Amendment to the Constitution of the Slovak Republic focuses on reform of the judiciary

Richard Chudo

In the Slovak Republic, as well as in other states of the European Union, the judiciary should be viewed as a guarantor of legality and justice, values which ​​should be demonstrated to the public by judges through their professional, independent and moral approach. However, according to several relevant surveys, for many years the citizens of the Slovak Republic have not had any confidence in the quality of the judicial system. This amendment seeks to remedy this fundamental deficit with systemic changes.

The biggest change is the introduction of the establishment of the Supreme Administrative Court, which will become the highest judicial authority in the field of administrative justice. It will also act as a disciplinary court for general court judges, prosecutors and other statutory professions. As of 1 January 2021, the Supreme Administrative Court will join the Supreme Court as the two supreme authorities in the hierarchy of the judiciary. In the event of a dispute between them regarding competence, the Constitutional Court of the Slovak Republic will decide on which court has jurisdiction. The administration and management of the Supreme Administrative Court itself will be performed by the President and Vice-President of the Court, who will be appointed for a term of five years by the President of the Slovak Republic based on proposals of the Judicial Council. The appointments of the first President and Vice-President of the Supreme Administrative Court will be announced by the President of the Judicial Council by 15 January 2021. With the establishment of the Supreme Administrative Court and the dissolution of the Administrative College at the Supreme Court, in addition to deciding on the disciplinary liability of judges and prosecutors, the Supreme Administrative Court will gain competence in the area of ​​deciding on the constitutionality and legality of elections of local authorities, and the dissolution and suspension of political parties. The Supreme Administrative Court is due to begin operations on 1 August 2021.

The amendment to the Constitution also significantly expands the powers and resources of the Judicial Council in the area of ​​reviewing judges. To date, state institutions have not been allowed to examine the origin of property of individual judges; however, the new Judicial Council will be able to thoroughly check the history of their acquisition of property. It will largely have a free hand in this process and be allowed to carry out its own investigations on the basis of information obtained or requested by it. The Judicial Council will therefore be able to assess for itself whether to initiate disciplinary proceedings against a particular judge.

The amendment also significantly modifies the system of electing judges to the Constitutional Court. Based on experience of the recent past, when the activities of the Constitutional Court were significantly reduced by the inability to select the required number of candidates, the government decided to introduce a regulation for such instances. In the first two rounds to elect the required number of candidates, a 3/5 majority of all members of parliament will be required. If after these two rounds, a sufficient number of candidates have not been selected, an absolute majority of the members of parliament will be required for the election of a candidate in the next two rounds. In the event that the members of parliament are passive, the President of the Slovak Republic shall be entitled to intervene. If within two months from the end of the term of office of judges of the Constitutional Court the members of parliament have not elected the required number of candidates for judges to the Constitutional Court, the President of the Slovak Republic will be able to appoint judges who have already obtained the required number of votes from members of parliament, despite the lack of the required number of candidates. The amendment also introduces an integrity requirement for candidates and for the public election of candidates to the National Council of the Slovak Republic.

The amendment also stipulates that the government of the Slovak Republic, the National Council of the Slovak Republic and the President of the Slovak Republic may only nominate non-judges to the Judicial Council and introduces maximum retirement ages of 67 for judges of general courts and 72 years for judges of the Constitutional Court. In connection with the established criminal offense of bending the law, it constitutionally clarifies the criminal-legal status of a judge or an associate judge who arbitrarily exercises his/her right in a decision-making process and by doing so damages or favours a party. The amendment to the Constitution explicitly states that neither a judge nor an associate judge may be prosecuted for a legal opinion expressed in his/her decision-making process, even after the termination of their office, unless the commission of a criminal offense has been established. This constitutionally and legally distinguishes between a legal opinion created and justified by a judge on the basis of the application of the law based on facts, and intentional, arbitrary decision-making and bending of the law.

The amendment shall enter into force on 1 January 2021, with the Supreme Administrative Court commencing its activities on 1 August 2021.