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Attack or reform: Systemic interventions in the judiciary in
Hungary, Poland, and SlovakiaOÑATI SOCIO-LEGAL SERIES FORTHCOMINGDOI LINK: HTTPS://DOI.ORG/10.35295/OSLS.IISL/0000-0000-0000-1393
RECEIVED 3 JANUARY 2022, ACCEPTED 29 NOVEMBER 2022, FIRST-ONLINE PUBLISHED 6 FEBRUARY
2023

PETER ČUROŠ ∗Abstract
Is it possible to distinguish whether a government is willing to eliminate its
accountability or aims for public trust or efficacy growth? Moreover, which elements in
the government’s actions differentiate valid criticism from an attack on the
independence of the judiciary? This paper proposes an original approach toward
recognizing an attack on the judiciary. While previous approaches focused on thereformer’s motivation, adherence to international standards, or the requirement of the“tribunal established by the law,” this approach is looking for a kernel of judicial
independence and finds it in sufficient conditions for a judge’s free and impartial
decision. In the paper, changes in Hungary and Poland will be compared to the Slovak
judicial reform since 2020. While after three decades after the fall of state socialism,
Hungary, Poland, and Slovakia face similar problems of backsliding of the rule of law
and emerging populism, different motivations, interpretations, and outcomes of the
judicial reforms can be seen in Slovakia.

Key words
Central and Eastern Europe; judicial independence; Slovak reform of the
judiciary 2020; attack and reform

Resumen¿Es acaso posible distinguir si un gobierno está dispuesto a eliminar su
responsabilidad o si aspira a la confianza pública o al crecimiento de la eficacia? Por otrolado, ¿qué elementos de las acciones del gobierno diferencian una crítica válida de un
ataque a la independencia del poder judicial? Este documento propone un enfoque∗ Peter Čuroš is an assistant professor at the Institute of Political Studies, Polish Academy of Sciences,
Warsaw. Before, he was a postdoctoral fellow at the Institutt for Privatrett, Univeristetet i Oslo, member ofthe project Judges under Stress – The Breaking Point of Judicial Institutions Project. The project was financedby the FRIPRO program of the Norwegian Research Council and the University of Oslo (2019-2022). Contact
details: curos.peter@gmail.com

1Čuroš

original para reconocer un ataque al poder judicial. Mientras que los enfoques anteriores
se centraban en la motivación del reformador, la adhesión a las normas internacionales
o el requisito del “tribunal establecido por la ley”, este enfoque busca un núcleo deindependencia judicial y lo encuentra en las condiciones suficientes para la decisión libre
e imparcial de un juez. En el documento, los cambios en Hungría y Polonia se
compararán con la reforma judicial eslovaca desde 2020. Si bien después de tres décadasde la caída del socialismo de Estado, Hungría, Polonia y Eslovaquia se enfrentan aproblemas similares de retroceso del Estado de Derecho y populismo emergente, en
Eslovaquia se observan diferentes motivaciones, interpretaciones y resultados de lasreformas judiciales.

Palabras clave
Europa Central y del Este; independencia judicial; reforma judicial eslovaca 2020;
ataque y reforma

2

Attack or reform…

Table of contents
1. Introduction ............................................................................................................................ 4
2. What constitutes an attack .................................................................................................... 4
2.1. Not every interference with independence constitutes
an attack on the judiciary .................................................................................................... 6
3. Developments in Hungary and Poland .............................................................................. 7
3.1. Hungary ......................................................................................................................... 8
3.2. Poland ........................................................................................................................... 10
4. Slovakia.................................................................................................................................. 13
4.1. Threema Scandal ......................................................................................................... 13
4.2. Constitutional reform in 2020 ................................................................................... 14
5. Transmission belts and golden eggs .................................................................................. 21
5.1. Hungary ....................................................................................................................... 21
5.2. Poland ........................................................................................................................... 225.3. Slovak interference ..................................................................................................... 23
References .................................................................................................................................. 25
Legal sources ...................................................................................................................... 32
Case law .............................................................................................................................. 323Čuroš

1. Introduction
Particularly in new democracies, where the rule of law institutions are still relatively
new, and the balance between judicial independence and accountability is still inprocess, it is difficult to recognize an attack in its initial stages. Political power
represented by the parliaments and administration may be tempted to have control over
the judiciary. Such a control secures that the courts will not turn down governmental
policies (Bugarič and Ginsburg 2016). It creates a temptation for unaccountableadministration, particularly the ambition of administrations whose actions are on edge
or clearly against the law or constitution. Such an effort leads to “dikastophobia” - adangerous populist strategy to prevent judges from controlling the executive andlegislative powers being controlled by the judicial authority (Gajda-Roszczynialska andMarkiewicz 2020).
How is it possible to recognize if the administration is willing to avoid its accountability
or is only looking for a growth of public trust and efficiency of the judiciary?
Any change of the status quo, which establishes more accountability of the judges or any
court-packing strategy, alarm that something sneaky might be going on. However, such
steps are sometimes necessary to maintain public trust if the trust in the judiciary is low.
Other instruments of judicial accountability are necessary for the effective
administration of justice (Kosař 2016). So when the parliamentary majority announces
the judicial reform, is it necessarily an attack, or might a reform be happening?
In liberal constitutionalism, it is a standard that the executive and legislative branches
accept to be under the administrative and constitutional judiciary review. It signifies theaccountability of political branches of the state power to the law. However, the “bad”
populists operate by removing the accountability that was once established (Halmai2019). The essence of populism aiming for authoritarian order builds on a capacity toenter legal rules and legal decision-making processes when these are perceived as
unpopular. In order to prove this capacity, the populist must either disempower thecontrolling mechanism or amend it to a favorable outcome.
Three decades after the fall of state socialism, Hungary, Poland, and Slovakia face similar
problems of backsliding the rule of law and emerging populism (Halmai 2012, Pech andScheppele 2017, von Bogdandy 2018). However, different motivations, interpretations,and outcomes of judicial reforms can be seen in Slovakia.
Section 2 of this article proposes a differentiation between an attack and a reform.
Moreover, it elaborates on the concept of judicial independence, which plays a crucialrole in this categorization. Section 3 presents summaries of the development of the
judiciary in Hungary since 2010 and in Poland since 2015. Section 4 compares thedevelopment in Slovakia since 2020 to the former cases. Finally, Section 5 detects the
crucial elements constituting attacks on the judiciary in all three cases.

2. What constitutes an attack
In everyday language, we use the word reform as a positive change that removes faults
and abuses in the pre-reform system. On the other side, we use an attack as a harmful
and illegitimate interference against the rules and possibly accompanied by physical or
symbolic violence.

4

Attack or reform…

There might be several points of view on what differentiates an attack as illegitimate
from reform as legitimate interference with the judicial system.
Firstly, a distinguishing characteristic of an attack on judiciary independence might be
the legislator’s intention (Sajó 2021). Does the legislator want to subordinate the judiciaryto its benefit, or does it want to make legal decision-making more predictable andeffective? This ground for differentiation resembles the concept of parrhesia. Parrhesia
is a concept that originated in ancient Greece, signifying “truth-telling” or “freespokeness”. It was, according to Michel Foucault (Foucault 2010), a core of ancientdemocracy. The institutional check of parrhesia was that the speaker risked ostracism ordeath if caught by the lie. In the modern age, it resembles the concept of the legitimacyof the state representatives in their actions. However, as Foucault admits, the parrhesia
system fell apart after Pericles’ death. It was not possible to distinguish between goodand bad parrhesia.
Similarly, parrhesia does not comply with populist rhetoric nowadays. Populist politics
may repeat the demand of the people and act upon it, but populist politics may also
solely pretend to act upon it while furthering private interest. Also, populist leaders may
be sincere in their pursuit while attacking the rule of law under false pretenses (Mudde
and Kaltwasser 2017). Sincerity in announced goals cannot give a satisfactory answer indistinguishing legitimate from illegitimate interference.
Secondly, formal compliance with international recommendations might be a decisive
element. When looking at the recommendations of the Consultative Council of European
Judges (CCJE; see Magna Carta of Judges, 2010), the European Network of Council for
the Judiciary (ENCJ; see ENCJ 2017), or the European Commission for the Efficiency ofJustice (CEPEJ; see Council of Europe 2011), these models propose how the judiciary
should be positioned in order to be fully independent. However, the judiciary may bevery independent on the paper while still under pressure from within the judiciary or
indirect political influence (Moliterno et al. 2018). On the other hand, it may contradict
basic principles of independence, such as the selection and appointment of judges bypolitical branches of state power, and still maintain factual independence (Moliterno etal. 2018). 1 This option does not provide satisfactory differentiation as it cannot tell aqualitative difference in deviations from the model solution.
Some help could be used by deriving the differentiation from the case law of theEuropean Court for Human Rights (ECtHR) and its interpretation of article 6 of theEuropean Convention on Human Rights (ECHR), particularly the interpretation of “theindependent and impartial tribunal established by law”. However, the ECtHR claimed
that the Convention does not require Member States to comply with any theoreticalconstitutional concept of interactions of state power branches. The ECtHR guideline
does not provide clear borders of an attack as it is building its interpretation on
individual cases.
In this article, a different categorization will be proposed. An attack on the judiciaryinterferes with the essential quality of the judiciary, telos of the third branch in the
democratic state. It is a legislative or administrative step that robs the judiciary of its
essential role, depriving it of its very essence. Such interference will be referred to as a
1

For example, federal judges appointed by the art. III of the US Constitution.

5Čuroš

golden egg. The golden egg is “a source of continual or guaranteed success, profit, or
wealth.”The golden egg of the attack on the judiciary is an element allowing manipulation of thedecision-making. It might also be a legal possibility to interfere with the decision-making
or to threaten judges with sanctions if they do not comply with the desired interpretationof the law. The egg is the kernel of the interference, while other changes in the judiciary
may be designed to protect this kernel from change and make this kernel function. These
auxiliary parts may weaken the judiciary’s independent position, but they do notestablish an attack if applied separately. These auxiliary changes will be referred to astransmission belts.
The golden egg’s presence may change the interpretation of the interference. If thegolden egg appears in the interference, all other steps may appear to be a transmission
belt for exploiting the golden egg. On the other hand, if the golden egg is not present,
other steps do not necessarily need to be seen as transmission belts. For example, court
packing has a negative connotation, but it does not need to be necessarily connected tomanipulate the rules (Kosař and Šipulová 2020b).
For this article, the attack on the judiciary is defined as illegitimate interference frompolitical branches of power to manipulate the decision-making in individual cases. The
attack aims at judicial independence with an ultimate goal of interfering with judicial
decision-making and so avoid government accountability for particular deeds according
to a need. 2 The attack will therefore be considered a change in safeguards of
independence of the judiciary which allows the executive or legislative power directly
or indirectly, for example, via a court president, to put a thumb on the scales inindividual cases. The attack is a change in the judge’s position as a neutral arbiter, whichallows any influence outside the judge to manipulate her impartiality. Someinterferences in the independence of the judiciary have the intensity and capacity tointerfere with judicial impartiality, and some do not. An attack will be considered aninterference that has such capacity.

2.1. Not every interference with independence constitutes an attack on the judiciary
It is essential to define the concept of judicial independence to identify attack-capableinterference. This paper does not focus on various notions of judicial independence, suchas the distinction between internal and external and the policies that should secure theformal independence of the courts and the judge. It focuses on the kernel of
independence as the condition for the judge to decide a case impartially to satisfy a rightto a fair trial. A legitimate legal system has to assure subjects that there will not be aparty whose arguments would prevail only because of the superior position towards thearbiter. It has to guarantee that no one stands above the law to prove itself. It has to beguaranteed that the arbiter will be provided conditions to be impartial and bring adecision based on rules officially agreed upon and published beforehand. The kernel of
independence is these conditions for impartial decision.
Judicial independence is insulation from interference by the electorate and the legislativeand executive branches with a judge’s decision-making (Moliterno and Paton 2014).
2

6

In a way how it is defined by the CJEU in Associação Sindical dos Juízes Portugueses (C 64/16), par.44.

Attack or reform…

However, it is not only about threats from outside the judiciary. Independence must be
secured from the executive, parliament (Gerovska, 2016, no. 48783/07), and judiciary
members (Agrokompleks, 2011, par. 137). Although judicial independence is often
discussed as a universal cure for problems of new democracies,3 it is not an essential
attribute of a judge. Though it substantially enhances the opportunities for judicial
impartiality, especially when the government’s interests are implicated in the case overwhich the judge presides.
Judicial independence is not a purely academic concept. It is also created and modeledby case law. For some time, the concept of independence of the judiciary was developed
mainly by the institutions of the Council of Europe and the ECtHR, elaborating on theinterpretation of art. 6 ECHR (Sramek, 1984, Langborger, 1989, Zielinski et al., 1999,
Mcgonnell, 2000, Kinský, 2012, Astráðsson, 2020, Xero flor, 2021). Only recently, the Courtof Justice of the European Union (CJEU) became passionately interested in the issue ofthe independence of the judiciary as well. 4
Judicial independence became the Lacanian objet petit a of liberal constitutionalism. The
concept has grown more significant and developed and become more robust thanisolating the third branch from the influence of the other two to secure conditions for
impartial decision-making. The courts, judicial associations, and academia developed
the concept of judicial independence that also spread to the processes of judicial
appointments (Ástráðsson, 2020), training, qualification (Gurkan, 2010), or length of theterm (Le Compte et al., 1981). However, there is a difference between interference whichamends the former and manipulating the outcome of the court proceedings.
Therefore it is necessary to recognize a difference between a breach of independence
when representants of executive, legislative or judicial power seek to affect the outcomeof cases pending before the court (Sovtransavto, 2002) via the removal of judges(Brudnicka, 2005), sanctioning of judges (Baka, 2016), or instructing of judges(Agrokompleks, 2011) from the auxiliary breaches of independence that reside in theinsufficient separation of the branches of state power. While both are breaches of judicial
independence, the severity of their outcomes is different. There is a qualitative difference
between them.

3. Developments in Hungary and Poland
Readers might have witnessed several years of reports from Central and Eastern Europethat the rule of law is under attack, particularly in Hungary and Poland (DirectorateGeneral for Justice and Consumers 2020). On the other hand, the responses from theofficials of these countries denied any resemblances of attacks, invoking that they are
doing reforms, reforms that are essential for the correct functioning of the state power(aw/PAP 2017, Balogh 2019).

Visible for example in the opinions of the CCJE: Consultative Council of European Judges 2022.
Associação Sindical dos Juízes Portugueses (C-64/16), Minister of Justice and Equality (C-216/18), Commission v
Poland – Independence of the Supreme Court (C-619/18), Commission v Poland – Independence of ordinary courts(C-192/18), AK v Krajowa Rada Sądownictwa (C-585/18, C-624/18 & C-625/18), Miasto Łowicz v Wojewoda Łódzki
(C-558/18 and C-563/18), AB v Krajowa Rada Sądownictwa (C-824/18), Repubblika v Il-Prim Ministru (C-896/19),
Romanian Judges Forum (C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19), etc.
347Čuroš

In the following lines will be provided argumentation that although politicalinterferences in Hungary, Poland, and Slovakia included court-packing strategies atboth constitutional and general courts, changes in judges’ disciplinary procedures, andchanges in Councils for the Judiciary, these three cases are very different.

3.1. Hungary
The situation in Hungary has been attracting academic attention for years (Kosař andŠipulová 2018, Kovács and Scheppele 2018, Drinóczi and Bień-Kacala 2019, GardosOrosz 2021, Szente 2021, Bencze 2021, Fleck 2021). The systemic attack on judicial
independence in Hungary has been profound. Armed with a supermajority inparliament, the government has amended the constitution (International Federation of
Human Rights – FIDH – 2016, Balogh 2019). The situation in Hungary is shaped by the
results of the last four parliamentary elections, which took place in 2010, 2014, 2018, and2022, when the political party Fidesz and Christian Democratic People’s Party received
enough votes to adopt a new constitution and to amend the institutional structure in
Hungary. It was possible to start with the changes on the constitutional level, whichenabled the parties in power to pass legislative amendments smoothly.
3.1.1. Firstly, New Constitution – Fundamental Law was adopted

Just one year into its term, the governing coalition amended its inherited constitution
twelve times (Kovács and Scheppele 2018). Finally, the National Assembly adopted a
new constitution. This step might not have been viewed with an alarm. The Hungarian
People’s Republic adopted the previous constitution in 1949, 5 and Hungary was the lastcountry of the CEE to have not created a new constitution after the fall of Communism.
Nevertheless, the constitution-making process was criticized (Venice Commission 2011)
for lack of transparency, omission of civil society from discussions, shortcomings in the
dialogue between the majority and the opposition, insufficient opportunities for publicdebate, and a brief timeframe for creation (Venice Commission 2011).
3.1.2. Limitation of the Constitutional Court

Hungary has a unicameral system, with the Constitutional Court (CC) as the strongest
check in the constitutional structure. Three strategies were followed to limit the CC. The
first was limiting the CC on what cannot be referenced in decision-making (TheFundamental Law of Hungary, Closing provisions, par.5.). Here, the CC is limited inreferring to its case-law dated before 1 January 2012.
Secondly, a court-packing strategy was used to amend the personnel composition of theCC (Kosař and Šipulová 2020b). Court-packing was initiated even before theFundamental Law came to force. In 2011 the original number of judges of the CC
increased from 11 to 15 (Act CLI, Section 7, par. 1). In addition, the term of the judges
was extended from 9 to 12 years, and the retirement age of 70 was abolished. In 2013, 11
out of 15 judges had been nominated by the ruling coalition of Fidesz-KDNP.
Thirdly, commands were set out to order what must be considered by the CC in its
decision-making. The third strategy was primarily directed toward the general courts,
58Although it was heavily amended in 1989.

Attack or reform…

although it affected the Constitutional court significantly. In 2018 the National Assembly
adopted the Seventh Amendment to the Fundamental Law of Hungary. In addition tocreating administrative courts, the amendment also stated that the starting point forjudges interpreting the law has to be an explanatory memorandum attached tolegislative proposals (Fundamental Law, art. 28).
3.1.3. Supreme court and ordinary courts

The second in line for dramatic change was the Supreme Court, which reverted to anolder name, Kúria, and received a new normative and personnel framework.
The lowering of the age limit from 70 to 62 6 caused an exodus of many judges. 7 The factthat the age limit for judges was decided to be invalid by the Constitutional Court did
not stop the reform from succeeding in its intention. In 2013 judges could seek
compensation or reinstatement, but many dismissed from Kúria were either unwilling
to return or had already passed the age of 70 by the time the CJEU released its decision. 8
The reform resulted in only a few judicial administrative leaders over 62 left in the
judiciary after 2012 (Meszaros 2020).
The president decides on the number of sitting judges and the appointment of new
judges (Section 128(3) of Act CLXI of 2011). Moreover, the president assigns judges andpresiding judges to chambers, appoints heads of department, and establishes the caseallocation scheme among chambers (Section 9(1) of Act CLXI of 2011). The Kúria
president also has significant powers as regards the role of the Kúria in ensuring theuniform application of the law by courts. 9 The position of the president is tightly
connected to politics. The parliament elects the Kúria president on the proposal of thecountry’s president from the pool of judges with a minimum of five years of judicial
experience.
3.1.4. Courts’ Administration

For the strategy of court-packing the Kúria and general courts, it was crucial to control
the selection and appointment of new judges, as the old judges were forced out due toCommission v Hungary (judicial retirement age), Case 286/12, EU:C:2012:687. “Declares that, by adopting anational scheme requiring compulsory retirement of judges, prosecutors and notaries when they reach theage of 62 - which gives rise to a difference in treatment on grounds of age which is not proportionate as
regards the objectives pursue.
7 Article 12 of the Transitional Provisions of the Fundamental Law. More specifically, the new maximum
retirement age rules led to the de facto dismissal of 20 out of 74 Supreme Court judges (Kosař and Šipulová
2018). “The vast majority of senior judges between 10 and 15% of all judges in the country, anddisproportionately including judges in the leadership of the courts were forced to leave the bench almost
immediately” (Kovács and Scheppele 2018).
8 In 2012 the Constitutional Court ruled, before the international criticism from CJEU, the provisions of the
Law on the Legal Status and Remuneration of Judges that lowered the mandatory retirement age of judges
to the general retirement age as of 1 January 2012 are unconstitutional. Decision 33/2012. (VII. 17.), CJEU
decision Commission v. Hungary, Case 286/12: “Declares that, by adopting a national scheme requiring
compulsory retirement of judges, prosecutors and notaries when they reach the age of 62 - which gives rise
to a difference in treatment on grounds of age which is not proportionate as regards the objectives pursue.
9 Regarding the later, in 2019, Kúria decided that the motion for preliminary rulling to CJEU was unlawful
due to its non-connection with the actual case that was decided. This decision also opened possibility for a
disciplinary sanction following such motion. This step also contributes to the isolation of judges and their
indirect criticism towards Kúria’s binding interpretation. See Judgment of the CJEU, IS (C-564/19).
69Čuroš

the lowered age limit. This part of the chain was supposed to be filled with the presidentof the National Office for the Judiciary (NOJ), which parliament established in 2012 (ActCLXI of 2011) as a one-person decision-making body for recruitment, promotion,
management of the court budgets, and disciplinary matters. 10 The body elected byjudges - the National Council of Judiciary lacked any significant power, and the powerof the NOJ was criticized as unbalanced due to the strong position towards judges. 11
Moreover, because of strong resistance from judges, the public, and the international
community against the influence of the justice minister on the new administrative courts,
the plan to establish an administrative judiciary in 2020 was abandoned. 12

3.2. Poland
The situation in Poland is now well-documented (Zoll and Wortham 2018, Sadurski
2018, 2019b, Śledzińska-Simon 2018, Mazur and Žurek 2018, Wyrzykowski 2019, GajdaRoszczynialska and Markiewicz 2020, Pech et al. 2021).
Before winning a majority of parliamentary seats in the 2015 election, PiS (Law andJustice Party) announced a significant piece of its philosophy: “legal impossibilismus”(Davies 2018). This concept means that major reform cannot be undertaken in postcommunist countries because of various elites’, including judges, entrenched interests,
and power. Adherence to this philosophy set the stage for PiS’s efforts to disempower
the courts, ostensibly to make its reforms possible.
Unlike in Hungary, where the majority in the single-chambered National Assembly
enjoyed a constitutional majority, in Poland’s two-chambered parliament, the United
Right acquired the “only” plain majority in the elections in 2015 and 2019. Therefore, theparliamentary majority in Poland lacked the numbers necessary to change theconstitutional framework and had to follow up with reform via legislation, decisions of
the lower chamber of parliament, presidential appointments, and appointments of thegovernment and minister of justice.
The Polish majority in parliament led the intervention through the Constitutional
Tribunal reform, the courts’ administration, the Supreme Court (SC), and finally,
ordinary courts.

Fundamental Law, Art. 25, par. 5. Initial concerns were conveyed already in 2011 by Commissioner for
Human Rights. See Hammarberg 2011, Commissioner for Human Rights 2012. The Venice Commission sent
also their concerns in March 2012 about the power of the president of the NOJ. The position of the NOJ was
criticized for having “crucial decision-maker in practically every aspect of the organization of the judicial
system”.
11 The position of the NOJ was criticized for having “crucial decision-maker in practically every aspect of
the organization of the judicial system” (Venice Commission 2012, par. 118).
12 Even though already incorporated in the Fundamental Law via Seventh Amendment in 2018. The
Parliament adopted Act LXI of 2019 on Postponing the Entry into Force of the Act on Administrative Courts,
which prevents Act CXXX of 2018 on Administrative Courts. At this moment the intention of establishing
the administrative courts has been stopped. See Kovács 2019.
10

10

Attack or reform…

3.2.1. Constitutional Tribunal

The Polish case started with a quite momentous court-packing strategy. As the rulingmajority did not have a constitutional majority, it could not increase the number ofjudges (Kosař and Šipulová 2020b).
In June 2015, the Civic Platform government changed the law under which the tribunal
judges were elected. Although the existing rule had been that the parliament could only
fill a seat on the final day of a judge’s term, the new rule stated that the parliament could
elect judges months ahead of an actual opening on the court (Kovács and Scheppele
2018). The parliament elected five candidates to tribunal seats on October 8th, but thepresident did not appoint them. One of the first steps of the newly elected eighth
parliament was to pass a law on the tribunal to reverse the previous government’s
nominations of those five candidates (Sadurski 2019a). 13
Subsequently, Sejm, the lower chamber of the parliament, revoked the former electionof the candidates and nominated new candidates, who were immediately appointed tothe position of tribunal judge by the president. 14
In reaction, a Constitutional tribunal ordered to appoint three judges that the seventhterm parliament had elected in October. The seats of the other two judges were to be
filled by the newly elected eighth Sejm. Neither the president nor Sejm followed thisdecision. 15
3.2.2. Changes on the Council for the Judiciary

The next step was the politicization of the Council for the Judiciary. As the Council is
supposed to safeguard the independence of courts and judges (Constitution of Poland,art. 186, par. 1), the takeover of this body is essential to seeking control over the judiciary.
The Council has a strong position in the recruitment and promotion of judges (Act of 8
December 2017, Constitution of Poland Art. 179). The Polish Council for the Judiciary
consists of 25 members (Constitution of Poland, Art 187). Before 2017, 15 of the 25
members were elected by their peers from a pool of judges. Four others wererepresentatives of Sejm, and two were representatives of the senate. The president
appointed one member, and the president of the Supreme Administrative Court, thepresident of the Supreme Court, and the justice minister were members.
Since the reform of 2017 (Id.), the 15 members that peer judges had elected were now
elected by Sejm. This created an imbalance. Previously, 17 out of 25 members of the
The Act of 19 November 2015 Amending the Act on the Constitutional Court, The Amendment modified
the provision in section 137 on appointment: as the candidate had to take the oath before the president of
the Republic “within thirty days of the date of [his or her] election”. And that “The taking of the oath shallcommence the term of office of a judge of the Constitutional Court.”
On 25 November 2015, during its second session, the eighth-term Sejm adopted five respective resolutions
on “the lack of legal effect” (w sprawie stwierdzenia braku mocy prawnej) of the resolutions on the electionof five judges of the Constitutional Court adopted by the previous Sejm on 8 October 2015. It also requested
that the president of the republic refrain from receiving the oath from those judges (See Xero Flor v Poland.
Par.18.). the Amending Act of 19 November 2015”.
14 The president of the republic received the oath from four of the judges on the night of 2-3rd December,and from the fifth judge on 9 December 2015. See Venice Commission 2016.
15 Moreover, they were denied for publishing by the government, what creates the final sage to fulfil therequirement for a ruling to become valid and binding.
1311Čuroš

Council were chosen from within the judiciary, but after 2017, 23 out of 25 members wereselected by the political branches of power. 16
3.2.3. Supreme Court

A 2017 law on the Supreme Court (SC) lowered the retirement age limit from 70 to 65.17
This step had significant consequences, for it signaled the end of service for almost 40%of the judges on the Supreme Court. It also received a clear response from the CJEU,
which concluded that the policy constituted discrimination (ECJ 24 June 2019, Case C619/18). Later, the Supreme court seats were also increased by a typical court-packing
strategy (Sadurski 2018). 18
Moreover, the law on the SC created two new chambers that the Council for the Judiciary
filled right after the alteration of its member composition. These chambers were theDisciplinary Chamber (DC) and the Extraordinary Control and Public Affairs Chamber.
The DC was supposed to deal with Supreme Court judges’ disciplinary cases andappeals of judges’ disciplinary cases from ordinary courts. The fact that the Council,
elected mainly by political actors, selected the DC was a ground for the Commission tobring action against Poland before the CJEU in 2019. The CJEU responded that DC’s
independence and impartiality was doubtful (Joined Cases C-585/18, C-624/18, C625/18). The CJEU confirmed the principle of the primacy of the EU law and claimed thatnational courts had the right and obligation not to grant jurisdiction to a court that did
not fulfill the requirements of independence and impartiality. The CJEU openly stoodby the Polish judges seeking help outside their country (Commission v Poland, C-791/19,
Judgement of 15 July 2021).
3.2.4. Ordinary courts

The ordinary courts were not exempt from PiS modifications. The retirement age of theordinary courts’ judges and the prosecutors’ retirement age was set to 65 years for maleand 60 years for female judges. 19
As of 2016, the justice minister (JM) (Act of 28 January 2016) also holds the position of
the Public Prosecutor General, and this superposition’s strength (Venice Commission2017) raised concerns. Behind the claim of further accountability of the Public
Prosecutor’s Office might easily be a goal of exerting political influence over publicprosecutors (Venice Commission 2017). The JM was also granted the power to dismiss
the lower courts’ presidents and appoint his chosen candidates. He received the power
to assign new judges, to establish divisions and branch divisions of courts, to establish
or abolish courts, to determine territorial competency areas, to authorize transfers of

16 Act of 12 May 2011 on the National Council of the Judiciary, as amended: Article 9a. 1. The Sejm selects
fifteen members of the Council from among the judges of the Supreme Court, common courts,
administrative courts and military courts for a common four-year term of office.
17 The retirement age was set to 65 years for male and 60 years for female judges, who submit a declaration
for retirement.
18 “[F]rom 82 to 120. this, according to conservative assessments, creates vacancies of about 60 percent of all
judges on the SC, to be filled of course by a ‘new’ KRS”.
19 The CJEU concluded that the provision on various retirement ages constituted discrimination and a failure
to provide sufficient remedies to ensure compliance with the right to effective judicial protection in areas
covered by EU law (EC v Poland, Case C-192/18).

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Attack or reform…

judges to other courts or reassignments to other state institutions, to request disciplinary
proceedings against a judge, and to launch an appeal against decisions of a disciplinary
court (Sadurski 2018). The JM dismissed nearly 160 presidents and vice presidents. A
powerful card was put in the hands of the prosecutor general/minister in the form of an
institution called an extraordinary appeal, which is a judicial review of final decisions,
including decisions issued before the validity of the law. The claimed goal of thisinstitution is to “ensure compliance with the rule of law” (Tatała et al. 2020). It gave theJM the power to reopen any case decided in the last 20 years (Act of 8 December 2017,
Art. 115 par. 1).
3.2.5. Muzzle law

In December 2019, the ruling majority approved an amendment to the law on Supreme
Court and law on ordinary courts, known as the “muzzle law.” 20 Based on thisamendment, disciplinary proceedings can be started against judges who resisted thechanges in the judiciary. The amendment bans criticism from a judge that might
represent “undermining the principles of the functioning of the authorities of the Republic of
Poland and its constitutional organs.” The Supreme Court’s DM has been criticized forbeing politically dependent as the politically appointed Council for the Judiciary createsit.
Since the reforms enacted in 2017 and, finally, with the adoption of the “Muzzle Law”
amendment, Poland might be considered a country that lacks an independent judiciary(Pech et al. 2021). The Venice Commission commented that the amendment was
responsible for “seriously curtailing freedom of speech and association of judges,
preventing judges from examining whether other courts within the country are‘independent and impartial’ under the European rules” (Venice Commission 2020).

4. Slovakia
4.1. Threema Scandal
In the Slovak context, we can try to understand two recent events. The first is the attacks
from private and state actors that led to the “Threema” scandal revealed in 2019. Second
is the intervention from the parliamentary majority in December 2020 as a reaction to the
judiciary’s failure during the “Threema” scandal. In this chapter, we will not focus on
the previous interventions of political leaders in judiciary proceedings. However, there
is a pattern of the justice minister replacing court presidents, and the politicized electionof the chief justice (Blisa and Kosař 2018, Kosař and Spáč 2021) has been a severe
problem. We will instead focus on the consequences of these political interventions
revealed in 2019.
In August 2019, Slovak newspapers first published news about the communications of
the infamously corrupt businessman Marian Kočner using the Threema application.
After seizing Kočner’s phone, the Slovak police and Europol decoded encrypted
messages that Kočner had sent through Threema in 2017 and 2018. Transcripts of theconversations that appeared in the press suggested far-reaching manipulation of court
A bill amending the Act on the Organization of Ordinary Courts, the Act on the Supreme Court and the
Act on the National Council of the Judiciary from 20 December 2019.
20

13

Čuroš

cases in Kočner’s favor, and communications published later detailed instances of
inappropriate communication between the judges and Kočner. In sum, nineteen judges
were accused of corruption, and several advocates are facing charges of corruption andobstruction of justice (Raábová 2018, Spectator staff and TASR 2019, Spectator staff
2019a, 2019b, 2019c, 2020a, 2020b, Valček 2020).
The judges involved in the allegations were delivering judgments on demand. Some ofthem did so for financial gain, while others acted under the threat of pressure. In
Slovakia, this event showed widespread judicial corruption.
After the revelations of 2019 and 2020, the Slovak public learned that organized crimebosses, like Kočner, have had a high level of control over a cadre of Slovak judges
through the medium of the state secretary and some court presidents (Láštic 2020). No
cautious observer thinks these are new developments or even as recent as the Kuciak
murder (Urbániková and Haniková 2021). from which evidence of judicial corruption
has emerged. On the contrary, the public sees the tip of the corruption iceberg existingunder the surface for decades.
This outrageous crisis of legitimacy within the judiciary provided a perfect opportunity
to reform or attack the judicial branch through political power. Such interventions had
been attempted for years, but after the Threema scandal, the public embraced the ideaof enacting significant changes in the judiciary. As the following sections will explain,
Slovakia is unique within our classification of attacks.

4.2. Constitutional reform in 2020
It is difficult to pinpoint when a particular attempt to amend the rules of judicial power
gets out of the joint. Is it the date of the validity of the law that successfully limits the
judiciary or extends political power over the courts? Or is it already written in theunsuccessful attempts of the third branch to resist prior intervention? Perhaps it can bedated to when the judicial body steps on the foot of the political power in a manner that
had before been considered taboo. In the current period of Slovak constitutional reform,
we will consider the initial point to be the Constitutional amendment of 2014. First, we
present some context.
The Slovak Constitution is polytextual: it consists of the Constitution in the form of acharter and several separate documents called constitutional acts. These indirectly
supplement the law existing on the constitutional level. The main body of theconstitution may be amended directly via the constitutional act. Altogether, there havebeen 19 direct amendments to the constitution and more than 20 indirect acts on theconstitutional level. All amendments and the primary document of the constitution haveequal validity and legal force. With an increasing number of these additions, there is also
an increased risk of contradictions on the constitutional level.
The Constitution of the Slovak Republic is one of the least rigid constitutions in Europe.
It requires three-fifths of the members of the parliament to vote in favor of aconstitutional act. Lawyers dedicated to constitutional law have discussed whether, withsuch a low requirement for amending the constitution, there should be a core of theconstitution that is untouchable and, therefore, unamenable (Orosz 2005, Tomoszek
2010, Breichová-Lapčáková 2013, Balog 2014, Preuss 2016).

14

Attack or reform…

Since the fall of state socialism in 1989, the Federal Czechoslovak Constitutional Court
and the Constitutional Court of the Slovak Republic (CCSR) built their case law on thepremise that the National Assembly does not consider for amendment “the materialcore” of the constitution, and the CCSR does not open the question of the compliance
between constitutional acts and the constitution itself. “Scholars have argued that certain
indirect constitutional, such as acts on shortening the term of the Parliament, andoccasionally even direct amendments do contradict the master-text Constitution, butthere has never been a suitable case to test this argument” (Drugda 2019).
The practice worked until 2014 when the National Assembly passed a constitutional act
as a direct amendment of the constitution containing the vetting procedure for new
judges and control mechanisms for sitting judges (Constitutional Act no. 161/2014 Coll).
The legislator concluded that suspicions surrounding the judiciary needed to beaddressed, and social developments in Slovakia needed to be considered on theconstitutional level (Explanatory report to the Constitutional Act 161/2014 Coll.).
Based on the explanatory report, the amendment aimed to improve the judiciary’sfunctioning, efficacy, and quality by limiting the immunity of judges and removing theneed for the consent of the CCSR 21 to prosecute judges. After this change, judges retained
immunity for decision-making - functional immunity. Furthermore, the amendment
extended the competence of the Judicial Council of the Slovak Republic (JCSR) andseparated the position of the chair of the JCSR from the chief justice. 22
The most controversial part of amendment 161/2014 was the transitional provision on
preconditions of judicial abilities, which included the termination of the office of a judge
appointed before July 1st, 2014, as a legal consequence of non-fulfillment of thepreconditions (Slovak Constitution, art. 154d, par.3.).
Based on the amendment, the preconditions for judicial abilities guarantee that judges
will perform their function correctly. The Judicial Council was supposed to decide
whether requirements were met to allow the candidate or judge to exercise the judicial
office independently. This decision was based on documents obtained from a bodyprotecting classified information (Ibid. art. 154d, par. 1.). In practice, the information
included a person’s private and family life, prior work experience, and social contacts(Ľalík 2017).
The chairwoman of the JCSR filed a complaint to the CCSR and challenged, inter alia,
the retroactive part on the judges who have already been appointed. Based on theargumentation on retroactive results towards sitting judges, the CCSR suspended theseprovisions in decision no. PL. ÚS 21/2014.

It was a precondition, the judge could have been convicted only with the consent of the Constitutional
Court.
22 As before the amendment was the chair of the Judicial Council and the president of the Supreme Court
connected.
2115Čuroš

4.2.1. The decision of the CCSR no. PL. ÚS 21/2014, known under the popular title as“material core of the constitution” 23

The CCSR stated that the constitution does not explicitly regulate the amenability ofsome of its articles, as other countries’ constitutions do. 24 Because the constitution does
not contain explicit provisions concerning unamendable articles, the material core of theconstitution is an implicit concept, the scope of which is determined by the case law of
the Constitutional Court. 25 The CCSR concluded that the independence of the judiciaryand the related independence of judges must also be considered as principles inherent
in the rule of law (Principle of the rule of law in Art.1 par. 1 of the Slovak Constitution).
Independence does not mean that judges cannot be controlled, but this control must bebalanced and proportionate (Decision of the CCSR no. PL. ÚS 21/2014, par. 116.). The
method of control introduced by the legislation in question did not meet those criteria,
for the sensitive information obtained by the National Security Authority (NSA) could
be misused to influence judges and the decision-making activities of the courts. Standard
methods of controlling the activities of judges (disciplinary, civil, and criminal liability)
exist but must be used properly (Decision of the CCSR no. PL. ÚS 21/2014, par. 138.). The
decision PL US 21/2014 is controversial because it went further than previous attempts
of constitutional courts in other European countries when deciding over the complianceof constitutional acts with the constitution itself on substantial grounds, not procedural. 26
4.2.2. Constitutional Amendment 2020

The CCSR strengthened the rigidity of the constitution with its decision that not
everything included in the constitution falls within the amending competence of thepolitical majority. The answer from the National Assembly came after the close of theseventh term. After the election of 2020, the new majority decided to play the ball thatwas now in their possession. After the “Threema scandal” in 2019 and 2020, one of the
new government’s priorities was to fight corruption, including that of the judiciary.
The Ministry of Justice prepared a proposal for significant constitutional reform focusedon the judiciary. The proposal was ambitious, and its planned constitutional amendment
was to be extensive. The president of the CCSR communicated his disapproval when“This is an essential intervention in the constitution. Please reconsider if it is necessary…
this proposal is absolutely unacceptable” (Prušová 2020). Some parts of the amendment
appeared to be genuine attempts to raise the judiciary’s efficacy and balanceaccountability with independence, while others recalled the attacks in Poland andHungary. Four parts of the amendment, to which the CCJE responded, will be compared
to interferences in Hungary and Poland (CCJE 2020).

PL. ÚS 21/2014, 30.1.2019, For detailed analysis, see Domin 2019.
For example, Art. 79 § 3 of the German Basic Law, Constitution of Norway, Article 121, Constitution of
Portugal, Article 288.
25 Two fundamental decisions of the previous years appeared in argumentation. Firstly, the judgment of the
CCSR PL. ÚS 7/2017 (the so-called Mečiar’s amnesty), and the judgment of the CCSR PL. ÚS 17/08 (Special
Court).
26 Austrian Constitutional Court in VfGH. 16.327/2001 from 11.11.2001, Ukrainian CC in decision no. 145/2010 from 30.9. 2010, Hungarian CC in decision no. 45/2012 AB from 28. 12. 2012 or Czech CC in decision
no. Pl. ÚS 27/09 z 10.9. 2009.
23
24

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Attack or reform…

4.2.3. Reform of the Judicial Council

The amendment called for a reform of the composition and powers of the JCSR,
including the professionalization of the function of the vice president of the JCSR. The
JCSR finally acquired its constitutional definition, as it was before, only implied by the
CCSR. 27 The JCSR became “the constitutional body of judicial legitimacy.” 28 Now, it isconsidered the institution where judicial politics are realized (Národná rada 2020). The
wording of the constitution was changed not to prioritize autonomy or independence(Art. 141a, par.1 of the Slovak Constitution) but legitimacy. Therefore the appointmentof members was amended, too. The quota of members appointed by the National
Assembly, the president of the country, and the government remains the same, withthree seats belonging to each (Act on Judicial Council no. 185/2002, art.3, par.2.). The
judges elect nine members from the pool of judges, and other branches of power appointnine members of non-judges. Therefore, for a successful decision in the JCSR, at least one
member from the opposite pool must be convinced to vote for the other side’s proposal(Kosař 2016). A more controversial part of the ruling may be the overruling of the CCSR
(Decision of the CCSR PL. ÚS 2/2018 from 19 September 2018) 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 (Art. 141a, par.5 of
the Slovak Constitution).
The CCJE published concerns almost immediately (CCJE 2020). Objections to theremoval of members of the JCSR were focused on the requirement of the CCJE Opinion
no.10 (CCJE 2007), which requires the independence of the members of the JCSR anddoes not distinguish between the judges and non-judges:
Members of JCSR often have to make decisions that are unpopular or will not pleasejudges or authorities who elected or appointed them. In subjecting them to anunrestricted 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 efficientjudiciary. (CCJE 2007)

Also, the CJEU prefers the enaction of formal conditions of dismissal (Repubblika, C896/19, para. 66).
The Ministry of Justice claims that JCSR is the body of legitimacy within the judiciaryand considers the appointed members of the JCSR as fulfilling the interest of thenominating body instead of safeguarding the judiciary’s autonomy. The chairman of the
JCSR Ján Mazák, a representative of the National Assembly in the JCSR, responded thatthe fundamental right to good administration, against which every decision of a body of
public power must be reasoned, includes the decision to remove an appointed

27
Firstly was JCSR defined as “sui generis” body of judicial autonomy (I. ÚS 62/06), later as “highest
authority of judicial power” (PL. ÚS 102/2011), body of guarantee of independence of the judiciary See also
US Pl 2/2012. Pl US, 2/2018.
28
This perception of the body of the legitimacy was there among the academics and members of the Council
even before, however Most Slovak judges still do not see the difference between judicial boards 136 on the
one hand and the JCSR on the other, and they think of the JCSR as an organ of self-government of the
judiciary (Kosař 2016).

17Čuroš

representative. Such a decision falls under the review of the CCSR or the Supreme
Administrative Court. That secures judicial scrutiny, after all (Súdna rada 2020).
Although the dismissal of the members has not been used yet in the last two years, 29 thecurrent silence on the conditions of dismissal from the JCSR corresponds to the idea of aplace “where judicial politics are realized” and where the legislative, executive, andjudicial power apply their goals.
4.2.4. Adjustment of Proceedings Before the Constitutional Court and Prevention ofDecisions on the Compliance of Constitutional Acts with the Constitution

Explicitly limiting the CCSR in its review of the amendments being applied to theconstitution in such a dramatic scope may appear suspicious. Here the amending actors
relied on such criticism of applying the amenability doctrine in Slovakia, as voiced inacademia and dissenting opinions of CCSR judges in the case PL. ÚS 21/2014 (Drugda2020).
As a reaction to PL US. 21/2014, the National Assembly wrote explicitly that the CCSR
does not have the competence to review the compliance of constitutional acts with eachother or a constitution (Slovak Constitution no. 460/1992, art. 125, par. 4.).
The CCJE raised concerns about this step, but the body did not elaborate on how an
infringement was created. The lengthy discussion on the duty of the CCSR to protect the“material core” that has not been mentioned in the constitution explicitly is divided
among those who support the “power of the sovereign” and those who support the
CCSR as “a guardian of the rule of law.” The response from the chairman of JCSR
supports the former, as he recalls:
It had arisen among plenty of members of academia, former judges of the Constitutional
Court and practicing lawyers immediately after issuing the finding in which the Court
for the first time had concluded that the part of the Constitution was at odds with thesame Constitution. (Súdna rada 2020)
4.2.5. Functional 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 wereaccused of arbitrary decisions. 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 (Sec. 326a of the Slovak Criminal Code)(IACL-AIDC 2020).
The preparatory report claims that society has undergone significant developments toreach this stage when judicial immunity is not necessary anymore (Národná rada 2020).
The lawmaker perceived functional immunity as a refutation of decision-making
accountability. After the amendment, judges are still protected against criminal
prosecution if they act in a bona fide manner. However, they can face charges for“bending the law” - the arbitrary application of the law. 30 Here lies what is possibly theAs there was no election in between.
The explanatory report mentions that the new crime in Criminal Act is based on the German criminal law,art. 339.
29
30

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Attack or reform…

most controversial issue of the amendment. It is possible to admit some sympathies to
the government, as the “Threema” scandal brought on more profound levels of distrustin judicial decision-making. Nevertheless, it is perilous to open the option to prosecutejudges based on their decision-making.
The CCJE wrote in its reaction to the Slovak amendment that it fears that the anticorruption campaign might lead to excuses “to justify limitations of judicial
independence, strongly opposes this approach, which threatens to influence the judicial
system(s) by limiting judicial independence” (CCJE 2020). The CCJE argues that the
proposal of the Ministry of Justice infringes on the principles of judicial independence 31
and impartiality. Functional immunity is a safeguard of independence, offering security
that a judge will not be prosecuted for decisions made in good faith (Venice Commission2010). The CCJE sees the potential risk of a “vexatious pursuit of criminal proceedings
against a judge who is disliked” (CCJE 2020).
Ján Mazák argued in his response that ‘bending the law’ follows the German paradigm.
He sees sufficient guarantees if the interpretation “of the wording (on the crime“bending the law”) is in the hand of an independent judiciary” (Súdna rada 2020).
After one year, this instrument of accountability remains to be controversial. The
proponents of judicial autonomy and civil society organizations highlight thepossibilities of misuse of this instrument (TASR 2022). This institute’s most visible
examples of usage are those used against judges in cases that have dealt with politicallyvisible figures and therefore criticized as misused for political pressure.
4.2.6. Creating the Supreme Administrative Court of the Slovak Republic (SACSR)

Based on the explanatory report, the SACSR ought to “contribute to the protection of
constitutional principles, rights, and values, particularly in the context of feedback topublic authorities” (Národná rada 2020). However, the establishment of the new court
was not received well by the Slovak judges.
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 thedifficult 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 forthe 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
some judges to refuse to apply. On the one hand, this resistance allowed the JCSR selectexperts 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.

“Judicial independence shall be guaranteed in respect of judicial activities and in particular in respect ofrecruitment, nomination until the age of retirement, promotions, irremovability, training, judicial immunity,
discipline, remuneration and financing of the judiciary (CCJE 2010, par. 4).

31

19Čuroš

4.2.7. New Court Map

Part of the judicial reform was to reduce first-instance courts from 54 to 30 and appellate
courts from 8 to 3. The primary object of the reform was to improve the effectiveness ofthe courts. The JM 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 (Čuroš and Graver 2020). Additional goals are to improve accessibility, the speedof proceedings, the quality of decisions, transparency, and efficacy.
The CCJE expressed concern about the transfer of judges without their consent (CCJE2010). After the constitutional amendment 422/2020 passed, the judge’s consent will not
be required if a transfer “is necessary to ensure the proper administration of justice, thedetails being provided by law” (Art. 148, par. 1 of the Slovak Constitution). The CCJE
pointed to the need for assurance of security of tenure (CCJE 2010) and irremovability
as crucial elements of the independence judges enjoy. Mazák answered that change ofthe system of the courts is in the public interest, as the historically high number of courts
created atomization of the judicial map created in 1997 as an effort of then-prime
minister Vladimir Mečiar to follow a court-packing strategy. He assured that “if any
transfer of a judge to a lower court occurs, then it will be compensated by preserving all
the benefits for a judge concerned” (Súdna rada 2020).
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” (Prušová 2022). 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 andBratislava – 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 theseoutcomes seem genuine in attaining the goal of centralization of the court agenda inorder to provide higher specialization of judges and a higher standard of delivering
justice.
The court map was also essential for financial support for the judicial reform from theEU’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 (Koreň 2022). Critics of the reform had argued that the lack ofcommunication 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
JM following the plans in the Matovič government program statement 32 and judges, local

32

Program Statement of the Government of the Slovak Republic for 2020-2024 of 19 April 2020.

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Attack or reform…

interests, and judicial associations. After the resignation of JM Mária Kolíková, whofought for the implementation of the reform, and after the departure of the liberals fromthe Heger’s government, it is, however, difficult to predict the survival of the reform.
The new JM Viliam Karas, former chairman of the Slovak Bar Association, has not shared
his views on reform. However, the Bar Association strongly critiqued the proposedchanges during the implementation process.
Some elements of the reform that were received without controversy concerned the termof constitutional court judges, 33 an introduction of an age census for the termination of
the function of a judge of the general court and judges of the constitutional court, andinspections of property relations of judges and judicial competence. 34

5. Transmission belts and golden eggs
5.1. Hungary
Court-packing strategy is a particularly compelling phenomenon that is often a thin line
between legitimate judicial reforms, those that aim at reconstructing the bench, andillegitimate interferences (Kosař and Šipulová 2020b). Court-packing, although always asuspicious step, does not qualify as an attack on the judiciary. Raising or reducing thenumber of judges does not have a direct influence on how they are going to decideparticular cases. In other words, raising the number of judges at the court and then fillingthese spots with, for instance, conservative judges does not infringe on their impartiality.
Nevertheless, almost every court-packing raises a red flag and foreshadows a shift in thedecision-making paradigm (Kosař and Šipulová 2020b). However, it does serve as atransmission belt allowing the easter egg to function fully. Another transmission belt
could also be considered the position of NOJ president. Although NOJ provides
possibilities for arbitrary decisions about judicial careers, 35 it does not have thecompetence to limit impartiality.
In Hungary, the golden egg seems to be hidden in the competencies of the president of
Kúria and court presidents of lower courts. The president of Kúria explicitly assigns
judges to hear administrative cases in Kúria. The strong position of court presidents,

See art. 134 and 154g, par. 9-11 of the Slovak Constitution. After the constitutional court crisis starting in
February 2019, in October 2019 were candidates finally elected in the National Assembly and appointed by
the president. One of the criticized facts was that the majority of the former judges finished their terms at
the same time what created pressure on National Assembly and need for 18 candidates from who 9 newjudges of the CCSR would be appointed. The amendment established the continuous change at the CCSR
for the next generation of the judges of CCSR (see Ovádek 2018).
34 Art. 141a, par. 6/h, of the Slovak Constitution. In reaction to the mentioned decision of the CCSR 21/2014,
the amendment enables the Judicial Council to exercise active supervision over the fulfilment of theconditions of judicial competence by its own autonomous conduct and verification without substantial
interference by another public authority, as before the decision 21/2019 this role was supposed to do
National Security Authority.
35 For example, in lack in transparency in announcement of vacant positions. Vacated judicial posts are notnecessarily published, as the NOJ president may decide to transfer the post to another court, or to fill thevacancy without publishing a call for applications. Also the NOJ president has extensively used theexceptions allowed by the law to fill a vacancy without a call for applications’. See Venice Commission 2021,
para. 59.
33

21Čuroš

which has also been recently criticized, 36 empowers them not only over young judges,
who seek their tenure through the recommendation of the court president to NOJ but
also by disciplinary powers over judges at their court. In lower courts, judges are
assigned to hear administrative cases by the president of NOJ upon the proposal of thecourt president (Section 30(1) and (3) of Act CLXII of 2011 and Sections 76(5)(e) and 77(1)of Act CLXI of 2011). This policy lacks official criteria for both assignment andtermination. Therefore it allows the court presidents to remove a judge from the casewithout the judge’s consent and creates pressure on the judges’ decisions. Moreover, thecase allocation scheme is established by the president of Kúria. 37
Such policies undermine the judiciary’s internal independence and allow direct pressure
from court presidents and indirect pressure from political branches of power if courtpresidents are chosen to serve as transmission belts.

5.2. Poland
Although the court-packing strategy at the Constitutional Tribunal was an apparent
interference (Xero Flor v Poland, 2021), it would not be counted as an attack on the
judiciary here. It appeared to be a handy transmission tool for the PiS administration
since the Constitutional Tribunal has doubted the compatibility of EU law (Decision P
7/20 from 14 July 2021 and Decision K 3/21 from 7 October 2021) and the ECHR (Decision
K 6/21 from 24 November 2021 and Decision K 7/21 from 10 March 2022). The
Constitutional Tribunal was therefore acting as a shield against the criticism of thelegislative steps taken towards the judiciary (Kelemen and Pech 2018).
Despite the CJEU judgment (Commission v Poland, C-192/18), neither retirement age on
judges does constitute an attack on the judiciary in this article, as this step only worked
as a transmission belt. Nor changes in the creation process of the NCJ would beconsidered an attack on the judiciary. The changes have created legitimate doubts about
its independence; however, the NCJ does not portray the kernel of an attack, but anothershield, as the NCJ is in charge of recreating the judiciary’s personnel. The NCJ is not
required to be an “independent and impartial tribunal.” 38 In its current position, it works
as a transmission belt for political influence in the judiciary. 39 This politicization of theNCJ, strongly criticized by the ECtHR (Dolińska-Ficek, 2021), and CJEU (AK v Krajowa
Rada Sądownictwa (C-585/18, C-624/18, C-625/18), AB v Krajowa Rada Sądownictwa (C824/18)), happened to be another transmission belt for the usage of the kernel of theattack. The reason is simple. While the NCJ’s independence is doubted, it does notdirectly impact judges’ decision-making.
The golden egg of an attack in Poland is the enactment of the “Muzzle law” andestablishment of the DC of the Supreme Court, which can decide on requests for thelifting of judicial immunity, as well as on matters of employment, social security, andretirement of Supreme Court judges, including sanctioning Polish judges for direct
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 4.
37 Which the Venice Commission criticized; see Venice Commission 2021, para. 66, point b).
38 According to art. 6 ECHR.
39 It is visible in calling Prosecutor General for action against judges due to their decision-making - Statementof the NCJ of 14 April 2022.
36

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Attack or reform…

application EU law protecting judicial independence, or for putting references forpreliminary rulings on such questions to the CJEU. The DC became a very controversial
institution since the members, mainly new judges, who were not at the Supreme Court
before, appointed by the politicized NCJ, enjoyed quite a lot of autonomy. This golden
egg allowed direct pressure on the deciding judge (Commission v Poland, C-791/19).
This golden egg, however, was promised to be changed under Recovery and Resilience
Plan, according to which Poland must secure that all cases against judges, including
disciplinary cases and decisions on the lifting of judicial immunity, will be adjudicatedby a independent and impartial court established by law and that judges will not faceretaliation due to motion for preliminary ruling the CJEU, or for the content of thedecisions (COM/2022/622 final).
The role of the JM can also be considered a golden egg. The position of JM, who is also
the public prosecutor, is entitled to play an active role in prosecutions, with adisciplinary role in respect of court presidents (Minister of Justice and Equality v Celmer(C-216/18)). In the case of the Retirement of ordinary judges (Commission v Poland, C192/18, par. 122), the CJEU was not objecting to lowering the retirement age per se, but
it was much more concerned with the JM’s competence to authorize particular judges toresume their seats, despite the retirement age.

5.3. Slovak interference
Unlike in Hungary and Poland, in the Slovak reform, the kernel of an attack seems to belacking. With even lower public trust in the judiciary than in Poland and Hungary,
Slovakia was after the “Threema scandal” plainly at risk of state actors who might playon the judiciary’s lack of accountability and history of corruption to justify its reforms
along the lines pursued by PiS in Poland. However, the intervention undertaken in
Slovakia does not resemble the Polish and Hungarian way of the intervention of theparliamentary majority towards the judiciary. Although the Constitutional Court’s
limitation on constitutional acts was stricter than in Hungary, where the Constitutional
Court can review the adopting process of constitutional acts, unlike in Poland andHungary, no suspicious court-packing happened in Slovakia. Luckily, CCSR resisted theambitions of the former three-time PM Robert Fico to become the president of the CCSR.
To avoid such political attacks in the future, the Ministry of Justice proposed changes tothe election and appointment process for the CCSR judges. Unlike in Hungary and
Poland, the Slovak proposal alters the process to be more transparent and predictable,with articulated requirements for candidates and procedures that should avoid blocking
candidates either in parliament or by the president, as these two institutions play theleading roles in creating the CCSR. Moreover, the rule was adopted to avoid a situation
when most CCSR judges finish their term simultaneously, leaving the court vulnerable
to political court-packing. This rule will most likely be applied after 2030 for the firsttime. In this sense, the proposal mutes rather than enhances the power of thegovernment to control CCSR candidates.

23Čuroš

While the Supreme Administrative Court might remind a court-packing strategy, 40 theprocess of establishment of the new court was transparent. The power to select judges
for the newly established Supreme Administrative Court was given to the JCSR as a
power awarded for this only occasion. Although rules on the appointment and removalof JCSR members changed, the judiciary still selects half of the members for the JCSR.
Although the retirement age was set, in contrast to Hungary and Poland, it was raised
from 65 to 67 without prolonging the tenure. In the outcome, it brought legal certainty
and fairness in the departures of judges and reduced the ambiguous prolongations ofindividual judges.
In contrast to Poland, where the Judicial Council became politicized, or Hungary, where
the control over judges was put in the hands of the president of the NJO, Slovakia has
not experienced such a political intervention in JCSR. While political powerstrengthened its influence in JCSR through the possibility to remove the appointed
representative in the JCSR by the appointing body at any time, the representatives of thejudges and political representatives still have an equal number of seats in the Council.
Furthermore, the controversial and unconstitutional vetting procedures of judges wereleft entirely in the jurisdiction of the JCSR, without any intervention of the executive
power, which accommodates the CCSR’s objection.
A new court map proposal from the government in Slovakia appears not to be targetedat governmental control over judicial decisions. Instead, the Slovak proposals re-draw
the geographic seats of appellate courts, ostensibly aimed at trimming nepotism andcorruption centered on the prior appellate court locations. In Košice, 41 for example, it has
been accurately said that the chief qualification for a judge-applicant is his or her familyname (Šípoš and Spáč 2013). Moving the appellate court seat to Prešov may have thepositive effect of diluting the power of the Košice judicial-family elites (Čuroš andGraver 2020). 42
The most controversial might be the step of the parliamentary majority toward thelimitation of judicial immunity. A new criminal offense called “bending of law” wasintroduced. In case of the arbitrary application of the law, a judge could be criminallyliable. In contrast with Poland, where judges may be disciplinarily prosecuted by the
senates established by the politicized Judicial Council, in Slovakia, such judges would
be tried by an independent and impartial court in a criminal trial. Moreover, the accusedjudge has a right to file a motion to the JCSR, which could stop criminal prosecution. If
tried disciplinarily, in Slovakia, judges would fall under the disciplinary power of the
SACSR, whose judges have been selected by the JCSR, where representatives of judges
possess half of the seats or by the president of the SACSR.
Finally, there were no attempts in Slovakia for any “muzzle law” or restrictions of thepreliminary question to CJEU on the independence of the courts. There are no
As the new court was established and only 10 out of 21 judges of the court were judges of the previous
Administrative collegium at the SCSR The rest of the members entered the SACSR through public hearing
in the JCSR. Although the creation of a new court does not fall within categorization of court-packing
strategies proposed by Kosař and Šipulová (2020a, p. 85).
41 Second largest town, and the seat of the regional court.
42 The appellate courts did not move in the enacted form of the reform. Both Košice and Prešov are still seatsof the appellate courts.
40

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Attack or reform…

guarantees that the current reform will not turn to attacks in the following months or
years. However, recently, the intervention does not remind the interventions in the
judiciary in Hungary and Poland, where the systemic steps from the limitation of theconstitutional courts, court-packing strategies at all levels of courts, and politicization of
the Judicial Council happened.

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May 2022. Available from: https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX%3A52022DC0622 [Access 31 January 2023].

Case law
AB v Krajowa Rada Sądownictwa (C-824/18).
Agrokompleks v Ukraine, judgment of 6 October 2011, no. 23465/03, § 137.
AK v Krajowa Rada Sądownictwa (C-585/18, C-624/18 & C-625/18).
Associação Sindical dos Juízes Portugueses (C-64/16).
Baka v Hungary, judgment of 23 June 2016, no.20261/12.
Brudnicka v Poland, judgment of 3 March 2005, no 54723/00.
Commission v Hungary (judicial retirement age), (C-286/12).

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Attack or reform…

Commission v Poland - Independence of the Supreme Court (C-619/18).
Commission v Poland – Independence of ordinary courts (C-192/18).
Commission v Poland, C-791/19. Judgment of the Court of Justice of 15 July 2021 [online].
Available from:https://curia.europa.eu/juris/document/document.jsf?text=&docid=225141&pageI
ndex=0&doclang=SK&mode=lst&dir=&occ=first&part=1&cid=6106239 [Access 24
May 2021].
Criminal proceedings against IS. CJEU Case C-564/19 / Judgment (C-564/19).
ECLI:EU:C:2021:949.
Dolińska-Ficek and Ozimek v Poland, 49868/19 and 57511/19.
Gerovska Popčevska v the Former Yugoslav Republic of Macedonia, judgment of 7 January
2016, no. 48783/07.
Guðmundur Andri Astráðsson v Iceland, judgment of 1 December 2020, no. 26374/18.
Ibrahim Gurkan v Turkey, judgment of 3 July 2021 no, 10987/10.
Kinský v the Czech Republic, judgment of 9 February 2012, no. 42856/06.
Langborger v Sweden, judgment of 22 June 1989 no. 11179/84.
Le Compte, Van Leuven and De Meyere v Belgium, judgment of 23 June 1981, nos. 6878/75
and 7238/75.
Mcgonnell v the United Kingdom, judgment of 8 February 2000, no. 28488/95.
Miasto Łowicz v Wojewoda Łódzki (C-558/18 and C-563/18).
Minister of Justice and Equality (C-216/18).
Repubblika v Il-Prim Ministru (C-896/19).
Romanian Judges Forum (C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19.
Sovtransavto Holding v Ukraine, judgment of 25 July 2002, no. 48553/99.
Sramek v Austria, judgment of 22 October 1984, no. 8790/79.
Xero Flor v Poland, judgment of 7 May 2021, no. 4907/18.
Zielinski and Pradal and Gonzalez and others v France, judgment of 28 October 1999 nos.
24846/94, 34165/96 to 34173/96.

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