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

Delays in Appointment to Slovak Constitutional Court

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.

Suggested citation: 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>

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[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>