In November 2020, Hans Petter Graver and I presented the intended changes in the judiciary structure and the separation of powers in Norway and Slovakia. We brought these two examples of emerging judiciary reforms that might differ in outcome from reforms in Hungary and Poland. The examples of Norway and Slovakia, as changes in progress, were presented as reforms for efficiency and a better standard of delivering decisions. We claimed that not every interference in the status quo of judicial independence is necessarily an attack. The end was left open for an expectation whether the changes proposed by the Norwegian and Slovak governments would pass the parliaments.
A few weeks ago in Slovakia, after the last step of the reform was achieved, the coalition crisis broke out in full scope. Furthermore, after a two months long ultimatum, the liberals left the coalition. This step also meant the resignation of the Justice Minister, who was responsible for the judicial reform over the last two years. Now is the right time to summarize how Justice Minister Mária Kolíková succeeded in her efforts.
In this text, I will present the development in the Slovak reform of the judiciary, show the main changes and in Part II, conclude the similarities and dissimilarities within the Visegrad countries.
Prologue: No smoke without fire
In the Slovak context, we can see two main events that led to the judiciary’s reform. The first was the long-term influence of private and state actors on the judiciary escalated in the outbreak of the “Threema” scandal, which was revealed in the 2019 massive corruption scheme among the judiciary, law enforcement, politicians, and business members. It led to the public’s discontent, which resulted in a strong mandate awarded in the election in February 2020, which gave the new government enough votes in the National Assembly to take over a significant reform of the judiciary. The former event served as a legitimization of the latter.
The outrageous crisis of legitimacy of the judiciary provided a perfect opportunity for the interference of the legislative and executive power into the judicial power. Both scenarios were possible at that moment, particularly – the authoritarian way and establishment of political control over the judiciary or making the judiciary more accountable to retrieve its legitimacy in the eyes of the public without enhancing the political control.
Reform plans had been attempted for years, but only after the Threema scandal did public attitudes embrace the idea of enacting significant changes in the judiciary. Here is a summary of the reform that started its journey on the soil of the National Assembly with the constitutional amendment in December 2020 and finished with the enactment of the new court map in April 2022.
- Reform of the Judicial Council of Slovak Republic (JCSR)
The announced reform called for the reform of the role, composition, and powers of the Judicial Council. The JCSR finally acquired its constitutional definition, as it was before, only implied by the Constitutional Court (CCSR). The JCSR became “the constitutional body of judicial legitimacy.” It is now considered the institution where judicial politics are realized. The Constitution’s wording was changed not to prioritize autonomy or independence but legitimacy.
The quota of members nominated by the National Assembly, the President of the country, and the government remained the same, with three seats for each. However, these bodies are no longer allowed to nominate judges. Altogether, judges nominate nine members from a pool of judges and other branches of power, also nine members of non-judges.
A more controversial part of the reform may be the overruling of the CCSR to adopt an explicit constitutional rule allowing for the dismissal of a member of the Judicial Council before the expiration of his term of office, without a need to provide reasons. This step clarified that the members of the JCSR are representatives of the body that selected them. At this point, CCJE saw a problem of violation of autonomy.
- Disabling of Review on the Compliance of Constitutional Acts with the Constitution
In 2019, the Constitutional Court of the Slovak Republic (CCSR) strengthened the rigidity of the Constitution with its decision PL US. 21/2014, saying that not everything included in the Constitution falls within the amending competence of the political majority. As a reaction to PL US. 21/2014, the National Assembly amended the Constitution, writing down explicitly that the CCSR does not have the competence to review the compliance of constitutional acts with each other or with the Constitution. The President of the CCSR communicated his strong disapproval.
The lengthy discussion on the duty of the CCSR to protect the “material core” that has not been mentioned in the Constitution explicitly has been divided among those who support the “power of the sovereign” and those who support the CCSR as “a guardian of the rule of law.” After the constitutional amendment, the answer is clear. Even if there is “the material core,” there is no authority to enforce it.
- Immunity of Judges
The initiative on the functional immunity of judges aimed to create more accountability. Such a step is likely a consequence of the “Threema” scandal, where some judges were accused of arbitrary decisions that unlawfully benefited one of the parties. The Criminal code amendment stated that “a judge could face disciplinary and criminal liability for delivering a legal opinion that is arbitrary, unsubstantiated or otherwise ignoring the wording of legislation or case law.”
The legislator perceived functional immunity as a refutation of decision-making accountability. After the amendment, judges are still protected against criminal prosecution if they act bona fide, but they can face charges for “bending the law” – the arbitrary application of the law.
After one year, this instrument of accountability remains to be controversial. The proponents of judicial autonomy and civil society organizations highlight the possibilities of misuse of this instrument. This institute’s most visible examples of usage are those used against judges in cases that have dealt with politically visible figures and therefore criticized as misused for political pressure.
- Creating the Supreme Administrative Court of the Slovak Republic (SACSR) and a New Court Map
Based on the explanatory report, the SACSR ought to “contribute to the protection of constitutional principles, rights, and values, in particular in the context of feedback to public authorities.” The SACSR, often labeled as a small constitutional court, was supposed to become the apex court of administrative judiciary, to relieve the CCSR from a part of the extensive agenda, and become a body of disciplinary judiciary for judges and prosecutors, and in the future, possibly advocates.
The creation of the SACSR was portrayed as one of the essential parts of the reform. After the novelization of the Constitution and legislation, it became clear that the difficult part would not be to get enough votes in the National Assembly but to convince the judges to get on board. Problems with selecting the first President of the SACSR were only the first sign of resistance from judges. Poor participation of judges in selection for the positions of judges at the SACSR followed. The judges of the Supreme Court were supposed to pass interviews in the JCSR to move from the collegium of Administrative Law at the Supreme Court to the newly established SACSR. This requirement caused judges to refuse to apply. On the one hand, this resistance allowed the JCSR select experts on administrative law from outside the judiciary. However, on the other, it resulted in the launch of the SACSR with only 21 judges instead of the planned 30.
The central part of the judicial reform was a reduction of first-instance courts from 54 to 30 and appellate courts from 8 to 3. The primary object of the reform has been to improve the effectiveness of the courts. The Justice Minister planned to have at least three judges at each court for each kind of agenda. This objective seems to show the minister’s priorities: the fight against corruption and the support of transparency, perhaps as a reaction to previous years’ failures. Other goals were to improve accessibility, the speed of proceedings, the quality of decisions, and efficacy.
The part of the reform on the court map happened to be the last and the most challenging task. The judges’ resistance was also empowered by the campaigning of the individual members of the National Assembly, both from the opposition and the majority coalition. Especially those members of Parliament, coming from towns that were supposed to lose the court seat, were firmly against it.
The outcome has been labeled “halfway.” The number of regional courts was not reduced from 8 to 3 as planned; however, their agenda will be specialized. The new court map established a new branch of administrative courts detached from general courts. It also transformed eight district courts in the two largest towns – Košice and Bratislava- into five city courts (one in Košice and four in Bratislava, each with a specialized agenda). Furthermore, the reform reduced 54 district courts to 33, maintaining some former seats of district courts as organizational units. All these outcomes seem genuine in attaining the goal of centralization of the court agenda in order to provide higher specialization of judges and a higher standard of delivering justice.
The court map was also essential for getting financial support for the judicial reform from the EU’s recovery plan. It was a missing piece of the whole puzzle of judicial reform necessary for the Slovak application for the first €458 million from the Recovery and Resilience Plan. Critics of the reform had argued that the lack of communication with municipalities and judges created a situation when the financial support from the recovery plan was endangered.
The judicial reform passed in a version that resembles a tough compromise between the Justice Minister following the plans in the Matovič government program statement and judges, local interests, and judicial associations. However, after the resignation of Justice Minister Mária Kolíková, who fought for the implementation of the reform, and after the departure of the liberals from the Heger’s government, it is difficult to predict the survival of the reform. The new Justice Minister Viliam Karas, former chairman of the Slovak Bar Association, has not shared his views on the reform. However, the Bar Association strongly critiqued the proposed changes during the implementation process. Part II of this article on the Slovak judicial reform will conclude on the similarities and dissimilarities within the Visegrad countries.