ISSN: 2560-1601

Vol. 20, No. 1 (SK)

July 2019

Slovakia political briefing: Why is not capable of electing all Constitutional Court judges? Peter Csanyi

1052 Budapest Petőfi Sándor utca 11.

+36 1 5858 690 Kiadó: Kína-KKE Intézet Nonprofit Kft. [email protected] Szerkesztésért felelős személy: Chen Xin

Kiadásért felelős személy: Huang Ping china-cee.eu 2017/01

Why is Slovakia not capable of electing all Constitutional Court judges?

Nine vacancies were formed at the Constitutional Court in February, with the Parliament supposed to elect double the number of candidates, from which the President is expected to appoint nine judges to the bench. To date, however, Parliament has elected only 14 nominees. It seems that the Parliament is not capable of electing the needed number of judges or just does not want to do it. This failure is considered mainly as the failure of the incumbent ruling coalition. Former president Andrej Kiska already appointed three judges in order to end the gridlock at the Constitutional Court. Hence, currently the 13-judge court is staffed with seven judges. President Zuzana Čaputová announced that she will put any further appointments on hold until the Parliament furnishes her with the complete list of candidates. Seeing as the Parliament has still failed to elect the required number of candidates to date, the next vote is scheduled to be held in September after the Parliament summer recess.

Situation at the beginning of election process:

The direct cause behind the failure of voting in parliament was a dispute inside the tripartite government coalition. Most-Híd, the smallest party in the government coalition, was opposed to the candidacy of for Constitutional Court judge. As a result, Smer-SD tried to push through a secret manner of electing the candidates, which would have made it easier for Fico to forge behind-the-scenes alliances. However, neither Most-Híd nor Smer-SD’s second coalition partner, the Slovak National Party (SNS), nor the opposition backed this proposal. Faced with a high likelihood of open defeat, Fico withdrew his candidacy, and Smer’s MPs cast invalid votes, thus blocking the election of judges.

The paralysis of the Constitutional Court was to a great extent an effect of Robert Fico’s ambitions which also met with resistance from President Andrej Kiska. Fico served as the prime minister for many years and had to step down in spring 2018 due to a government crisis caused by a wave of protests held under the slogan ‘For a decent Slovakia’. He chose the position of the presiding judge of the Constitutional Court as a good place for his political retirement. Most likely, he was planning to reach a compromise with the president, who would thus rid himself of one of his greatest political opponents. However, a deal like this would have damaged the

1 meticulously constructed image of Kiska as an opponent of behind-the-scenes deals and political corruption which he plans to capitalize upon in party politics after the expiry of his current term in June this year.

Most probably, by blocking the election of candidates for Constitutional Court judges, Smer-SD wanted to bring about a situation where at least part of the judges would have been nominated by a new president. The plan was that, in the case of victory of Smer-SD’s candidate, Robert Fico would also be able to put forward his candidacy. He has long been looking for an adequate position to take during the next stage of his political career. Obviously, this plan did not work, because Smer-SD’s presidential candidate, Maroš Šefčovič, lost the election and Zuzana Čaputová became the new .

The problems with electing candidates for Constitutional Court judges have exposed the tension inside Smer-SD. Prime Minister (who is also the deputy president of Smer-SD) has criticized the MPs for withdrawing (following Fico’s instructions) from arrangements made inside the government coalition concerning the election of candidates for judges. Placing himself in opposition to the highly controversial leader of Smer-SD, Pellegrini has been consistently building the public trust he will need during the struggle for Fico’s legacy inside the party. According to the opinion polls before the presidential elections, Pellegrini, with a 40% approval rating, performed only slightly worse than former President Andrej Kiska, who topped the polls, while only one in four Slovaks trusted Fico. Pellegrini has presented a vision of politics that is based on consensus to a much greater extent than that of Fico and emphasizes the need for transparency in politics. However, the situation during the votes proved that Robert Fico’s position inside the party remains unshaken – no other politician from Smer- SD has backed Pellegrini, while Fico has demonstrated that he has had clear support from the parliamentary grouping and has remained one of the central figures in Slovak politics.

Current situation regarding the Constitutional Court judges elections:

After the presidential elections, when it was obvious that Smer-SD’s plan did not work, Slovak lawmakers on April 3, 2019 picked six candidates for vacant seats on the constitutional court in a step towards unblocking the country's top judicial body six weeks after most of its judges stepped down. All six candidates were professional judges or attorneys, not known to be aligned with any party, though they were backed only by coalition not opposition lawmakers.

2

It meant that the Parliament had failed again to elect the 18 candidates for Constitutional Court judge, from which then President Andrej Kiska was expected to pick nine to fill the posts that were vacated in mid-February. Although the coalition reportedly agreed to elect eight candidates, only six eventually got through. Candidates Miloš Maďar and Pavol Malich did not receive enough votes. The senior ruling party Smer-SD did not know why that had happened, claiming it was a coincidence. Some Smer-SD MPs were alleged to have an issue with the two candidates not voted through. Former President Andrej Kiska criticized MPs for not doing their job, because the Constitutional Court could not work properly with only seven judges, but he also believed that parliament would approach the protection of citizens' rights responsibly and elect the remaining candidates for Constitutional Court judge next day - on April 4, 2019.

Finally, the then president selected the judges of eight candidates elected by the parliament in early April. Former President Andrej Kiska officially appointed only three new judges for the Constitutional Court: Ivan Fiačan, Ľuboš Szigeti and Peter Molnár on April 17. At the same time, he named Fiačan as new president of the court, while Szigeti will become his deputy. The president said that he trusted all three candidates, and stressed that they were coming to the court during hard times. He also warned the judges that the trustworthiness of the entire court would depend on them. The decision surprised the ruling parties and experts, since they expected him to name four new judges. However, the most important fact was that the court already had the minimum number of judges to create a plenum.

The next hearing was scheduled on May 2 and 3, the vote on May 9, 2019. MPs were seeking a compromise again in order to find the remaining candidates for the empty posts at the Constitutional Court at the parliamentary session. Even though 25 candidates registered for the vote, there were only three new names on the list. The rest had already tried unsuccessfully to get elected in the previous two votes in the parliament. The new candidates for the post of Constitutional Court judge included two lecturers, Monika Jurčová from Trnava University and Vieroslav Júda from Matej Bel University in Banská Bystrica. The third one was lawyer Patrik Palša from Prešov. On the other hand, State Secretary of the Justice Ministry Edita Pfundtner (Most-Híd) and Smer-SD chair Robert Fico's schoolmate and judge Eva Fulcová ran for the third time. Also former chair of the Sieť (Network) party Radoslav Procházka tried to win the nomination for the third time, although he had managed to acquire only 22 votes in the first vote. However, for example, Radovan Hrádek, who represented the far-right People's – Party Our Slovakia (ĽSNS) in a proceeding over its dismissal, did not run again.

Due to the fact the Parliament could not agree on the candidates, the next vote was scheduled at the end of May. Although the parliament was supposed to elect 10 candidates for

3 the vacant Constitutional Court judge posts, it chose only four. This happened despite the negotiations between the coalition and opposition held prior to the vote. Lawyer Pavol Boroň, prosecutor Marek Tomašovič and Constitutional Court advisor Martin Vernarský received enough votes in the third secret ballot on May 21, and lawyer Patrik Palša received enough votes on May 22. According to the governmental coalition nothing terrible would happen if there were only 10 judges in the Constitutional Court for some time. However, the then president confirmed that he would not appoint either of the four candidates unless there were a complete list of 18 candidates as required by the Constitution.

Nothing new happened during the next vote, which was held on June 20. Parliament again failed to elect enough candidates to fill the empty judicial posts on the Constitutional Court. Although MPs were supposed to elect six candidates in the fourth vote, they chose only one: lawyer and former chair of the now-defunct Sieť (Network) party, Radoslav Procházka, who gained 74 votes. It happened, although President Zuzana Čaputová had said earlier that she would have appointed the new judges only after parliament gives her six names. She already had some candidates left to her by her predecessor, Andrej Kiska.

The dispute within the governing coalition escalated. of the junior coalition Slovak National Party (SNS) also said that he was disappointed by the election outcome and claimed he had done everything to make the Constitutional Court function again.

He also said that there was the possibility of early elections in October because he felt that PM Peter Pellegrini had different attitudes to those of Smer-SD chairman Robert Fico.

The next (and the last one before the Parliament summer recess) round of the election took place on June 25. Parliament once again elected only a single Constitutional Court judge candidate in its repeated vote – Justice Ministry state secretary Edita Pfundtner. Seeing as the Parliament has still failed to elect the required number of candidates to date, the next vote is scheduled to be held in September.

Slovakia has become the third formerly communist, central European country where high-level judicial appointments have been caught up in power politics, after governments in and Hungary sparked European Union alarm over efforts to place loyalists in top court posts. Frankly, the election of candidates for the Constitutional Court judge has become a farce in Slovakia. Nine vacancies were formed at the Constitutional Court in February. The Parliament was expected to elect the number of candidates, from which the President would nine judges to the bench. To date, however, Parliament has elected only 14 nominees. Former president Andrej Kiska already appointed three judges in order to end the gridlock at the

4

Constitutional Court. Hence, currently the 13-judge court is staffed with seven judges. President Zuzana Caputova announced that she would appoint the rest of Constitutional Court judges only if the Parliament gave her the complete list of candidates.

5