Brief history

Establishment and development of constitutional judiciary in Slovakia until 1989

In the late eighteenth century, the concept emerged, initially in the British colonies of North America and in France, that governmental authority should be constrained by a document of supreme legal authority known as a Constitution. This Constitution symbolized a social contract between a sovereign people and the state they established and entrusted with the exercise of governmental authority. Consequently, efforts were made to compel state authorities to adhere to the limits set by the Constitution.

In the post-Napoleonic era, the focus of discussions on establishing a mechanism for controlling the constitutionality of legal acts shifted to Central Europe, particularly to Switzerland, the German states, and notably, the Habsburg monarchy. Vienna emerged as the main center of this debate, where in 1885, the renowned German-born legal theorist Georg Jellinek published a work titled "Constitutional Court for Austria." His ideas influenced several other legal scholars, including the Czech theorist František Weyr, and notably, one of the most significant jurists of the 20th century, the Austrian Professor Hans Kelsen. Kelsen's approach was based on a strict hierarchy of legal norms, with the Constitution occupying the highest position, binding even the legislator in the enactment of laws. According to the theory of the separation of powers, the control over the legislator was not to be carried out by general courts but by a specialized centralized body for safeguarding constitutionality, operating outside the regular court system. This body had the authority to annul laws for their unconstitutional nature, unlike the American courts, with such decisions having universal validity rather than being limited to specific cases.

Based on this conceptual framework, the first two constitutional courts in the true sense of the term were established practically simultaneously in 1920/1921, one in Austria and the other in Czechoslovakia. Friendly academic disputes sometimes arise between Czech and Austrian colleagues regarding which country had the first constitutional court, but there is no definitive answer. The Austrian Provisional Constitution of 1919 did indeed envision such a body, but it lacked the power to annul laws already enacted. Even before enactment, it could only oversee laws of the provinces. On the other hand, the Czechoslovak Constitution of 1920 was the first to establish a constitutional court with the authority to annul laws already in force. However, by the time Czechoslovakia implemented its law and appointed its first judges, the Austrian constitutional court had already been operational for several months under the late 1920 Constitution. The truth is that Czech and Austrian jurists who played key roles in developing the concept of a constitutional court maintained frequent and sometimes amicable communication. Following the dissolution of Austria-Hungary and the establishment of independent Austria and Czechoslovakia, drafters in both countries incorporated provisions for a constitutional court into their respective constitutions. It is important to acknowledge that Austrian influence in theoretical matters was dominant, and the work of the Austrian Constitutional Court was significantly more impactful.

The first Czechoslovak Constitutional Court was composed of seven judges serving ten-year terms. Two judges were elected by the plenary sessions of the Supreme Court and the Supreme Administrative Court respectively, while three were appointed by the President of the Republic, selected from among nominees presented by the Chamber of Deputies, the Senate, and the Sejm of Subcarpathian Rus. Notably, these constitutional judges continued to practice their professions, and the Court did not convene on a permanent basis. The primary role of the Constitutional Court was to assess the constitutionality of laws and urgent measures with the force of law. However, this function was exercised only once in 1922, and then the Court resumed its adjudicatory activities after a hiatus from 1931 to 1938, during which it lacked a sufficient number of judges due to the political crisis, until shortly before the outbreak of the war. It's worth mentioning that Slovaks were also represented on the court: Ivan Jurecký served as a substitute judge in the 1920s, and Adolf Záturecký even held the position of Vice-President in the 1930s. Therefore, while the first constitutional court in Slovakia may not have been highly active in terms of its caseload, it remains an important symbol of the region's legal history.

The significant development of constitutional judiciary occurred after the Second World War, primarily with the establishment of the (then still) West German Federal Constitutional Court and the Italian Constitutional Court, which served as models for the establishment of other constitutional courts around the world. In contrast, in Slovakia, the constitutional judiciary vanished for over 50 years. Despite the wartime Slovak State's Constitution assigning the task of overseeing the constitutionality of laws to the so-called Constitutional Senate, this body never rendered any rulings on the constitutionality of laws, and it is uncertain if it ever convened. Similarly, during the communist regime, the Bureau of the National Assembly was purported to assess the conformity of laws with the Constitution, but this function was largely nominal and lacked real substance.

Indeed, the 1968 Constitutional Law on Federation reintroduced three constitutional courts in Czechoslovakia: one federal and two in the republics. However, this wasn't a continuation of the democratic interwar traditions. Instead, the arrangement was largely adopted from the Yugoslav Federal Constitution of 1963. Nevertheless, this regulation had a significant impact on the current Slovak constitutional judiciary. It initially served as the foundation for the post-embassy Federal Constitutional Court and later influenced the Constitution of the independent Slovak Republic to a great extent. Several provisions outlining the powers of the Constitutional Court, which originated from the Constitutional Law on the Federation of 1968, still exist in our Constitution today.

The Constitutional Court of the Czech and Slovak Federal Republic (1991 – 1992)

The next chapter of constitutional judiciary in Slovakia is connected with the social changes brought about by the fall of the communist regimes in the countries of Eastern and Central Europe after 1989. In this period, we can speak of another "wave" of the establishment of constitutional courts, which included the Constitutional Court of the Czech and Slovak Federal Republic. The constitutional courts that emerged after 1989 were characteristic of the efforts to democratise society in the former Eastern Bloc countries and to establish a real separation of powers with a system of checks and balances.

The Constitutional Court of the Czech and Slovak Federal Republic consisted of twelve judges and each of the federal republics was represented by six judges. The competence of the Constitutional Court included both abstract and specific review of constitutionality and the giving of binding interpretations of the constitutional laws of the Federation. The term of office of the judges was supposed to be seven years, but the Constitutional Court ceased to exist after only one year of operation with the dissolution of the common state of Czechs and Slovaks on 31 December 1992. In spite of its short life, the Constitutional Court clearly subscribed to the concept of the substantive rule of law in its decision-making, which was subsequently followed by the Constitutional Court of the Slovak Republic.

The Constitutional Court of the Slovak Republic

The Constitutional Court of the Slovak Republic was established according to the Constitution of the Slovak Republic, which was adopted during the period of the Federation but was fundamentally designed as the constitution of an independent state. It commenced its operations on 17 March 1993, under the leadership of its first president, Milan Čič. Initially, the Constitutional Court comprised ten judges appointed for a seven-year term.

From its inception, the Slovak Constitutional Court was endowed with relatively extensive powers, reflecting a common trend among post-communist countries where robust constitutional courts were typically established in the early 1990s. Primarily, the Constitutional Court's core and most significant power was, and continues to be, to assess the compatibility of legislation with the Constitution, constitutional laws, and international treaties. Notably, among other constitutional courts, the Slovak Constitutional Court stands out in its ability to scrutinize virtually all legal regulations within the legal framework. This includes not only laws but also generally binding regulations issued by the government, ministries, and other central state administration bodies. Furthermore, it assesses the compliance of the latter with the law. Moreover, the original text of the Constitution granted the Court the power to review regulations of local government and local self-government. Review could be initiated by the President of the Republic, a group of at least 30 MPs, the Attorney General, and somewhat unusually, the Government. Additionally, a general court could file an application if it deemed a regulation applied in its proceedings to be incompatible with the reference standards.

The authors of the Constitution positioned the Constitutional Court among the few constitutional bodies tasked with overseeing the constitutionality and legality of elections, including referendums. However, the original conception regarding individual protection of constitutionality was quite limited. Constitutional complaints were only admissible from natural and legal persons against decisions of administrative authorities if recourse to another court was not available. Given that most administrative decisions could be contested before administrative courts, whose rulings were beyond the scope of review by the Constitutional Court, the constitutional complaint procedure held little significance during that period. Although citizens could also seek recourse to the Constitutional Court in cases of fundamental rights violations through so-called complaints, the procedures for such complaints were largely unregulated, rendering the Court's decisions primarily declaratory in nature.

An important, albeit somewhat unusual power, particularly during its initial term, was the authority to provide generally binding interpretations of the Constitution and constitutional laws. This power, derived from Article 128 of the Constitution, led to complex power struggles between the President of the Republic and the Prime Minister in the 1990s. One of the earliest decisions of the Constitutional Court involved a dispute over whether the President was obligated to fulfill the Prime Minister's request for the dismissal of a minister. The Constitutional Court determined that while the President must consider the request, there was no obligation to grant it.

Undoubtedly, the first term of the Constitutional Court from 1993 to 2000 was marked by dramatic events. No other Central European constitutional court played such a pivotal role in safeguarding the very essence of constitutionalism. From the outset of its decision-making activities, the Slovak Constitutional Court had to curb the expansionist tendencies of power. Although the court had limited opportunities during its initial period to develop traditional human rights jurisprudence, it steadfastly upheld the foundational principle of freedom protection: the principle of limited state power, which mandates that government must operate within the bounds of the law.

During the second term of office, spanning from 2000 to 2007, significant changes were implemented within the Constitutional Court of the Slovak Republic. Firstly, the number of constitutional judges was increased to thirteen, accompanied by an extension of their term of office to twelve years. Moreover, the Constitutional Court was endowed with additional powers, two of which hold great significance. One such power, introduced later but possessing the potential for greater importance, involves the assessment by the Constitutional Court, as a preventive measure prior to the calling of a referendum, of whether the constitution permits a referendum on a given issue at all. This authority, inherent in the constitutional courts of certain states, has the capacity to generate a substantial body of case law. It underscores the principle that in a state governed by the rule of law, not only are state authorities bound by the confines of the Constitution, but also the electorate participating in a referendum.

Furthermore, a proper constitutional complaint procedure was established. Since 2002, any natural or legal person has been entitled to challenge, through complaint, any final decision or action by any public authority believed to infringe upon their fundamental rights. However, this right is contingent upon the individual or entity having exhausted all available remedies before other courts. This expansion of powers led to the increase in the number of judges to thirteen, reflecting a significant surge in the workload of the Constitutional Court.

During the third term of the Constitutional Court spanning from 2007 to 2019, there was a significant surge in the number of constitutional complaints, reflecting an increased caseload for the Court. Additionally, the Constitutional Court was bestowed with a new power to verify whether the annulment of amnesties and pardons by the President of the Republic, undertaken by the National Council, adhered to constitutional principles. A notable ruling during this period was the 2017 decision affirming the constitutionality of the National Council's annulment of the so-called Mečiar amnesties.

Towards the end of its third term, the Constitutional Court further solidified its doctrine by emphasizing that certain constitutional principles are fundamental to the character of the Slovak Republic as a democratic and legal state, and cannot be compromised even through constitutional amendments. Termed as the substantive core of the Constitution, the Court declared unconstitutional specific provisions of the Constitution introduced by an earlier amendment concerning the vetting of judges in late January 2019.

In its fourth term since 2019, the Constitutional Court has faced unprecedented challenges. Initially, due to a political crisis, Parliament failed to elect a sufficient number of judge candidates, rendering the Court nearly dysfunctional for over half a year. Subsequently, the Constitutional Court had to adapt to functioning amidst the COVID-19 pandemic while responding to state authorities' measures to combat the pandemic. Several decisions during this period delineated the boundaries for interference with fundamental rights, encompassing issues such as the collection of telecommunications data and state-imposed quarantines. Notable rulings include decisions on the inadmissibility of a referendum on early elections and on the resignation of the government.


Create date: 2.8.2023 Last modified: 15.3.2024