petition the Court again when he was rejected by the President for the second time, so the I. Senate was left with and an odd assortment of applicants.
The candidate “goulash” was, mainly, due to the President’s decision not appoint the judges as well as due to some of the candidates. The CC acknowledged that the most difficult task was to identify the range of candidates from which the President should appoint the three missing judges, but an exceptional situation requires an exceptional solution. The CC, therefore, abandoned the dispositive principle that ordinarily governs its decision-making. According to this principle, the court will not start or hear a case without a qualified petition of an interested party, or satisfy claims in excess of the petition. The dispositive principle limits the review of the Court, and if it were respected, the CC would be unable to rule on the candidates who i) withdrew their complaint or ii) failed to file a complaint. The Court held that the dispositive principle does not apply absolutely, giving preference to the objective constitutional law over the constitutional rights of individual candidates.
It is possible to agree with the CC that, in this case, the interest of parties to the dispute was secondary. It was imperative to ensure the functioning of the Court and resolve the dispute over the scope presidential power to appoint its judges. It would be better yet if the CC considered the reciprocal relationship of candidates selected in separate NCSR votes to secure the propriety of the appointment process. The CC’s judgment, however, did not provide the President with an instruction to guide his choice of candidates for a particular seat and his decision to appoint two judges from a single NSCR vote, sets a dangerous precedent for the political practice.
Intent of the Parliament
Finally, it is interesting to consider the eventuality that the MPs’ selection of candidates to replace a particular judge may not be random. MPs may be guided by the area-specific expertise of an outgoing judge possessed and use it as a reference key to select a replacement suitable to fill the knowledge gap in the Court composition.
Suggested Citation: Marek Domin, Symposium on “The Slovak Constitutional Court Appointments Case”–The President’s Appointments, Int’l J. Const. L. Blog, Jan. 25, 2018, at: http://www.iconnectblog.com/2018/01/symposium-slovak-appointments-case-domin
 NCSR Resolution of December 2, 2015.
 NCSR Resolutions of April 3 and May 15, 2014.
 Case assignment in the Federal Constitutional Court of Germany takes into consideration the specialization of individual justices. Donald P. Kommers and Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany: Third edition, Revised and Expanded (2012) 26-27 (noting that typically “at least one justice of the Second Senate has a background in international law and European Union law”). This example was put to me by Simon Drugda.