Strasbourg, 12 February 2001
CCJE (2001) 14
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Slovakia
I. THE INDEPENDENCE OF JUDGES
1. The independence of judges is guaranted by the Constitution in the article 141 paragraph 1 and 2 and in the article 144 and also by the Act No. 385/2000 Coll., on Judges and Lay Judges (§ 2 and § 4) and also by the other acts, in particular by the Code of Criminal Procedure and by the Civil Procedure Code in which the constitutional principle of the independence of judges is regulated in more details..
2. It is on the one hand the election of judge after the completion of four years term as a judge without time restriction and on the other hand it is the impossibility of the removal of the judge otherwise then from the reasons defined in the Constitution (article 147 par. 1,2 of the Constitution) and further institutional safeguard of the independence of judges is the impossibility to transfer the judge to another court without his consent.
3. The irremovability of judges is recognized. The cases when a judge can be removed are enumerated in the Constitution (article 147 par. 1,2).
4. The decisions of the courts can be reviewed and set aside only within the appeal procedures provided for by the law or on the base of the extraordinary remedies only by the courts within the procedures prescribed by the law.
5. The assigned case could be withdrawn from a judge
i) if he was from the reasons defined in the law (because of prejudice) excluded from the decision making on the case and only if
ii) the superior court by the senate (as to judges of the Supreme Court by another senate of this Court) decided about the exclamation of the judge.
In case, if it was decided that a judge was excluded, the President of the court appoints an another judge instead of the excluded judge.
II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS
1. In order to become a judge there have to be meet the next conditions:
As a judge may be elected a citizen of the Slovak Republic who
a) on the day of election has reached a minimum of 30 years,
b) has the university legal education,
c) has full capability for legal actions and is capable for the performance of the post of judge as regards health,
d) is blameless and his moral characteristics give a guarantee that he will perform the post of judge correctly,
e) has permanent residence in the Slovak Republic,
f) has passed a specialized judicial examination,
g) has succesfully passed a selection procedure.
2. A candidate has to pass both a specialized judicial examination and a selection procedure and as a condition is also to have the applicable qualification (he has graduated from a Master`s programme at the law faculty of a university in the Slovak Republic, or has a recognized or accredited document on obtaining legal education by graduating from a programme on an equal level at a foreing university).
3. It is required the university legal education (see point II., 2),
4. A previous professional experience is required only in the case of the selection of the candidates under the provision of § 5 par. 2 of the Act No. 385/2000 Coll., on Judges and Lay Judges, if somebody already practiced as a lawyer, a prosecutor, a notary or who is provably a specialist or other significant personality in the legal branch and has been active in the law profession for a minimum of 20 years.
5. As a judge may be elected only a citizen who is at least 30 years old.
6. Judges are elected by the National Council of the Slovak Republic on a proposal from the Government of the Slovak Republic for four years and after the completion of this electorial period the National Council of the Slovak Republic on a proposal from the Government elects them as judges without time restriction.
7. No, they are not appointed, they are elected.
8. No, only by the election by the Parliament (the National Council).
9. The Ministry of Justice of the Slovak Republic.
10. Yes, Judicial Councils and the Council of Judges of the Slovak Republic. Judicial Councils are advisory bodies of the presidents of the courts in exercising state administration of courts. They are created at the regional courts, the Higher Military Court and the Supreme Court.
Judicial Councils are composed at most of 15 judges. Two thirds of the members of the judicial council are elected by secret ballot at the general meeting of judges of the court and one third consists of the president of the court and the members appointed by him. The Council of Judges of the Slovak Republic has been constituted to coordinate the activities of all judicial councils and also to participate in the excercise of state administration of courts in the extent and in the ways defined by the Act on Judges and Lay Judges (No. 385/2000 Coll.).
The Council of Judges of the Slovak Republic consists of Presidents and Vice-Presidents of Judicial Councils of regional courts, the Higher Military Court and the Supreme Court.
As to selection and promotion procedure councils of judges have the following tasks:
- they take the attitude towards the nomination of candidates for the election of judges;
- they take the attitude to the proposals to the assignment of judges to a court of higher degree;
- they cooperate by evaluation of judges in that way that the competent Judicial Council either approves or changes or completes the proposal of the evaluation of a judge.
Judicial Councils also make the motions to the appointment of members of the selection commitees which perform a selection procedure for occupation of a vacant post of a judge. The opinion of Judicial Council is asways necessary if it concerns the assignment of judge to the Supreme Court of the Slovak Republic or the assignment of judge to another court or appointment to higher judicial function (president of the senate or the president of the college).
11. The promotion of judges (occupation of a vacant post of the president of the senate at the court of higher degree and the promotion to a court of higher degree) has to be realized on the basis of selection procedure (§ 28 of the Act No. 385/2000 Coll.).
To higher judicial function (president of the senate) a judge is appointed by the president of the appropriate court (§ 15 par. 1 Act No. 385/2000 Coll.).
A judge is transfered to court of higher degree by the Minister of Justice (§ 14 par. 1 above mentioned Act).
The transfer of a judge to the Supreme Court of the Slovak Republic can only be made with the consent of the Council of Judges of the Slovak Republic (§ 14 par. 2 above mentioned Act).
12. By now there has existed only methodical instruction of the Ministry of Justice from 1996 (No. 3413/1996) for evaluation of judges elected for four years term. It contains the next criteria:
- working efficiency,
- level of decision making activities,
- hold-out in the procedure,
- disciplinary proceedings,
- complaints about course of action of a judge,
- out-working activities of a judge.
Under the new Act on Judges (Act No. 385/2000 Coll) general criteria of selection procedure are covered by § 28. Under the § 26 above mentioned Act the Council of Judges of the Slovak Republic upon agreement with the Minister of Justice shall adopt rules of a selection procedure, function promotion of judges to a court of higher degree and assignment to higher judicial functions as well as details about the contents and the methods of evaluation of judges and principles of judicial ethics. It is presumed that the rules will be adopt during the February of 2001.
13. Under the article 147 par. 1 of the Constitution of the Slovak Republic and § 18 par. 1 of the Act on Judges and Lay Judges (No. 385/2000 Coll.) a judge shall be removed from office by the National Council of the Slovak Republic:
a) upon a conviction of a malicious offense;
b) upon a disciplinary measure imposed for professional misconduct.
The National Council of the Slovak Republic may remove a judge
a) who has been unable to perform judicial duties for reasons of bad health for not less than one year;
b) who has attained sixty-five years of age.
Prior to such removal the National Council of the Slovak Republic shall require the opinion of the appropriate disciplinary tribunal.
14. To the National Council of the Slovak Republic has been laid a proposal on the table of an amendment of the Constitution in the part relating to the Judicial Power in the sense that it sould be abolished the four-year tderm of judges and only after this term the possibility to elect them again for an indefinite term. It is proposed to appoint judges by the President of the Slovak Republic without time restriction from the appointment,
that is without initial four-year term. We would consider it right and as a strenghtening of the independence of judges in our country if this initial four-year`s function period of judges was abolished and judges were appointed from the beginning without time restriction.
The Presidents and Vice-Presidents of district and regional courts aought to be appointed by the Council of Judges opposite the current state when they are appointed by the Minister of Justice without time restriction. We consider also as problematic the transfer of judges to the Supreme Court by the Minister of Justice. It would be more suitable if the Council of Judges decided about it. The reasons for the removal of Presidents and Vice-Presidents of courts ought to be also specified in the Constitution.
III. THE FUNDING OF THE COURTS
1. The court`s activities in the Slovak Republic are funded from the state budget and some programs within judiciary which are organised by the Ministry of Justice, in particular educational, are funded also from out-budget sources (PHARE, EC).
2. The rules of setting of the budget for the judicial system and the courts are yearly processed by the Exchequer and approved by the Government of the Slovak Republic. The Ministry of Justice lays a proposal of the budget costs for all judicial system and negotiates them with the Exchequer. The proposal of budget means for judicial system approves the Government of the Slovak Republic and consequently the National Council of the Slovak Republic as a part of the state budget.
3. Judges have a possibility to give their opinion about financing or preparing the budget through the judicial councils and the Council of Judges of the Slovak Republic. Under the § 58a of the Act on Courts and Judges No. 335/1991 Coll. the Council of Judges considers budget estimate of courts for the national budget estimates.
4. Judges have adequate administrative staff. Their equipment of office automation, in particular computer technique is not sufficient by now. It corresponds only with restricted financial budget means but the conditions are getting better yearly in dependence on given economic resources. The best situation is at the Supreme Court where everyone of judges has a personal computer.
5. Judges are expecting a better equipment with necessary legal literature. It also meets with financial problems. The new Act on Judges and Lay Juges (No. 385/2000 Coll.) anticipates that, inter alia, also for this aim it will be provided for judges from the January 1-st, 2002 monthly lump compensation of the costs connected with the excercise of their function at the rate of 1/12 of 50 % of the basic judge`s salary.
6. At present some simple acts which under the Code of Criminal Procedure and Civil Procedure Code are charged to the president of the senate (single judge) can be administered by an apprentice judge or a court clerk. In the future it is supposed to create the function of higher court officers which could decide about such legal interests and rights which are not in an immediate relationship to the subject-matter, e.g. to take on an expert, a translator, to decide about expert`s or legal representative`s reward. These acts could free judges who are overburden with amount of cases.
7. From the January 1-st, 2001 the Supreme Court of the Slovak Republic has got a separate chapter in the Act on the National-Budget, separately from other courts.