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.

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]

In Figure 1, you can see a timeline showing the appointment and end-of-term dates for all current and recent judges of the Slovak Constitutional Court. Each line reflects a judge’s 12-year term (in the case of judge Laššáková you can see that her resignation cut the term short).

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. 

First, Parliament may find it less burdensome or costly to conduct one large selection process for multiple judicial vacancies rather than organising several smaller, piecemeal rounds of hearings. Joining te two selection processes would reduce the logistical and administrative workload associated with each nomination. This includes fewer documentation tasks, such as examining candidates’ CVs, assessing academic and professional publications, and fulfilling statutory publication and notification duties of the Parliament towards the public. A consolidated process could also streamline the scheduling of public hearings and committee deliberations, thus reducing the overall cost, both in terms of time and financial resources, borne by the committees, individual MPs, and their staff. Of course, cost saving should, in no circumstances, lead to delays in appointment to the Constitutional Court, but I guess there is a silver lining to our current predicament.

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.

Suggested citation: Šimon Drugda, “Judicial Vacancies and Political Strategy: Mapping the Future of the Slovak Constitutional Court” (slovakconlaw, 23 May 2025) <https://slovakconlaw.blogspot.com/2025/05/judicial-vacancies-and-politica-strategy.html>

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[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>

[2] The next opening after judge Baricová will be in December 2029, when judge Duriš retires (provided that all of the other judges currently sitting on the Court serve their full terms). Technically, judge Baricová is also the Court’s most senior judge in terms of age. Under the new retirment cap introduced in 2020, she would be required to resign from office in November this year when she turns 72, but sitting judges at the time were exempt from its application.

[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

Chart of the Day: Changes in the Population Size of Slovak Judges over a Decade

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.

Suggested citation: Šimon Drugda, “Chart of the Day: Changes in the Population Size of Slovak Judges over a Decade” (slovakconlaw, 3 May 2025) <https://slovakconlaw.blogspot.com/2025/05/httpsslovakconlaw.blogspot.com202505changes-in-population-size-of-slovakjudges.html.html>

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[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>