I recently thought about how much of constitutional law is ebb and flow, action and reaction. Which is why today I decided to analyse a graph that I have had in my desk drawer for a while. See the waterfall graph of the Slovak judges’ population size between 2011 and 2025 (Figure 1). The graph visually shows staffing shifts in the court system as increases and decreases from the original value. The initial value in the graph is 0, based on the fact that I could not get the exact number of judges in January 2011, but it could be any value. What is important is the pattern created by adding and subtracting from judges’ population over time, and as you can see ebbs and flows.
The number of judges in Slovakia is affected yearly by four specific events: the appointment of new judges (which adds to the pool), the resignation of retiring judges, their removal, and death (all of which reduce the population). The Ministry of Justice reports each of these events under the “Change Notices” section on its webpage, and it has done so since 2011.
I had initially collected the data from the notice section of the MOJ website to create a small dataset to see if I could learn something about the population size of Slovak judges. I was hoping to see if we could, for example, observe growing interest in the judicial office, which would be observable by a gradual, steady increase in judges’ population (subject to the court system’s capacity). Alternatively, I was interested in whether the politicisation of the judiciary resulted in the decline of interest in the job. Finally, I wanted to see if we could see large fluctuations in the size of the population around important parliamentary elections that could spell uncertainty for the judiciary because of new policies aimed at regulating the court system (think background checks for judges, asset declaration, etc).
What I found after collecting the data was interesting. I then switched to analysing the data inductively (from the data to a hypothesis), although my general understanding of judicial studies and Slovak constitutional politics informed the process.
According to the Ministry, there were 1415 active judges in Slovakia at the time of writing this blog, just 23 more judges than in 2011. The data from the notice registry shows that this population has been remarkably stable, with the largest negative deviation from the mean of over 80 in late 2020 to early 2021 and the largest positive deviation of 60 in early 2019. Over the last 14 years, there has been only a modest net growth. We can observe that the judges’ population experienced two major declines in 2015-2016 and 2020-2021 (highlighted in light red), followed by a gradual return to levels of court staffing matching or exceeding values before the dip. These episodes of decline were rapid and indicate some coordinated behaviour of judges leaving or an external shock.
Initially, I thought the first episode could have been a delayed response to the implementation of the background checks for judges in October 2015.[1] Adopted in 2014, the background checks were also meant to cover sitting judges. The new screening mechanism could have caused uncertainty, which resulted in some judges deciding to step down to avoid the unnecessary burden of the office. However, the implementation of the background checks for sitting judges was suspended pending the Constitutional Court’s review of the mechanism, so I decided to check for alternative explanations.
Elections could be an alternative explanation
and potentially explain the second episode of deep population decline in
2020-2021 as well. General elections were held in Slovakia in 2016 and 2020,
which, at least in the latter case, resulted in the most significant government
shift in a decade.[2] Not
to mention the largest anti-corruption police operations targeting judges that
followed shortly.[3] This
was a change that could bring about peak uncertainty and result in large
population shifts.
To check the validity of this explanation, or the validity of the initial assumption about the cause of population decline being the fear of background checks, I tried to assess what portion of the decline could be attributed to resignations (indicating a choice by the judges) instead of removals from office. Looking at the data more granularly, it became clear that I was wrong. Most judges in both decline episodes did not leave of their own volition, but were removed from office due to old age. This was still an interesting finding because, assuming a random distribution of retiring judges, there should not be large clusters of retirees concentrated in such short time frames. What happened is that politics did play a role, but it was the internal judicial politics.
In both episodes of decline, the President at
the time removed a large number of judges from office due to old age.[4]
Prior to a constitutional change in 2021, judges in Slovakia did not leave
office automatically upon reaching retirement age; they had to be removed by
the head of state based on the proposal by the Judicial Council. In
constitutional law, however, there has been disagreement on whether the Council
and the President must or can remove judges following their retirement age. The
Constitution currently provides in Article 146(2) that a judge’s office ceases
on the last day of the month when the judge reaches the age of 67. Before the
constitutional reform in 2021, Article 147(2)b set the age at which the President
“may” dismiss a judge at 65. This led to irregular removal and claims of discrimination
or selective enforcement of judges’ retirement.
In 2016, mid-term, President Kiska expressed
his intention to begin actively retiring judges as a part of a push for a generational
change in the judiciary. At the time, there was a backlog of over a hundred
judges who remained in office despite being over 65.[5]
Kiska criticised the other political actors for not addressing the issue of ageing
judges, effectively allowing them to remain in office indefinitely, which some
viewed as contributing to stagnation and a lack of reform in the judiciary. After
the backlog was cleared, President Kiska continued to appoint over a hundred
judges over the next two years, pushing their population size to its peak in mid-2019.[6]
Fast-forward four years, the then-head of
the Judicial Council, Ján Mazák, criticised again the selective nature of past
decisions regarding the dismissal of judges who had reached retirement age and
the backlog of judges who had been in office past their retirement age. He
argued that failing to propose the dismissal of some judges while not others amounted
to discrimination. The Judicial Council adopted the view that it was obligated
to submit all cases of judges past their retirement who were overstaying in
office to the President, who then could decide whether to dismiss them or not,
depending on the circumstances of individual courts (to avoid staff shortage).[7]
In the Council’s view, this was the proper constitutional process to ensure regular
renewal of the judiciary.
President-elect Čaputová, like President
Kiska before her, exercised the power to remove judges actively, bringing the
judges’ population size from its peak to its macro low in early 2021. And then,
like her predecessor, President Čaputová appointed over a hundred judges in the
next three years of her office to return the population to the level before the
dip.
Now, coming back to my initial interest in this chart, the data does not suggest the idea that politicisation has driven lawyers away from judicial office, since the fluctuations were not primarily due to a drop in interest or voluntary resignations. While sharp declines in the judge population did coincide with election years, closer examination shows that if politics affected judges’ population size, it was the internal judicial corps politics of irregularly extending the office of judges post-retirement. And the two big declines were caused by coordinated efforts to enforce age-based retirements in response to the backlog of overdue dismissals. The key drivers of change, then, were not bottom-up shifts in interest or top-down political interference, but the constitutional and administrative practices surrounding judicial retirement.
What will likely happen now is that the Slovak judges’ population size will either trend to the original value in 2011, which seems to be the equilibrium point, or if there are some changes in the organisation of the judiciary, such as the creation of new courts that need staffing, it should find a new equilibrium. Since the new retirement mechanism does not require the President and the Judicial Council to act, there should be no more backlogs and thus dramatic dips in the number of judges. Instead, the population will gradually renew as some judges retire and new ones are hired.
[1] “New security clearances for judges implemented” (The Slovak
Spectator, 2 October 2015)
<https://spectator.sme.sk/politics-and-society/c/new-security-clearances-for-judges-implemented>;
and Simon Drugda, “Slovak Constitutional Court Strikes Down a Constitutional
Amendment—But the Amendment Remains Valid” (I·CONnect, 25 April 2019)
<https://www.iconnectblog.com/slovak-constitutional-court-strikes-down-a-constitutional-amendment-but-the-amendment-remains-valid/>
[2] Miroslava German Sirotnikova and Marc Santora, “Governing Party in
Slovakia Suffers Decisive Election Defeat” (The New York Times, 1 March 2020)
<https://www.nytimes.com/2020/03/01/world/europe/slovakia-election.html>
[3] “Miroslava German Sirotnikova, Democracy Digest: Slovakia’s
Political and Judicial ‘Storm’” (Balkan Insight – Reporting Democracy,
13 March 2020)
<https://balkaninsight.com/2020/03/13/democracy-digest-slovakias-political-and-judicial-storm/>
[4] “Prezident odvolal ďalších sudcov” (najprávo.sk, 23 March
2016)
<https://www.najpravo.sk/clanky/prezident-odvolal-dalsich-sudcov.html>; “Kiska
odvolal 47 sudcov, dosiahli vek 65 rokov” (SME, 13 May 2016)
<https://domov.sme.sk/c/20162680/kiska-odvolal-47-sudcov-dosiahli-vek-65-rokov.html>;
and “Prezidentka odvolá z funkcie zatiaľ 63 sudcov nad 65 rokov” (aktuality.sk,
30 March 2021)
<https://www.aktuality.sk/clanok/827919/prezidentka-odvola-z-funkcie-zatial-63-sudcov-nad-65-rokov/#google_vignette>
[5] “Prezident SR zaslal odvolací dekrét 14 sudcom” (najprávo.sk,
10 January 2016)
<https://www.najpravo.sk/clanky/prezident-sr-zaslal-odvolaci-dekret-14-sudcom.html>
[6] “Prezident Kiska počas svojho mandátu vymenoval stovky sudcov,
povýšil tiež desiatky vojakov” (SITA, 14 June 2019)
<https://sita.sk/prezident-kiska-pocas-svojho-mandatu-vymenoval-stovky-sudcov-povysil-tiez-desiatky-vojakov/>
[7] “Súdna rada žiada odvolanie všetkých sudcov v dôchodkovom veku” (SME,
22 September 2020)
<https://domov.sme.sk/c/22493644/sudna-rada-navrhuje-prezidentke-odvolat-z-funkcie-sudcov-v-dochodkovom-veku.html>
