Judicial Reform in Slovakia: How to deal with “bad” judges?

Marek Domin

Comenius University

One of the most serious issues currently confronting Slovakia, except for the global COVID-19 pandemic, is the crisis in the judiciary. In Slovakia, courts have enjoyed extremely low public confidence for a long time. The problem deepened further earlier this year, when serious suspicions surfaced linking high-ranking judges to persons suspected of serious crimes. Thirteen judges were charged and detained, including a vice-president of the Supreme Court and an ex-judge who also served as deputy Minister of Justice only a few years ago.

After the February election to the National Council (Slovak parliament), a wide coalition came to power in Slovakia, describing the fight against corruption, including the cleansing of the judiciary, as its main goal. On 13 July 2020, the Ministry of Justice submitted a proposal for significant changes in the judiciary, including not only amendments to more than 20 statutes, but also an amendment to the Constitution. The proposed reform includes, for example, changes in the composition of the Judicial Council of the Slovak Republic (a body proposing candidates for judges), the establishment of the Supreme Administrative Court, changes in proceedings before the Constitutional Court or retirement of judges after reaching a certain age. This blog post will focus on one proposed change only, perhaps the most problematic one, namely, the complete deletion of the provision of Article 148, par. 4 of the Constitution, which reads: “A judge or a lay judge from the ranks of citizens may not be prosecuted for his decisions; this applies also after the termination of his term of office.”

At present, as a result of this provision, judges can only be prosecuted for their decisions disciplinarily, not criminally. This means that judges can only be prosecuted by special senates composed of both judges and other lawyers, although these prosecutions can result in removal from office. Of course, if a judge commits a criminal offense by conduct other than decision-making (for example, committing a traffic offense), they can be held criminally liable. By way of comparison, the Slovak Constitution also immunizes members of the National Council from criminal responsibility, but only for statements and voting within their duties.

If the proposed amendment is passed, Slovak judges could be criminally liable for their decisions, even before the end of their term of the office. The Ministry justified the proposed reform by the fact that there are no reasons to maintain the broad judicial immunity if the judge formulates their opinion on the basis of proper arguments and explains it properly. However, a judge could be not only disciplinarily but also criminally liable for a legal opinion that is arbitrary, unsubstantiated or otherwise ignores the wording of legislation or case law. There is no doubt that the proposed change is a response to the current crisis in the judiciary and the perception that some past judicial decisions have been arbitrary.

The Ministry acknowledges that the existing immunity of judges protects the independence of the judiciary. However, the Ministry says that the protection was especially important after 1989 during the transformation of Slovak society towards democracy and the rule of law. It is said that society has since adopted other safeguards at the constitutional level to protect the judiciary from unacceptable interference, such as the establishment of the Judicial Council in 2001. According to the Ministry, the immunity of judges is now perceived by society not as a necessary institutional guarantee of the independence of the judiciary, but as an abused prerogative of individual judges using it to make arbitrary decisions bordering on abuse of power.

In addition to the deletion of Article 148, par. 4 of the Constitution, the proposed reforms to the judiciary include an amendment to the Criminal Code to introduce a new crime called “abuse of the law”. This crime could be committed by a judge who “arbitrarily applied the law” in a way that resulted in damage to, or an illegal benefit for, a certain person. However, a key problem of the proposal is the vagueness of the criminal prohibition. What does it mean for a judge to “arbitrarily apply the law”? If interpreted broadly, the new crime could potentially be misused to prosecute judges whose decisions are simply unpopular or politically inconvenient. The formulation of the new crime thus seems as arbitrary as the arbitrariness it is supposed to fight against.

In practice, the aforementioned defect of a newly introduced crime could lead to a wave of criminal reports from litigants dissatisfied with the outcome of their legal disputes. Although a large proportion of such reports would probably be assessed as unfounded, the prospect of such reports could have a chilling effect on judicial decision-making. The result might be to make judges more restrained or more passive in performing of their duties. This might lead to judges making decisions based on considerations other than their best opinion of the law, as they are bound to do by their oath.

The basic role of the courts is to ensure justice. Judicial independence is essential to this role. Judicial independence is also part of the material core of the Constitution, as the Constitutional Court stated in the famous decision PL. ÚS 21/2014.

I agree that the Slovak judiciary is in crisis. I also agree that this crisis must be resolved by reinforcing the liability of judges for the performance of their duties. However, I am not sure that the solution proposed by the Ministry meets the basic principle of constitutional law, the principle of proportionality. It is true that the independence of the judiciary need not have absolute priority over other values with which it may come into conflict. An appropriate balance must be struck between the independence of the judiciary on one hand and holding judges accountable for unlawful decisions on the other. It is questionable whether the proposed reform ensures this balance.

The Slovak judiciary is at a crossroads. If the Slovak Republic really wants to be governed by the rule of law, as Article 1, par. 1 of its Constitution declares, it is imperative that the judiciary is reformed. However, concrete changes need to be further discussed. We have to try to introduce changes that will not only pursue a noble goal, but also include as many safeguards against abuse as possible. One way or another, Slovakia is expecting an interesting autumn, at least from the point of view of constitutional law.

Marek Domin holds a PhD in Constitutional Law and is an associate professor in Constitutional Law at the Faculty of Law of the Comenius University in Bratislava (Slovakia).

Suggested citation: Marek Domin, ‘Judicial Reform in Slovakia: How to deal with “bad” judges?’ IACL-AIDC Blog, (30 July 2020) https://blog-iacl-aidc.org/2020-posts/2020/7/30/judicial-reform-in-slovakia-how-to-deal-with-bad-judges