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.[1] The Constitution has already been changed 16 times since its adoption, with the last direct amendment adopted on March 30, 2017.[2] 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;[3] 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,[4] 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.[5] 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.[6] The ongoing conflict (see the 2015 YiR report) has left the Court incomplete for well over two years.
II. Constitutional Controversies
The issue that has continuously “irritated” Slovak constitutional politics has been the so-called Mečiar’s amnesties. Vladimír Mečiar, the prime minister in 1994-1998, was also acting president in March-October 1998. The Constitution then allowed the government to shift almost complete presidential powers to the PM during the vacant presidency, including the power to grant pardons and amnesties. Which is what Vladimír Mečiar did. His amnesties halted criminal investigations under the pretense of “achieving civil peace.” They caused major public outrage, and further enhanced the perception of abuse of state powers by elites.[7]
1. “Mečiar’s Amnesties”
PM Mečiar got into numerous severe conflicts with the former president, Michal Kováč, in the mid-90s. In November 1994, the German court issued an arrest warrant for Michal Kováč Jr., the president’s son, for an alleged 2 million USD fraud.[8] But Slovakia did not have an extradition agreement with Germany at the time, thus, allegedly, the Slovak Intelligence Service (SIS) dragged Kováč Jr. to Austria in an undercover operation in August 1995. The SIS officers tied Kováč Jr., made him drunk, and had taken him to Austria (per prosecutor’s indictment) so that he might be later extradited to Germany. It is believed that the abduction was orchestrated by the director of SIS, nominated to the office by Mečiar, and that Mečiar at the very least knew about the operation.
In 1998, then acting president Mečiar issued two amnesties. On March 3, 1998, he issued the first amnesty (No. 55/1998 Coll. of Laws) by which he inter alia prohibited to commence or to continue criminal proceedings in all cases connected with the abduction of Kováč Jr. On July 7, 1998, Mečiar issued the second amnesty (No. 214/1998 Coll. of Laws) to clarify the confused wording and interpretation of the first amnesty. He introduced “suspicion” for the perpetration of the concerned criminal offenses into the wording of the original Act. However, a new government emerged from the imminent 1998 general election. The new PM, Mikuláš Dzurinda, still an interim president, abolished both Mečiar’s amnesties in relevant parts. This decision was challenged before the CC, and one of the Court Senates decided that the president could not lawfully revoke an amnesty that had been already granted. The same rationale applied to other state institutions.[9] The CC further held that the legal positions of the amnestied individuals could not be lawfully altered (I. ÚS 30/99).
The criminal investigation proceeded notwithstanding the CC decision, but in 2002 the competent courts, including the Supreme Court, finally refused the indictment because of the amnesties. The criminal case was dismissed as res judicata.
2. Constitutional Amendment
The NC tried to abolish the controversial amnesties, but until March 30, 2017, these efforts brought no legal consequences. Finally, in 2017, the NC amended the Constitution (No. 71/2017 Coll. of Laws) to create a unique mechanism for abolishing the past and future presidential amnesties and pardons. First, the amendment introduces the possibility that the NC can abolish, by a 3/5 majority, any amnesty or pardon that violates the principles of the rule of law and democracy. The NC does so by a resolution, published in the Collection of Laws. Second, such a resolution also annuls all legal effects of final decisions in attendant crimes, which would ordinarily preclude prosecution.[10] Third, the NC decision to abolish an amnesty or pardon will be ex officio automatically sent to the CC for a review. The Plenum must review the resolution in 60 calendar days. If the Court does not decide by this time, the NC’s decision is constitutional by default. The case of Mečiar’s amnesties is currently pending before the CC.
3. Implications for Practice
A few remarks on the change are necessary. The NC has elevated itself above the other branches of the government, but especially above the executive. The Parliament can review, based on its political and legal judgment, whether the president and the government exercised their powers in comport with the Constitution. The amendment thus enables the legislature at the expense of the executive, and ultimately also to the judiciary. Moreover, the mechanism is also complicated and opaque, since the process now involves all major institutions. The presidential amnesty power was already (1) subject to the government countersignature, but can be now (2) abolished by the NC, and in the end also (3) reviewed by the CC. The amnesty power is fettered to the extent that it will not often be used.
Second, the possibility to ex-post abolish pardons and amnesties leaves the legal situation of those benefiting from the acts uncertain. Theoretically, even amnesties issued in 1945 are subject to repeal. The constitutional practice does not rule this out. International human rights obligations concerning the finality of decisions (res judicata), the ne bis in idem principle, legitimate expectations, or the right to have a fair trial can now be possibly also at stake. The amendment was adopted with an implicit notion that cases will likely end up before the ECtHR.[11]
Third, even though the CC automatically reviews the NC’s resolution on the amnesties, an absolute majority (7) of all 13 judges is still necessary to overrule the decision.[12] This is an unlikely feat with the peculiar situation on the Court, which consists of only 10 judges. The quorum for decisions does not decrease. This technical hurdle further tips the scales in favor of the Parliament.
Fourth, the gravity of the offense pardoned by Mečiar’s amnesties was not likely to drastically impinge on the constitutional order. Their abolition on the other hand, likely violates the principles of the rule of law (chiefly non-retroactivity). The abduction of a single person, who went missing for several hours and was later found unharmed, although morally and legally reprehensible, is by no means a crime against humanity, as defined by Art. 7 of the Rome Statute of the International Criminal Court.[13] Therefore, the case must be distinguished from Barrios Altos, Gelman, or Marguš cases, or amnesties after the “dirty war” in Argentina.
III. Court Decisions in 2016
The CC has not yet published its annual statistics for the year 2016 at the time of writing this paper, but there is data that might be of at least a rough guidance for comparativists when extrapolated for the whole year. The Court received 8 978 applications in the first six months of 2016 and addressed 8978 cases at the same time.[14] A single judge decided 569 cases per month on average in the first half-year. The Plenum decided six judicial review cases on merits in 2016.[15] The average length was projected to increase last year from the 9,02 months in 2015, and 8,15 months in 2014, due to vacancies on the Court and backlog.[16] Yet most of its docket is up to date. The oldest pending cases before the CC were two petitions from 2013.
Notwithstanding the general salience of plenary decisions, the Court’s primary activity (in absolute figures) lies with the Senates. The overwhelming majority of cases before the CC are constitutional complaints. Since the YiR report on the year 2015 focused entirely on plenary decisions, we focus on the decision-making in the Senates in 2016 to compensate for the omission.
Senate Decisions in the Year 2016
In late December, the CC heard a case of two judges that were recalled because they reached the age of 65 years (II. ÚS 298/2015). The Constitution recognizes two types of a judicial recall: obligatory and optional. The latter form further distinguished between a Judicial Council (JC)[17] recommendation to the President to recall a judge either due to bad health (the inability to work for more than a year) or upon reaching the age of 65 (Art 147.2 of the Constitution). The two former judges claimed a violation of their right to access to public offices (Art 30.4 of the Constitution). In their view, the JC did not explicitly recommend the President to have them recalled, and the President did not provide sufficient reasons for his decision. But the Court did not find a violation of the Art 30.4 since the JC is neither obliged to present a list of judges exceeding the age limit nor does the President have a constitutional obligation to act on such a recommendation. The CC upheld the JC motions as qualified for a recall. The President had sufficiently engaged his competences when he explicitly referenced to constitutional provisions regulating the recall process.
The JC was also involved in another interesting case concerning the organizational powers of its president and the obligation to provide reasoned decisions (III. ÚS 588/2016). A candidate for a vacant seat on the General Court of the EU for Slovakia lodged a constitutional complaint against the JC decision that denied his application. He was rejected in a secret ballot without the Council giving reasons for the decision. The applicant also claimed that the JC president unlawfully postponed, by 15 days, the second round of public hearings to find suitable candidates for the Slovak nomination. The applicant was statutorily barred from taking part in that call but would be otherwise eligible for another run if the selection process failed. It was bound to fail since no one was proposed. The applicant argued that the postponement was arbitrary, ultra vires, and violated his right to good administration.
The CC, however, found the complaint ill-founded. The Court reasoned that JC decisions do not constitute individual legal acts and as such need not give reasons due to the character of the vote (secret ballot) and the fact that even non-legal arguments can play a role in the election process. Moreover, neither the Constitution nor any statutory law allows an appeal against such decision. The election process is otherwise transparent. Public hearings are recorded and uploaded on-line, decisions are publicized together with minute-books from the sessions. As for the postponement of the hearing, the CC held that even though the statutory law does not envisage such power for the president, it is still among her implicit powers as it relates to organizational competences. But the president must not exceed 120 days for holding a session.
In the year 2016, a question arose whether the Parliament can debate specifics of an ongoing high-profile criminal case with explicit reference to suspects (II. ÚS 146/2016). The case concerned the infamous Gorilla scandal: a political corruption scandal in Slovakia in 2005-2006. The applicant before the CC claimed that the National Council (NC) had violated several of his rights (right to private life, right to a fair trial, presumption of innocence, etc.) by adopting a declaration on the scandal but also when MPs named him the primary suspect in the scandal during an extraordinary session of the NC. The applicant also argued that although never officially charged with any offense, he felt as if he, in fact, was “substantively charged” due to the conduct of public authorities and parliamentarians’ accusations. The CC dismissed the complaint, having found that the applicant was not individually and intensely affected by the acts and statements of the NC. He became a publicly known figure through his own conduct. The CC stressed that the main function of any parliament – to discuss, parler – constitutes an objective constitutional value in itself. The NC may discuss any issue of public importance and MPs cannot be held civilly liable for making statements in session. The declaration issued by the NC was of declaratory (political) nature without mentioning the applicant. However, the Parliament can violate individual human rights if it exceeds its competence or arrogates constitutional powers of other branches.
In the case I. ÚS 689/2014, the CC reviewed lower court decisions where the applicant (a judge) had a civil action dismissed. The suit concerned comments made by an MP on the national news: “It is absurd that a criminally prosecuted judge is still on the bench. This is evidence that in today’s judiciary corrupted judges triumph.” The CC emphasized the dignity and the right to private life of the applicant:
It is especially human dignity, good reputation, and name or personal honor that preclude a person to be treated as an object in the relevant legal relation. Human dignity is a value horizontally incomparable with other constitutional values or societal norms, and it is irrecoverable by other goods; less so by values quantified or identifiable by money.
The Senate accented the presumption of innocence that protects an individual until found guilty and criticized the formalistic approach of lower courts, which imposed an overly excessive burden of proof on the applicant to demonstrate suffered loss and limitation of her right to private life.
The application of the EU law to the domestic legal order, namely the extent of compensation in civil liability cases arising from car accidents, came before the CC in the case III. ÚS 666/2016. An insurance company claimed a violation of the right to a fair trial and the right to property against lower courts because of their extensive interpretation of “damage.” Lower courts had found that damage includes non-material harm caused by traffic accidents, referring to the CJEU judgment Haasová (C-22/12). The applicant had to compensate 26.000 EUR the insured person for a violation of personal rights and the suffering caused by a loss of a close person in a car accident. The insurer argued for a restrictive interpretation of the term damage in the Slovak legislation; the CJEU itself refers to national law to determine whether a compensation in such civil liability cases also covers non-material damage (Haasová, para 59). The CC ruled the complaint ill-founded. Lower courts constructed damage in an extensive way by a reference to the case law of the CJEU and doing justice to the interpretation of national law in conformity with the EU law. The CC also referred to Haasová (para 58), where the CJEU subsumed road traffic accidents in the national law under civil liability law to which three different EU directives on insurance for civil liability in respect of the use to motor vehicles apply. Moreover, the Slovak Civil Code regulates various aspects of damage to health that have immaterial connotations. While the case law of the Supreme Court on this subject remains divergent, the CC upheld the challenged lower court decisions as constitutionally tenable.
Undue Delays in Proceedings
Constitutional complaints against excessive length of proceedings in court have gained a steady notoriety in the jurisprudence of the Court. These cases have among the highest success rate and continue to draw the attention of the Court and media. 86% of all cases before the CC between 2002-2010 were constitutional complaints and of 80,6% of those involved the claim that the applicant’s case was not settled within a reasonable time.[18] The Court found a violation of the rights of applicants to a fair trial within the reasonable time in 263 cases in the year 2016. Twenty-nine of the cases lasted over 16 years (“extreme delays”) while in 28 cases the CC found repeated violations (the so-called “repeat delays”).
The Senate decision II. ÚS 612/2015 may work as an illustrative example of this genus of cases. This dispute was not the longest but was distinct to the extent of the CC’s involvement.[19] The District Court in Čadca took 18 years and four CC judgments to close the case. The CC considers the totality of circumstances of a case of excessive length of proceedings, but accents three criteria: (1) legal, factual, and procedural complexity of the case;[20] (2) parties’ conduct (which may determine the remedy); and (3) conduct of the lower court. It is not just an inaction of the competent authority that may cause undue delays. The CC recognizes that courts bear responsibility for an effective and fair trial that leads to a successful vindication of the winning party’s right. Thus, a court needs to instruct experts,[21] witnesses, and the parties to act expeditiously,[22] and deter itself from unnecessarily amassing evidence in excess. The court must further ensure that the publication of a decision follows promptly after its oral pronouncement, and is quickly delivered to the parties.[23] Neither do personnel changes on the court that has jurisdiction to try the case relieve the state of its responsibility for the excessive length of proceedings.[24] Finally, criminal cases constitute a special subset of cases within the genus, when even a delay of several weeks can constitute a violation of the right to fair trial within reasonable time.[25]
The cases on excessive length of proceedings are important because parties to a dispute and the public overall lose confidence in the effective exercise of justice when faced with widespread actions and omissions by public authorities that contribute or directly result in unnecessary delays. The reputation of judges dissipates in proportion to the decline of trust in the judiciary. Prof Richard Fallon noted in his well-known paper that the authoritative legitimacy of judicial pronouncements is not a logical necessity.[26] Yet the non-compliance of lower courts in the 28 cases seems to be compelled more by a backlog and the force of inertia.
The CC runs a project to improve the efficacy of implementation of its decisions on constitutional complaints that should help, in the long run, to reduce the number of instances when the ECtHR finds Slovakia in violation of the Convention.[27] The Court monitors the enforcement of its decisions through repeat notifications in six-month intervals and naming and shaming. The Court monthly publishes online those lower court decisions that had been found in breach of the state’s positive obligations, along with the name of a presiding judge.[28]
V. Conclusion
The CC decisions have been broadly respected. In recent years, however, the friction between the representative branches of the government and the CC caused disturbances, and the Court has been sporadically attacked as political, illegitimate, or simply wrong.[29] No decision has been openly disregarded, but there have been gestures of resistance to the CC’s authority. The counter-majoritarian anxieties in Slovakia seem certainly less acute than in comparative perspective.[30] Criticism of the Constitutional Court has become, perhaps, a canon of politicians to focus attention elsewhere, and a way of affordable position taking.[31] Slovakia starts to pick up on the trend, but will hopefully not let the fates of Polish and Hungarian Constitutional Courts repeat.
[1] Art 84.4 (prescribing a three-fifths majority of MPs for, inter alia, adopting or amending the Constitution).
[2] See generally Tomáš Ľalík, “Tracing Constitutional Changes in Slovakia Since 2008” Hungarian Journal of Legal Studies (forthcoming 2017).
[3] The so-called “Major amendment” that provided for a more monist attitude to international law. See Barbora Moormann-Kimáková’s chapter on Slovakia in Constitutional Politics and Eastern Europe: From Post-Socialist Transition to the Reform of Political Systems (eds.) Anna Fruhstorfer and Michael Hein (Springer 2016) 76.
[4] The Federalist No. 37 (James Madison).
[5] To paraphrase Aharon Barak, The Judge in Democracy (Princeton University Press 2006). This is observable in the pattern of constitutional interpretations, which come in periods of amendment dead spots. But constitutional interpretation has its limits.
[6] Tomáš Ľalík, “Constitutional Court Crisis in Slovakia: Still Far Away from Resolution,” Int’l J. Const. L. Blog, August 5, 2016.http://www.iconnectblog.com/2016/08/constitutional-court-crisis-in-slovakia-still-far-away-from-resolution
[7] The NC tried to abolish the amnesties on eight separate occasions. See also the CC decisions in I. ÚS 30/99, I. ÚS 40/1999; decisions on constitutional complaints in II. ÚS 31/1999, II. ÚS 69/1999, II. ÚS 80/1999, I. ÚS 48/99; and the ECtHR decision in Lexa v. Slovakia, no. 54334/00, 23 September 2008.
[8] INTERPOL had also issued a warrant for Kováč Jr.
[9] Senates could interpret the Constitution prior to 2001.
[10] This was explicitly extended to the amnesties and a pardon that President Kováč gave to his son, because of the statute of limitations.
[11] In Hart’s terms, this might have been a “frankly retrospective law.” HLA Hart, “Positivism and the Separation of Law and Morals” Harv. L. Rev. (1957) 619.
[12] As with other plenary decisions per Art 131.1.
[13] But compare Art 80 and 120.13 of the Constitution of Ecuador, which excludes cases of force disappearance from the benefit of amnesties or pardons; and provisions against forced disappearance in Latin American constitutions. Art 27.5(b) of the Constitution of Eritrea prohibits the grant of pardon or amnesty to persons who, “acting under the authority of the State, have committed illegal acts.”
[14]Pre-2016 pending cases have increased the aggregate number. Press release no. 46/2016 https://www.ustavnysud.sk/documents/10182/1270912/Tl_info_46_2016/f43f8875-4d04-4a4a-b8d7-f29421c66499.
[15] Calculated for the period 1/3/2016- 4/6/2016. The CC was down by one further judge since the end of February. The remaining ten had to divide the remainder of his work (107 filings). Press release no. 40/2016 https://www.ustavnysud.sk/documents/10182/1270912/Tl_info_40_2016/07492b21-95a5-449a-9a64-7398812236ba.
[16] The Court has received 135 324 petitions in its third term (2007-2016); sevenfold the number of applications filed in the previous two terms combined. Press release no. 41/2016 https://www.ustavnysud.sk/documents/10182/1270912/Tl_info_41_2016_/659bea3c-5f9f-428b-b7ca-36b9a0b87a36.
[17] On the JC, see generally David Kosař, Perils of Judicial Self-Government in Transitional Societies (CUP 2016).
[18] 40 876 complaints in the observed period.
[19] See prior decisions: I. ÚS 327/09, I. ÚS 78/2011, III. ÚS 121/2013.
[20] This criterion concerns also the (1a) object of a dispute such as a suit for inheritance or property claims.
[21] I. ÚS 23/2016 (finding a lower court responsible for delay caused by a notary).
[22] I. ÚS 523/2015 (finding that litigants have a procedural obligation to contribute to achieving the purpose of legal proceedings in responding timely to the instructions the court).
[23] I. ÚS 96/2016 (finding 13-month latency unreasonable).
[24] II. ÚS 408/2015 (rejecting repeated allocation of file to several judges as a justification for delays).
[25] See e.g. I. ÚS 5/2016, I. ÚS 237/2015.
[26] Richard Fallon, “Legitimacy and the Constitution,” 118 Harvard Law Review 1787, 1831.
[27] Art 6.1 ECtHR; Art 48.2 of the Constitution in domestic law.
[28] Press release no. 20/2017 <https://www.ustavnysud.sk/c/document_library/get_file?uuid=bb2716bd-626b-402b-a83c-ba2330480479&groupId=10182>.
[29] Most recently in connection to the abolition of Mečiar’s amnesties by MPs, and by President Kiska concerning the controversy with judicial appointments. Critics conflate legal, moral, and sociological legitimacy.
[30] Tomasz Tadeusz Koncewicz, “Polish Constitutional Drama: Of Courts, Democracy, Constitutional Shenanigans and Constitutional Self-Defense,” Int’l J. Const. L. Blog, December 6, 2015, <http://www.iconnectblog.com/2015/12/polish-constitutional-drama-of-courts-democracy-constitutional-shenanigans-and-constitutional-self-defense> accessed on April 15, 2017; on Hungary see generally Armin von Bogdandy and Pal Sonnevend, Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart 2015).
[31] Mark A. Graber, “A Tale Told by a President,” 28 Yale Law & Policy Review: Inter Alia 13 (2010).
Comments