Odmowa mianowania sędziów konstytucyjnych (casus Słowacji)

The procedure for appointing judges of the Constitutional Court in Slovakia does not differ significantly from the solutions adopted in other European countries. The Slovak model has similarities with the solutions adopted in 1991 in relation to the judges of the Constitutional Court of the Czech and Slovak Federal Republic. The procedure for appointing constitutional judges included — at the initial stage — the entities involved in legal practice and study of law, whereas the creative power was de lege ferenda based on the cooperation between the National Council and the President of the Slovak Republic. Despite the involvement of various stakeholders, the appointment is de facto a political process, since the fi nal decisions are taken by political authorities. An important issue, which concerns the nomination of judges, is the scope of discretionary powers of the head of state in the assessment of candidates for appointment to judicial office. Given that the President appoints judges from among candidates nominated at the request of the National Council, the we cannot accept the approach limiting the role of the President of the Republic to that of the notary public devoid of the possibility of effecting membership of the constitutional court. Disputable is also the view expressed in the judgment of 17 March 2015 imposing on the President an absolute obligation to appoint a judge from among of the two candidates. The appointment of judges is the responsibility of President of the Republic and is associated with its obligation to ensure continuous work of the constitutional court. Continuity may be threatened not only if the President refuses to appoint in an arbitrary manner, but also when he appoints to the membership of the court persons whose activities may interfere with its proper functioning. It is also hard to accept the idea that the head of state would have the full impact on the process of nominating judges. The President cannot freely decide who will be the judge, nor can he/she spontaneously assess whether the candidate meets the requirement of having appropriate work experience. Possessing a knowledge of law should be the subject of public debate, a kind of competition between the candidates, and not a tool by which the President may reject the candidates nominated to him.