The Constitutional Court of Slovakia has been operating without a judge for one year and seven months following Judge Jana Laššáková’s resignation in September 2023.[1] This prolonged vacancy raises concerns about the Court’s ability to operate effectively and uphold its constitutional duties. While the other 12 judges, especially the President of the Court, have been taking on more work to compensate for the vacancy, this situation is unsustainable in the long run.
In Slovakia,
the appointment of a new judge to the Constitutional Court is a two-step
process: Parliament selects a candidate, and the President makes the final appointment.
However, this process has stalled at the initial stage.
During this parliamentary term, three selection rounds have taken place—all
unsuccessful. In the first round, five candidates were proposed, but none
received the required 90 votes (a simple majority in the repeat vote). The
second round saw just one candidate, who failed to gain sufficient support. The
ruling coalition has yet to explain why it has been unable or unwilling to
nominate a suitable candidate.
Figure 1: Votes for or against a candidate and abstentions in all three
selection rounds.
Constitutional
Court President Ivan Fiačan held a press conference, expressing concern about the Court’s
growing backlog of cases. He criticised the lack of progress in filling the
vacancy and noted that recent legal amendments aimed at streamlining judicial
appointments had proved ineffective.[2] Fiačan is
contemplating using his authority to address the Parliament directly on this
issue (as per Article 20(1) of the parliamentary Rules of Procedure). Although
this power does not enable him to force action, it would likely draw public
attention and exert indirect pressure on lawmakers.[3]
This is not
the first time that the Slovak Constitutional Court has been left understaffed
due to political deadlock.[4]
Amending actors have previously tried to limit bad-faith delays in the
appointment process by changing the Constitution, but the changes have just
resulted in new forms of strategic obstruction.
In fact, since the 2020 amendment to the
Constitution, there is a way for the President to break a deadlock in appointing
judges to the Court, but only if some candidates for the position have already
been selected. Article 134(2) of the Constitution specifically provides that if
the Parliament fails to select a candidate for a vacancy on the Constitutional
Court within two months of their term of office concluding[5]
or within six months of an early termination (because of a resignation,
removal, or death of a judge), the President may break the deadlock by appointing
a judge from a pool of candidates that have already been selected prior. The
flaw of this mechanism is that it was designed with large population changes on the Court
in mind.
When the Court was established in 1993, there
were no staggered terms of office, which created the problem of a complete change
on the Court’s bench every term. To illustrate the issue, nine of the thirteen
judges sitting on the Court will leave their offices in 2019. When these large
population changes occur, the selection and appointment of new judges is often
a longer process, with a lot of institutional back and forth and multiple
voting iterations, which will lead to a pool of candidates being selected and
potentially available to the President if need be, to break a deadlock. That is
not the case now, with only a single seat open and no candidates selected by
the Parliament since 2023, there is no way to break the deadlock, and the
process is stuck.
But why
obstruct? Why does the majority not just appoint their preferred candidate for
the position? To understand why, let us unpack the controversy a bit more.
During the
January 2025 hearing of the only candidate for the opening on the
Constitutional Court, Prof Lívia Trellová, two opposition MPs in the Constitutional Committee criticised the state
of the selection process.[6]
MP Vančo questioned why the government was ignoring the vacancy, suggesting
that it could be holding the seat open for General Prosecutor Žilinka to step
down, or potentially even the PM Fico, who had controversially applied to be
a judge on the Constitutional Court in the past.[7]
MP Dostál did not want to speculate about the motives of the parliamentary
majority for not filling the vacancy, but he also criticised the delays.
The interesting
thing about this interaction is that not only is the government ignoring the
Court, but also the opposition and seemingly all the nominators who can propose
candidates to the selection process. Of course, if the nominators do not see
a credible signal that the parliamentary majority genuinely wants to fill
the vacancy, they may be discouraged from sending nominees for a hearing.
The way the
Parliament has developed its selection power over time involves
additional actors at the entry level of the appointment process.[8]
The Act on the
Constitutional Court (Act No 314/2018 Coll.) specifies several entities that are authorised
to propose individual candidates for selection by Parliament (Art 15(1)).
Typically, the nomination authority is granted to the heads of key
constitutional bodies, political representatives, and professional or academic
institutions, all of which have a vested interest in ensuring high-quality
appointments to the Constitutional Court.
Some of
these institutions are particularly well-suited to support Parliament in both
identifying potential candidates and evaluating their qualifications. For
instance, the President of the CC often puts forward candidates from among law
clerks, while the General Prosecutor may nominate individuals from the Public
Prosecution Service.[9]
This design addresses the potential challenge faced by MPs, who, despite
holding the right to select candidates for the Constitutional Court, may lack
the expertise to assess the candidates’ professional competence and reputation
thoroughly.
In theory, then,
the nominators work as “noise gates,” filtering out unsuitable candidates and
only letting through the ones worthy of the office. If the nominators cannot
fill the selection process with enough candidates for Parliament to select two
for each vacancy as the Constitution prescribes, then either there is not
enough suitable talent on the market, or the nominators do not or refuse to
work as intended.
As
I mentioned earlier, the lack of a credible signal indicating the
intention to fill the vacancy on the Court may discourage the nominators from
supplying the process with a sufficient number of nominees, which feeds the
cycle of inaction. If
nominators perceive that their efforts will be in vain due to political
deadlock or lack of commitment to the appointment process, they may choose not
to participate actively, further stalling the process. The lack of such a
signal can also deter individual candidates from putting themselves forward and
seeking sponsorship of their application from a nominator.[10]
This
situation reveals a deeper issue with the selection mechanism: while the legal
framework allows for a multi-actor nomination process designed to ensure
quality and merit, it ultimately depends on political will and cooperation. Without
it, the system’s safeguards against unqualified appointments become irrelevant,
and the process grinds to a halt. The system could even be open to direct
applications, cutting the nominators out of the loop, and the Parliament could
still opt to block the process because it is cheaper to delay than select the
wrong candidate for the position.
What is
missing is an incentive for Parliament to fulfil its constitutional role on time,
a skin in the game. Currently, the one entirely in control is Parliament, and
obstruction is cheap. Delays in appointments do not affect the Parliament. Failed
selections do not cost anything. If the Constitutional Court is not staffed
fully in the foreseeable future, it could hinder its decision-making on complaints
and judicial review cases. But the government only gains because most of the highest
salience cases are directed against its own legislation. In a situation where
the government does not control a stable majority, the second-best strategy is
to do nothing.
[1] Veronika Prušová “Z Ústavného súdu odchádza Jana Laššáková. Bývalá
tvár Smeru končí po šiestich rokoch” (Denník N, 6 September 2023)
<https://dennikn.sk/3554911/z-ustavneho-sudu-odchadza-jana-lassakova-byvala-tvar-smeru-konci-po-siestich-rokoch/>;
and “Na Ústavnom súde chýba jeden sudca už rok aj sedem mesiacov” Zdržal to
Pellegrini ako predseda parlamentu (Denník N, 29 April 2025)
<https://dennikn.sk/minuta/4608822/>
[2] Katarína Cimborová, “Ústavný súd pod tlakom. Vyše 17-tisíc návrhov,
chýbajúci sudca a slová o rekordnej záťaži” (ta3, 3 May 2025)
<https://www.ta3.com/clanok/992559/ustavny-sud-pod-tlakom-vyse-17-tisic-navrhov-chybajuci-sudca-a-slova-o-rekordnej-zatazi>
[3] Simon Drugda, “Can the President of the Slovak Constitutional Court
Defend It?” (I·CONnect Blog, 2 July 2019) <https://www.iconnectblog.com/can-the-president-of-the-slovak-constitutional-court-defend-it/>
[4] In 2014-2017, the President refused to appoint what he argued were
unqualified candidates for three vacancies on the Constitutional Court, finally
backing down after the Court, as a judge in its own case, ordered him to act. In
2019, there were delays in appointing the first three and then six Constitutional
Court judges because of delays by the Parliament. See generally “The parliament
only elected three candidates for Constitutional Court judges” (The Slovak
Spectator, 21 May 2019)
<https://spectator.sme.sk/politics-and-society/c/parliament-elected-only-three-candidates-for-the-constitutional-court-judge>
[5] Newly, if the term of office af a judge concludes, the serving judge
will stay in office until their replacement has been appointed, which should
eliminate problems with open vacancies but does not necessarily prevent delays.
[6] “Rokovanie výboru: Ústavnoprávny výbor NR
SR” (Národná rada SR – MediaPORTÁL, 30 Janurary 2025) <https://tv.nrsr.sk/vyborydetail/11693>
[7] Tatiana Jancarikova, “Ousted Slovak PM Fico seeks top court job” (Reuters,
7 January 2019)
<https://www.reuters.com/article/world/ousted-slovak-pm-fico-seeks-top-court-job-idUSKCN1P11UG/>;
and “Parliamentary constitutional committee stuck due to Fico” (The Slovak
Spectator, 28 January 2019)
<https://spectator.sme.sk/politics-and-society/c/parliamentary-constitutional-committee-stuck-due-to-fico>
[8] Simon Drugda, “Changes to Selection and Appointment of
Constitutional Court Judges in Slovakia” (2019) 102 Právny obzor
(Special Issue) 14
[9] When I say a particular nominator can assess the quality of a
candidate, there is also the possibility that strategy or institutional
self-interest may play a role in a particular nomination. In an efficient
system, if a nominee made a bad faith nomination, they would be punished by a
reputational or other sanction, ideally discouraging such attempts. That might
not be the case if the system is captured. For example, we have seen such
criticism of the President of the Judicial Council for her first nomination to
the Constitutional Court in 2019 because she nominated Monika Jankovská, who
was later implicated in a corruption scandal. “Jankovskú by už predsedníčka
Súdnej rady na ústavnú sudkyňu nenavrhla” (Rádio Express, 29 November
2019)
<https://www.expres.sk/204119/jankovsku-by-uz-predsednicka-sudnej-rady-na-ustavnu-sudkynu-nenavrhla/>
[10] In 2019, multiple candidates criticised the selection appointment
process and refused to partake in it further. Take, for example, prominent civil
rights lawyer and activist Kovačechová stating in an interview: “The way the
parliamentary majority approached the selection showed not only great contempt
for the Constitutional Court as such, but also for us - the candidates.” Veronika Prušová, “Poslanci pohŕdajú
obyvateľmi tohto štátu, hovorí Kováčechová o voľbe ústavných sudcov” (Denník
N, 13 June 2019)
<https://dennikn.sk/1497663/poslanci-pohrdaju-obyvatelmi-tohto-statu-hovori-kovacechova-o-volbe-ustavnych-sudcov/?ref=mwat>
