Building on my earlier commentary,[1] I now focus on the implications of the ongoing judicial vacancy, the timeline for upcoming appointments, and how the 2021 introduction of staggered terms is reshaping the institutional structure of the Constitutional Court.
The Appointment Pipeline
Aside from the vacancy after judge Laššáková, there will be at least one more opening on the Court during this term of the Parliament. Judge Jana Baricová was appointed to the Constitutional Court in July 2014, meaning that her 12-year term of office is about to end next year.[2] Fortunately, this opening will not add to the pressure on the Court as the 2020 amendment to the Constitution (Article 134(3)) introduced a new provision that Constitutional Court judges remains in office even after the expiration of their term until the new appointment is selected and sworn in. The end of judge Baricová’s term will thus not exacerbate the problem of appointment delay even if the Parliament drags it feet. Judge Baricová’s “overstay” in the office could, however, challenge our current understanding of abusive appointment practice in Slovakia.[3]
It is possible that the Parliament might not feel the pressure to appoint the missing judge to the Court until this second seat opens. While functionally there is no difference between appointing judges for two separate openings that each have their separate selection process and two that are joined into one, it introduces an interesting new dynamic in terms of cost and political maneurvering.
More importantly, combining the two vacancies may create a broader strategic opportunity for political negotiation. When several seats are open simultaneously, the stakes are higher, which can incentivise coalition parties to engage in more comprehensive power-sharing arrangements. A larger pool of vacant positions theoretically allows parties within the governing coalition to trade nominations, allocate seats according to their relative political weight, or use certain nominations to appease internal party factions or allied interest groups, which would otherwise be impracticable in a one-seat-at-a-time scenario.
The Constitutional Court appointment process has always been political, as one prominent candidate for the position said in the past.[4] However, the negative consequence of the current delays in the appointment is that the focus is almost entirely on politics: on coalition cohesion, political reciprocity, and institutional control, turning what should be a merit-based process into a platform for partisan accommodation. An additional opening on the Court may finally lead to the deadlock breaking.
Unrelated, combining the two appointments would also increase the space for discretion of the President in choosing from the candidates, as the President could then choose two judges from four candidates and not be limited by candidate pairs.[5]Introduction of staggered terms of office in 2021
The 2020 amendment to the Constitution[6] has, among other things, introduced a new mechanism for staggering the terms of office of newly appointed judges to the Constitutional Court, with the current opening being the first for which the mechanism will apply. Specifically, Article 154g(9) sets up a transitional arrangement stipulating that:●
The first four judges appointed
after January 1, 2021, will serve until October 30, 2037.
●
The next group of four judges
appointed after them will serve until October 30, 2041.
●
The remaining five judges
appointed in this cycle will serve until October 30, 2045.
This design was introduced in the second
reading in the amendment process. The explanatory memorandum to the
proposal stated:
To ensure a gradual rotation of judges and to prevent a single ruling party or coalition from using its nominations to the judges of the Constitutional Court of the Slovak Republic to fill a majority of the judges on this court—which is likely to occur next in 2031—varied term lengths will be established for the judges of the Constitutional Court of the Slovak Republic who will be appointed to the court from the time the amendment to the Constitution of the Slovak Republic comes into effect.[7]
The provision has thus spread the end of the
term of office of the next 12 appointed judges across three staggered dates. This
will ensure that no one government will have the opportunity to replace all the
judges at once. Such staggering does, in general, help preserve the
institutional memory of the Court and protects its independence by decreasing
the portion of judges available for appointment, thus reducing the risk and
temptation of capturing the Court.
Institutional
memory and Court capture
Courts need to “remember,” because they are a knowledge institution. Their ability to remember is essential not only for doctrinal continuity but for upholding legal coherence across time. Aside from triadic dispute resolution, they also produce knowledge in the form of written opinions, concepts, and meanings encompassed in those opinions. In this context, Vicki C. Jackson has argued that institutions like universities, independent media, courts, statistical offices, and fact-checking bodies serve as epistemic pillars that anchor democratic decision-making in verifiable reality.[8] What happens then when such an institution is emptied all at once? Sizeable changes to the composition of a court could lead to a break in the established doctrine and court practice.
Such institutional “forgetting” does not
necessarily have to be detrimental. It could even be beneficial if the gaps in
the court’s memory led to experimentation and the development of new jurisprudence that
produced better outcomes in terms of social welfare. But the uncertainty caused
by the short-term disruption in the rule of law might still outweigh the potential positives.
Regarding the temptation for
capturing the Court, larger appointment clusters increase the reward for capture by a would-be authoritarian. By appointing a majority on the Court, they could
extend their influence considerably. For an example, consider the very first appointment to the Constitutional Court in 1993. It was generally understood at the time that the
appointment of the newly established Constitutional Court would be up to the head of state, once appointed. Despite the disagreement from the ranks of
the opposition, however, Prime Minister Mečiar, an acting President in the
interim, assumed this power by himself and selected all ten judges (the size of
the bench at the time) for maximium gain.
Practical
issues in implementation
Implementing staggered terms of office
will also raise an interesting challenge for the head of state in the future. The
President will have to decide which candidates will be appointed for shorter
and longer terms than the conventional 12-year terms of office. That is because
Article 154(g) expects judges to be appointed with the length of their term
determined by an end date, which means that already the judge succeeding judge
Baricová will sit for 11 years, and the judge succeeding judge Duriš in 2029 will
only sit only for seven. In 2031-32, on the other hand, one of the judges will
be appointed for a six-year term, four others for ten years, and the remaining
five for 14-15-year terms.
The variable length of the terms of
office does not a priori raise a
problem, as judges in the past have been appointed for shorter or even
consecutive terms. What will be interesting to see is how the President decides
which judge will sit for how long when the appointments come in a cluster. An
argument could be made to randomise this decision, but
that debate can be deferred until this becomes relevant later in the decade.
Ultimately, the success of the
staggered-term system will depend not only on the written constitutional rules
but also on the willingness of political and constitutional actors to respect
the spirit of judicial independence and prioritise the long-term legitimacy of
the Court over short-term political gain. The current delay, however, offers us
a preview of the difficulties ahead when the stakes will be higher.
[1] Šimon Drugda, “Delays in Appointment to Slovak Constitutional Court” (slovakconlaw, 10 May 2025) <https://slovakconlaw.blogspot.com/2025/05/delays-20in-appointment-to-slovak-constitutional-court.html>
[3] On judicial overstay, see Patrick Leisure and David Kosař, “Court-hoarding: Another method of gaming judicial turnover” 46 Law & Policy 4
[4] Veronika Prušová, “Fico na vypočutí: Neklamme si, že Ústavný súd nemá nič s politikou” (Denník N, 23 January 2019) <https://dennikn.sk/1358867/fico-na-vypocuti-neklamme-si-ze-ustavny-sud-nema-nic-s-politikou/>
[5] On this, see the decision of the Constitutional Court in the case I. ÚS 575/2016
[6] Constitutional Act No 422/2020 Coll.
[7] Explanatory memorandum to the amendment proposal by Milan Vetrák and Gábor Grenedel, introduced in the second reading of the amendment bill on 3 December 2020. Accessible at: <https://www.nrsr.sk/web/Default.aspx?sid=zakony/zakon&MasterID=7962>
[8] Vicki C Jackson, “Knowledge Institutions in Constitutional Democracies: Preliminary Reflections” (2021) 7 Can J Comp & Contemp L 156
