CCJE-BU(2020)3Strasbourg, 9 December 2020

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES(CCJE)

Opinion of the CCJE Bureau
following a request by the CCJE member in respect of Slovakia
as regards the reform of the judiciary in Slovakia

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INTRODUCTION
The CCJE member in respect of Slovakia informed the CCJE, in a letter dated 4 November
2020, about the forthcoming reform of the judiciary in Slovakia, which was approved by theGovernment and submitted for approval to Parliament on 1 October 2020. He emphasised thatthe Slovak judiciary has been facing critically low public confidence for a long time and in sucha situation, the Government’s intention to implement a reform of the judiciary that would restore
the necessary public confidence is fully legitimate. On the other hand, he expressed concernthat several aspects of the forthcoming reform can limit, in the interests of ‘cleansing thejudiciary’, the already existing constitutional safeguards of the independence of the judiciary ina way that could jeopardise Article 6 of the European Convention on Human Rights (hereinafterthe ECHR). Specifically, he has pointed that according to the draft of the Constitutional Act
amending and supplementing the Constitution of the Slovak Republic:••••

without any prior consultations with representatives of the Slovak judiciary and without
any public discussion, the possibility of the Constitutional Court to assess thecompliance of constitutional laws with the Constitution will be explicitly excluded;
an explicit possibility shall be introduced to remove the President, the Vice-President,
and a member of the Judicial Council of the Slovak republic, at any time before theexpiry of their term of office;a possibility shall be introduced to transfer judges to a lower court without consent whenchanging the system of courts;
functional immunity, which is currently the same for judges of general courts, judges of
the Constitutional Court and representatives of Parliament, is to be limited only inrelation to judges of general courts, while introducing a new crime of ‘bending the law’,
which can be committed only by a judge, lay judge or arbitrator and which, in view ofthe vague wording ‘arbitrarily applies the law’, already in itself creates room for aninadmissible interference by the executive into the independence of the judiciary,
represented by judges of the general courts, in the form of their unjustified/purposefulprosecution.

Having examined the letter of the CCJE member in respect of Slovakia in the light of European
standards, including the Council of Europe Committee of Ministers’ Recommendations, theCCJE and the Venice Commission Opinions and standards, the CCJE Bureau has delivered
the below Opinion comprising a legal analysis of the above-mentioned amendments.

OPINIONA.
In the opinion of the CCJE Bureau, the forthcoming amendment of the Constitution
which provides for an explicit possibility to remove the President, the Vice-President, and amember of the Judicial Council (hereinafter „JC“) at any time before the expiry of their term ofoffice is not in conformity with the CCJE standards and European standards concerning thejudicial independence in general.
As stated in the CCJE Opinion no. 10 (2007) on the Council for the Judiciary at the service ofsociety (hereinafter “Opinion 10”), members of the JC (both judges and non-judges) in orderto fulfil its general mission, namely to safeguard both the independence of the of the judicial

2system and the independence of individual judges,1 should be granted guarantees for theirindependence and impartiality.2
The security of the fixed term of the mandates of members of JCs and functional immunity
serve the purpose of ensuring their independence from external pressure. They allow them tocarry out their work without having to constantly defend themselves against, for instance,
unfounded and vexatious accusations. Members of JCs often have to make decisions that areunpopular or will not please judges or authorities who elected or appointed them. In subjecting
them to an unrestricted power of removal, their independence will be seriously reduced,
making them too dependent on the wishes of those who elected or appointed them, and thus
removing them from their role of pursuing the goals of an independent and efficient judiciary.
Measures which interfere with the security of tenure of the members of JC raise a suspicion
that the intention behind those measures is to influence its decisions. The intended measure
will inevitably lead to politicisation – or at least the impression of politicisation – of the activitiesof the JC, as its members will depend on the judges, government, parliament, and thePresident not only for their appointment, but also when exercising their mandate. In theCCJE’s opinion this will not contribute to enhancing public confidence in Slovak judiciary.
A mechanism of removal without having to justify reasons for removal is specific to politicalinstitutions such as governments which act under parliamentary control. It is not suited forinstitutions, such as the JC, whose members are elected for a fixed term. The mandate ofthese members should only end at the expiration of this term, on retirement, on resignation ordeath, or on their removal from office in cases of misbehaviour so gross as to justify sucha course. Depending on the nature of the misbehaviour, it is strongly recommended to deal
with the misbehaviour cases through the usual disciplinary or criminal procedure, which should
be clearly set out by the law. The proportionality principle should be adequately taken into
account and the dismissal of a member of a JC should only be applied as a measure of lastresort.
B. According to the Constitution currently in force, a judge can be transferred to another court
only with his/her consent or based on a decision of the disciplinary panel. According to thedraft amendment to the Constitution, this provision is to be supplemented in such a way thatthe judge’s consent to the transfer will not be required when changing the court system if thisis necessary to ensure the proper administration of justice, the details being provided by law.
The main Council of Europe standard in this matter is enshrined in Recommendation
CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence,efficiency and responsibilities (hereinafter “CM/Rec(2010)12 Recommendation”), as follows:“A judge should not receive a new appointment or be moved to another judicial office without
consenting to it, except in cases of disciplinary sanctions or reform of the organisation of thejudicial system.”3
It has to be noted that, in the CCJE Bureau’s opinion, the aforementioned paragraph regarding
a possibility of transferring a judge without his/her consent cannot be viewed and understoodseparately from other principles aimed at establishing standards of irremovability andconsequently independence of judges. For that reason, the implementation of the proposedamendment will only comply with European standards provided that principles of security oftenure and irremovability as key elements of the independence of judges are observed.
Accordingly, judges should have guaranteed tenure until a mandatory retirement age, where
1 Opinion 10, para 8.
2 Ibidem, para 36.
3 CM/Rec(2010)12 Recommendation, chapter VI “Status of the judge”, subsection “Tenure”, para 52.

3such exists;4 the terms of office of judges should be established by law;5 and a right to remedy
should be guaranteed.6 Furthermore, CM/Rec(2010)12 Recommendation states: “Wherejudges consider that their independence is threatened, they should be able to have recourse
to a council for the judiciary or another independent authority, or they should have effectivemeans of remedy.”7
Similarly, the European Charter on the statute for judges (hereinafter “Charter”), adopted in
1998, in dealing with matters of appointments and irremovability stipulates that “a judge holding
office at a court may not in principle be appointed to another judicial office or assigned
elsewhere, even by way of promotion, without having freely consented thereto. An exception
to this principle is permitted only in the case where transfer is provided for and has beenpronounced by way of a disciplinary sanction, in the case of a lawful alteration of the court
system, and in the case of a temporary assignment to reinforce a neighbouring court, themaximum duration of such assignment being strictly limited by the statute, without prejudice tothe application of the provisions at paragraph 1.4 hereof”.8 In the case of decisions affecting
selection, recruitment, appointment, career progress or termination of office of a judge, theCharter envisages the intervention of an authority independent of the executive and legislative
powers9 within which at least one half of those who sit are judges elected by their peers
following methods guaranteeing the widest representation of the judiciary.
Although Magna Carta of Judges (hereinafter “Magna Carta”) does not expressly address theissue of transfer of judges, it points out that judicial independence shall be guaranteed inrespect of judicial activity and in particular in respect of recruitment, nomination until the ageof retirement, promotions, irremovability, training, judicial immunity, discipline, remunerationand financing of the judiciary.10
The most problematic proposal in this respect seems to be that the proposed wording of theamendment to the Constitution creates room for judges to be transferred to a lower court
without consent when changing the system of courts. To minimise the risk arising from the
proposed amendment precise and clear provisions should be further on established on alegislative level where as a minimum it should be guaranteed: that a judge can only betransferred to a court of the same instance; that transfer should not infringe judge’s right torespect to private and family life; and that all the costs incurred by the transfer will be coveredby the state.
C. As far as the proposed change of rules regarding the prosecution of judges are concerned
the CCJE Bureau points out that the principles of the Magna Carta and Opinions of the CCJE
are largely disregarded. In the opinion of the Bureau, there is a risk that the envisaged
constitutional changes are in violation of (or infringe upon) the principles of judicialindependence.
The Committee of Ministers of the Council of Europe has clarified two fundamental principles
as to the liability of judges: “The interpretation of the law, assessment of facts or weighing ofevidence carried out by judges to determine cases should not give rise to criminal liability,

4 Ibidem, para 49.
5 Ibidem, para 50, first sentence.
6 Ibidem, para 8.
7 Ibidem.
8 Charter, para 3.4.
9 Compare ibidem, para 1.4.
10 Magna Carta, para 4.

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except in case of malice”11 “When not exercising judicial functions, judges are liable under civil,criminal and administrative law in the same way as any other citizen.”12
Magna Carta states: “Judicial independence and impartiality are essential prerequisites for theoperation of justice.”13 “Judicial independence shall be guaranteed in respect of judicialactivities and in particular in respect of recruitment, nomination until the age of retirement,promotions, irremovability, training, judicial immunity, discipline, remuneration and financing of
the judiciary.”14 ”Judges shall be criminally liable in ordinary law for offences committed outside
their judicial office. Criminal liability shall not be imposed on judges for unintentional failings in
the exercise of their functions.”15
The Venice Commission, in its turn, has constantly endorsed the principle that judges must notenjoy any form of criminal immunity for ordinary crimes committed out of the exercise of theirfunctions. As it considered in its Report on the Independence of the Judicial System, “it isindisputable that judges have to be protected against undue external influence. To this endthey should enjoy functional (but only functional) immunity (immunity from prosecution for acts
performed in the exercise of their functions, with the exception of intentional crime, e. g. takingbribes) which does not exclude disciplinary proceedings against judges for professional
misconduct.”16
It must be stressed that the notion of judicial (functional) immunity is part of the wider conceptof judicial independence. Judicial immunity is not an end in itself but serves the independenceof the judge who should be able to decide cases without fearing civil or criminal liability forjudicial adjudication done in good faith. The Constitution currently in force in Slovakia observes
these principles insofar it provides that no judge will be prosecuted for decision-making.
The proposed amendment intends to change this and reduce the existing protection of the
judicial independence by introducing a very broad and vague definition according to which theprotection against prosecution is only granted for a “legal opinion expressed in a decision
unless a criminal offence has been committed thereby.” The new wording clearly entails apotential risk of a vexatious pursuit of criminal proceedings against a judge who is disliked.
The CCJE reiterates that criminal liability should not be imposed on judges for unintentional
failings.17 As stated in its Opinion no. 18 (2015) on the position of the judiciary and its relation
with the other powers of state in a modern democracy (hereinafter “Opinion 18”): “Inaccordance with the fundamental principle of judicial independence, the appeal system is inprinciple the only way by which a judicial decision can be reversed or modified after it has been
handed down and the only way by which judges can be held accountable for their decisions,
unless they were acting in bad faith.”18 The CCJE Bureau therefore takes the view that theadoption of the proposed amendment would not only substantially reduce the existingguarantee of judicial independence and open a door to interpretation and politically motivatedmisinterpretation, but also lead to more (political or disciplinary) pressure on judges.

11 CM/Rec(2010)12 Recommendation, para 68.
12 Ibidem, para 71.
13 Ibidem, para 2.
14 Ibidem, para 4.
15 Ibidem, para 20. See also Opinion no. 3 of the CCJE on the principles and rules governing judges’

professional conduct, in particular ethics, incompatible behaviour and impartiality, para. 52-54 and 75.
16 CDL-AD(2010)004, para. 61.
17 Magna Carta, para. 20.
18 Opinion 18, para. 23.

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The CCJE Bureau recognises that corruption among judges is a main threat to society and thefunctioning of a democratic state. In its Opinion No. 21 (2018) on preventing corruption among
judges, it has pointed out that corruption is interlinked with the concept of judicial
independence. It has recalled that the member States should fight corruption in the judiciary;that they should focus on the robust and impartial prosecution (disciplinary and criminal) ofcorruption cases while fostering at the same time a true culture of judicial integrity; and that
adequate remuneration and adequate working conditions together with a transparent, fair andperformance oriented professional career system are key elements of ensuring the judicial
independence of judges.
Nevertheless, as far as the new legislation is based on the justification that it pursues theprevention of corruption, this is not a convincing argument for the restriction of theindependence of the judiciary in the way it is proposed. Fighting corruption should not impair
the principle of judicial independence. Judicial independence is fundamental for the rule of law
and thereby the basis for the fight against corruption. The CCJE Bureau, noting that anticorruption campaigns are often used as an excuse to justify limitations of judicial
independence, strongly opposes this approach, which threatens to influence the judicialsystem(s) by limiting judicial independence.
Another aspect that requires careful consideration is the government’s proposal to change Art.
136, paragraph 3 of the Constitution. Under the existing law the Constitutional Court gives its
assent to a pre-trial detention of a judge and of the General Prosecutor. According to the
proposed amendment the Constitutional Court will no longer be allowed to review and allow
pre-trial detention of judges (and of the General Prosecutor). The assent of the Constitutional
Court is an important shield contained in the law against false accusations of judges: itsconsent is needed to initiate criminal proceedings against judges. The intended removal of thismechanism takes away (another) safeguard for judges (which are then subject to normal pretrial detention rules). One cannot overlook that the parliament has already approved theintroduction of a new crime of ‘bending the law’, which is committed by a judge, lay judge orarbitrator, if he/she arbitrarily exercises the law when making a decision and thereby harms orotherwise benefits another, which, in view of the vague wording ‘arbitrarily applies the law’,already in itself creates room for abuse. The CCJE is therefore reluctant to agree with theexplanation in the explanatory memorandum to the amendments, which states: “The society
has undergone some significant development. The Slovak Republic has become part of theEuropean Union and a number of other safeguards have been adopted at the constitutionallevel (e.g. the establishment of the Judicial Council) protecting the judiciary from inadmissible
interference from another branch of power.”
Last, in this context, the question arises as to whether, according to the government proposing
judicial reform, the Slovak Republic has achieved such a degree of transformation that there
is no longer threat of an inadmissible interference by the executive into the independence ofthe judiciary represented by judges of the general courts in the form of unjustified/purposefulprosecution of them; and therefore it is appropriate to remove the consent of the Constitutional
Court to the detention of a judge, why these safeguards remain in relation to judges of theConstitutional Court and members of parliament as representatives of the legislative power.
Or, on the contrary, if it is still necessary to maintain constitutional safeguards against possible
unreasonable/purposeful prosecution of representatives of the legislature and judges of theConstitutional Court by the executive, why these safeguards should not be maintained inrelation to judges of the general courts. Such a selective approach only exacerbates theconcern that the removal of existing constitutional safeguards will create scope for possible
inadmissible interference into the independence of the judiciary.

6CONCLUSIONS
Measures which interfere with the security of tenure of the members of JC raise a suspicion
that the intention behind those measures is to influence its decisions. The intended measure
will inevitably lead to politicisation – or at least the impression of politicisation – of the activitiesof the JC, as its members will depend on those who elected or appointed them not only for
their appointment, but also when exercising their mandate. The mandate of the members of
the JC should only end at the expiration of their term, on retirement, on resignation or death,or on their removal from office in cases of misbehaviour so gross as to justify such a course.
The implementation of the proposed amendment providing for a transfer of judges to a lower
court without consent when changing the system of courts will only comply with European
standards provided that principles of security of tenure and irremovability as key elements of
the independence of judges are observed. In this respect, precise and clear provisions should
be further on established on a legislative level.
The adoption of the proposed amendment limiting the functional immunity of judges would not
only substantially reduce the existing guarantee of judicial independence and open a door tointerpretation and politically motivated misinterpretation, but also lead to more (political ordisciplinary) pressure on judges. Although acknowledging the legitimacy of these concerns,
fighting corruption should not impair the principle of judicial independence.

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