Updating the Dataset on Presidential Pardon (working paper No Mercy)

I have updated the data on presidential pardons and amnesty decisions in Slovakia, which now covers the entire period from 1993 to 2025. This dataset compiles statistics on pardon applications, granted pardons, amnesty pardons, and amnesties issued by presidents and acting heads of state. It includes a codebook and an individual tab with a presentation of the data for each president. The data is compiled based on reporting by the Office of the President, accessible at: <https://www.prezident.sk/page/milosti-a-amnestie/>.

Constitutionally, the president has the power to grant mercy in Slovakia through individual pardons or amnesties. Both mechanisms serve as discretionary tools for mitigating the legal consequences of a criminal conviction; the harshness of the law. The pardoning power includes the ability to remit or reduce a final sentence, expunge a conviction, or conditionally suspend the execution of punishment, including the temporary deferral or interruption of a sentence during the clemency process. Pardoning is based on a request for pardon and supporting documents prepared by the Minister of Justice. In the event of presidential incapacity, the acting president (PM) may exercise the pardon power.

Banking on Integrity: Should Slovakia’s Central Bank Governor Stay in Office?

At the end of May, the Special Criminal Court in Slovakia found Peter Kažimír, the current governor of the Slovak National Bank (NBS), guilty of bribery committed during his tenure as Minister of Finance. Kažimír allegedly bribed František Imrecze, then head of the Financial Administration, to expedite tax proceedings concerning VAT refunds for a group of companies. Kažimír was fined 200,000 EUR. The court ruled that he would face a one-year prison sentence should he fail to pay the fine, but the conviction is not yet final.[1]

This decision marks a significant moment in Slovakia’s ongoing struggle with corruption and its institutional implications. Based on Transparency International data, Slovakia is at the tail of the perception of corruption, and the situation has deteriorated since the government of PM Fico returned to power. [2] 

Judicial Vacancies and Political Strategy: Mapping the Future of the Slovak Constitutional Court

The Constitutional Court of Slovakia has been working one judge short for over a year, following judge Jana Laššáková’s resignation at the end of September 2023. Questions have been raised now about the motivation of the Parliament to hold the seat open. At the January hearing for the sole nominee to the Constitutional Court (even though legally there should be two candidates put forward for each vacancy) opposition MPs voiced concerns about the selection process, speculating that the delay might be strategic—possibly to reserve the position for General Prosecutor Žilinka should he resign, or even Prime Minister Fico.

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.

Controversial NGO Law Passes through the Slovak Parliament

In April, the Slovak Parliament passed a controversial piece of legislation meant to curb the work and life of NGOs and other civil society organisations.[1] Ostensibly to make their activity more transparent, but in reality, to show force.[2] The ruling coalition made several moves to limit the influence of NGOs and thus stifle public scrutiny of the executive.

Slovakia has a rich history of social movements and a strong civic sector dating back to the early years of the Republic and even before that, the Velvet Revolution.[3] Last year, it was reported that there were approximately 17,000 different non-governmental organisations and groups active in the country.[4] However, Robert Fico’s governments gradually began to view NGOs and civil society organisations antagonistically as potential sources of illegitimate influence and political opposition. As such, they sought to repress them.

We could already see early signs of this in 2018, the year in which the large-scale anti-government protests, following the murder of journalist Ján Kuciak and his fiancée Martina Kušnírová, resulted in PM Fico’s resignation and the collapse of his Cabinet. Fico, at the time, suggested that the protests were organised by NGOs controlled by George Soros—a populist right-wing trope that has been recurring in his speeches even today. He floated the idea of curbing the influence of NGOs briefly before resigning in shame.[5] Fico has been back in power since 2023[6] and seems inclined to move Slovakia more to the right, towards the Hungarian model of illiberal democracy.[7] 

New Code of Conduct for High-Ranking Public Officials in Slovakia?

The Slovak government has introduced a new Code of Conduct for high-ranking public officials.[1] The proposal is not yet effective, but it is nearing the end of the interdepartmental review process, during which various government bodies, NGOs, and the public can provide comments.[2] The government is now considering the submitted comments to determine which ones must be implemented to improve the proposal. If critical comments are impossible to implement, it may even change course by scrapping it altogether.

While the adoption of ethics codes is generally a welcome development in terms of improving the quality of the executive and public service, this particular proposal has attracted criticism for three reasons: it unduly concentrates power under the PM withouth a legal basis, restricts the freedom of association of civil servants and top officials with NGOs, and also highlights the government’s own ethical misgivings. On the last point, as I have written on this blog, it was recently revealed that the Defence Minister in Fico’s Cabinet failed to declare a seaside villa owned by his wife in Croatia, which led to a debate about ethics in government and transparency.[3] 

Unamendability Preserved in Slovakia, but only as a Last Resort

On January 30, 2019, the Slovak Constitutional Court invalidated a constitutional amendment for breaking the implicit material core of the Constitution. It was a historic first, not only for Slovakia but also for the broader region, as no other European court had previously established the doctrine of an unconstitutional constitutional amendment without textual support in the constitution. This is a critical distinction, because the stickiness of the unamendability doctrine, or any new doctrinal development, depends on domestic normative sources justifying such a development as well as the power of the court, its popular support and the acquiescence of the losing party (often the legislature or executive).

The amending actors in Slovakia did not acquiesce, however, nor did they hesitate to adopt a new constitutional amendment rejecting judicial review of constitutional change in retaliation. The opposition challenged this action, arguing that a judicially enforced doctrine of unamendability is a necessary component of a modern-day liberal democracy.

Then, at the end of May 2022, the Constitutional Court finally had its say. The Court opted for a passive-aggressive approach, issuing what is colloquially known as a quasi-meritorious judgment. The court rejected the petition in a procedural ruling but supplied it with the reasoning that would fit better with a meritorious decision. A quasi-meritorious decision indicates that the Court wants to speak on the subject but cannot for whatever reason. In this case, the Court rejected the petition because the amendment it was supposed to review prevented it from reviewing constitutional amendments.

In the decision, the Courts confirmed its previous position that the Constitution, or at least its core, is unamendable and those core principles may, in the extreme, require judicial protection. The Court continues to maintain that the amending actors are not the absolute sovereign and are, in fact, limited in the exercise of great power by the basic constitutional framework delimited by The People at the moment of founding.

In the view of the Court, the Constitution is not value-neutral: "Although every legal norm is fundamentally changeable and revocable, from the point of view of the Constitution adopted in 1992, the basic principles of a democratic and rule of law (even without such explicit wording) are immutable." These values express the essence of the constitutional law posited by the sovereign (but identified by the Court through its case law), which can be further articulated by the amending actors to the extent that the values are not broken.

The Court held that with the adoption of the constitution, the "unlimited sovereignty of the citizens was transformed into the sovereignty of the state on its territory, exercised by a system of delegated powers." The three delegated powers are limited in competence and ought to be exercised to, among other things, protect democracy from retrogression. So the amending actors can do wrong, but the Court will generally exercise restraint when it comes to constitutional change. The Court accepted that the Court itself is also a limited power, which means that it cannot, in the time of ordinary politics, review a constitutional amendment.

The Court essentially found that, absent extraordinary circumstances, functional judicial review of constitutional change is not part of the material core. In extreme cases, however, of a core violation that has the intensity to change the character of the Slovak Republic as a democratic state based on the principle of the rule of law, the Court must intervene as the "constitutional guardian." If the amending actors were to overreach, the interpretation of the Constitutional Court's own competences would have to be extensively adapted to it to ensure the integrity of the founding document.

Suggested citation: Šimon Drugda, “Unamendability Preserved in Slovakia, but only as a Last Resort” (slovakconlaw, 16 June 2022) <https://slovakconlaw.blogspot.com/2022/06/unamendability-preserved-in-slovakia.html>