The Slovak Legal System
Roman Majtan


 

 

INTRODUCTION

Slovakia is a relatively new country, which gained its independence less than ten years ago. Prior to the independence, the country was under a totalitarian regime and was ruled by an exogenous ruling class for almost thousand years. The legal system in Slovakia is new and is still evolving. Slovakia is a parliamentary democracy and its legal system is modeled primarily on the German legal system but also on systems of other western democracies. This report will provide a short historical summary of Slovakia, giving a context for a discussion of Slovak legal system. The core of the paper will focus on the functions of executive, legislative and judicial branches, the main legal and political decision making bodies. The Parliament makes laws, the government and the president implement them and judges and the judicial branch enforces them. Because judges play a significant role in the legislative process, a description of training judges and attorneys will follow.

 POLITICAL HISTORY OF INDEPENDENT SLOVAKIA


On January 1, 1993, after centuries of struggle for independence, Slovakia became a sovereign state.   Prior to the early 20th century, Slovaks were only an ethnic group within the Austrian-Hungarian empire.    In 1918, after the break down of the Austrian-Hungarian empire, Slovaks along with the Czechs formed Czechoslovakia.    In 1948, Czechoslovakia adopted communist regime.   The communist regime in Czechoslovakia oppressed pluralistic views and the regime also strongly opposed demands calling for self-administration of Slovakia.

In Slovakia, the process of national movement started after the breakdown of oppressive communist regime in 1989.   The unjust federal legislation greatly influenced and encouraged the national movement.    For example, the newly elected democratic federal parliament passed a law, article 556/1990, which classified what laws fell under the federal and states’ constitutional jurisdictions.  While states possessed greater accountability, the key predominantly economic jurisdictions remained in the hands of the federal government.  An additional law, which furthered the growing conflict between the Slovaks and Czechs, was the 1968 federal amendment on “prohibition of majoritarian rule” (zakaz majorizacie).   The law granted an effective veto power to even a small minority of Czech or Slovak deputies.  Consequently, the lovak political representation began to use its power to veto almost all the laws in the federal parliament.   The constitutional deadlocks justified the attempts of the Slovak elite to call for more autonomy.

Because of the irreconcilable differences between the two governments, the options for the new governmental system were either to adopt confederation or to give complete sovereignty to each of the two republics.   The election in 1992 determined that Czechoslovakia would break up and two new republics would be formed.

For further reading on political and legal history of Slovakia please see:

Cibulka, Lubor, and Lubomir Fogas, Ustava Slovenskej republiky, Slovenske pedagogicke nakladatelsotvo, Bratislava 1993 pp. 11.

A.E. Dick Howard, Constitution making in Eastern Europe, The Woodrow Wilson Center Press, Washington, 1994 pp. 64.

CONSTITUTION

Shortly before Czechoslovakia dissolved, a group of Constitutional experts drafted the new Constitution.  The Constitution is meant to be the supreme law of the land and it provides for a foundation of a democratic system based on executive, legislative and judicial branches.  The Slovak Constitution was ratified on September 1, 1992.    It became fully effective on January 1, 1993 when Slovakia became independent.   The Constitution was changed once since its adoption when, in September 1998, it allowed for direct election of the president.    It was amended on February 2001 to allow Slovakia to apply for NATO and EU membership.   The Constitution of Slovak Republic was drafted and later enacted on September 1, 1992.

The preamble of the Constitution opens with the words “We, the Slovak nation” and ending with “we, the citizens of the Slovak Republic.” These words became rather controversial among the deputies and representatives of Hungarian ethnic minority living in Slovakia because the ethnic Hungarians felt that their ethnic origin was not adequately expressed in the new Constitution.   However, as one of the drafters of the Constitution pointed out, “the state is not based only on the national principle, we sought only a formulation of how to express that the nation has a right to its own state… citizens of the Slovak Republic…all have equal rights.” The Constitution is thus meant to provide rights and protections for all Slovaks regardless of their ethnic origin.  The Constitution contains 156 articles, and the text contemplates a democratic, pluralist, “socially and ecologically oriented market economy” based on a tripartite division of power (executive, legislative and judicial branches).

For more information on Slovak Constitution please see:
http://www.cia.gov/cia/publications/factbook/index.html

http://www.slovensko.com/docs/const/

http://www.europeaninternet.com/centraleurope/country/slovakia/constit/slcons01.php3

http://www.government.gov.sk/VLADA/USTAVA/en%5Fvlada%5Fustava.shtml

Stein, Erci, Czecho/Slovakia: Ethnic Conflcit, Constitutional Fissure, Negotiated Breakup; The University of Michigan Press, 2000.

EXECUTIVE BRANCH

Chief of state/president:

The executive branch can be divided between the president and the government. The first president who was elected by direct vote is president Schuster. The president represents the country externally and internally. He is not bound by any directives. He is elected by direct vote for 5 years. The candidate for the post of the president must be recommended either by at least 15 deputies from the National Council or by a petition signed by at least 15 thousand citizens who are eligible to vote.

 For a candidate to be elected, he/she must obtain more than half of the votes in the first round of elections (assuming there are numerous candidates). If the candidate does not obtain more than half of the votes, the two candidates who obtained most votes in the first round will have a runoff. The candidate who receives more votes in the runoff wins.

The President’s role is mainly ceremonial, but he does posses some legislative powers. For example, the president signs all laws,

and he may return constitutional and other laws to the Parliament with his observations up to 15  days after their approbation. 

He may also initiate proceedings in the Constitutional Court. Finally the President may  dissolve the Parliament if the parliament

rejects the government's program three times consecutively in a six-month period.  The President is a chief of the armed forces and he may declare war, according to a decision of the Parliament, and proclaim a state of emergency. The President has power to declare referenda based on petitions submitted to him by individuals or by Parliament. The President may be prosecuted for treason only. The actual prosecution is conducted by the Parliament. Prior to 1998, a president was elected by majority in the Parliament. At that time, the president could have been removed from the office by a qualified three-fifths majority vote in the Parliament.  Needless to say, after the constitution was changed in 1998, and the president is now elected directly by people, he/she cannot be removed by parliament unless he is involved in treason.

For more info on the president please visit:

http://www1.oecd.org/puma/sigmaweb/profiles/slovakia/svktoc.htm
http://www.president.sk/kancelaria/down.html
http://www.photius.com/wfb2000/countries/slovakia/slovakia_government.html

Government

The second part of the executive branch is the government.  The government of the Slovak Republic has certainly more power than the president.  The government comprises of the Prime Minister, three Vice-Prime ministers, and other ministers.  The government and its ministers are appointed by the President on the recommendation of the Prime Minister. The prime minister is usually the leader of the majority party or the leader of a majority coalition and is appointed by the president.  A member of the government cannot be elected a deputy in the National Council.  When a deputy becomes a member of the government, a substitute performs the functions of the deputy in the National Council.

The government implements legislation enacted by the National Council and coordinates the business of ministries and other central authorities.   In addition to implementing the council’s legislation, the government decides on bills, government decrees, an implementation of the government's program, international agreements, budgetary drafts, and high official appointments. The Prime Minister directs government meetings where decisions are made by a majority vote of all members. As discussed earlier, the government has authority to issue resolutions, governmental decrees, and regulations.  These are made in the following way:  resolutions require consent by a majority of all members of the government, governmental decrees require the signature of the Prime Minister.  Regulations are issued by the ministries and must be signed by the appropriate minister. All decrees and regulations are published in 'Collection of Laws' journal.

To find out more about the government, please visit:

http://www.government.gov.sk/

http://www.slovensko.com/web/gov.htm

http://www.gksoft.com/govt/en/sk.html

http://www.slovakia.org/links.htm

http://www.slovakemb.com/gov_link.shtml

http://corc.oclc.org/WebZ/XPathfinderQuery?sessionid=0:term=2293:xid=LCP

http://www1.oecd.org/puma/sigmaweb/profiles/slovakia/svktoc.htm
Stein, Eric, Czecho/Slovakia: Ethnic Conflict, Constitutional Fissure, Negotiated Breakup; The University of Michigan Press, 2000

LEGISLATIVE BRANCH


National Council/Parliament: Neither the government nor the president have authority to make laws.  Under the Constitution of

the Slovak
Republic, all legislative powers are vested in the Parliament.  The electoral system is based on proportional

representation (80/1990 Slovak National Council Election Act). The system of proportional representation
may seem more

democratic because seats are available to even minor political parties that passed the 5% minimum requirement in the National

Council elections.  On the other hand, Slovak coalitions have struggled with the multi party system because even the small

parties that were in the coalition threatened to pull out if their demands were not satisfied. Seven political parties are represented

in the present Slovak Parliament.   The current ruling coalition comprises of: Slovak Democratic Coalition, Christian Democratic

Coalition, Slovak
Left-Wing Democracy, and Hungarian Coalition.  The new elections will take place in September of this year

and it is expected that the current coalition will not remain in power.   Parliament has the sole legislative jurisdiction.  It votes on

all laws, it reviews changes or amendments to existing laws. The parliament must also give accord before ratification of

international agreements as set forth by the Constitution. The parliament usually needs a qualified majority in voting on Bills and

other measures.   A three-fifths majority of all members is required to pass laws of constitutional character.  The Parliament

exercises great authority over the president but particularly over the government.  The government with its policies and activities

is responsible to Parliament; Deputies have the right to question
members of government in the Parliament.  The Parliament may

take a vote of no-confidence in the government. The government or a minister is recalled by the President based on the vote of

no-confidence of the parliament. If the Prime Minister is recalled, the whole government resigns  he parliament deputies can

initiate legislative proposals. Parliament has an authority to investigate facts and cases that are in the interest of the general public.

To do so, the parliament usually sets up an investigative
committee from among its members, which sits in camera. After the

investigation is over, the committee
dissolves. In addition to having investigative committees, the parliament has political clubs

(with at least five deputies) whose chairpersons examine government policies and recommend parliamentary business.
To read

about the parliament and parliamentary procedures:

http://www.nrsr.sk/

http://slovakia.eunet.sk/slovakia/polit.asp

http://www1.oecd.org/puma/sigmaweb/profiles/slovakia/svktoc.htm

JUDICIAL BRANCH:

The Parliament has the greatest authority when it comes to legislative decision-making. However, the Parliament and deputies’ conduct is overseen by the judicial branch, in particular, the Constitutional court. The judicial system provides checks and balances among political and legislative institutions but also provides protections for ordinary citizens. The judicial power is exercised by courts with general and special jurisdiction. The courts of special jurisdiction have authority to review matters specified by statutes. For example, the Constitutional Court has special jurisdiction to review the legality of legislative acts and decisions by administrative bodies that violate the fundamental rights and freedoms of individuals if no other court can decide about the protection of their rights and freedoms. The courts of general jurisdiction decide civil and criminal matters, handle disputes under the Commercial Code and review legality of cases decided by regional or local administrative and other bodies with delegated powers.

Constitutional Court:

The Constitutional Court of the Slovak 
Republic is an independent judicial body 
which interprets and safeguards the 
constitutionality of laws, government 
decrees and other legal rules.  The judges 
are appointed by the president and they are
nominated by the Parliament.   The 
Constitutional Court has 20 judges who serve seven-year terms. The Constitutional Court jurisdiction covers administrative disputes dealing with decisions of central and
local governments and the court has a final say in interpreting the Constitution and constitutional laws.  The Constitutional Court also reviews decisions ordering the dissolution or suspension of a political party or political movement.  (The Constitutional Court has not yet dissolved any political party in its history)
State courts:
The constitutional court deals primarily with administrative disputes, e.g. disputes among deputies, the government or the president.  The state courts in Slovakia deal with disputes and grievances among citizens and among military. The system of state courts in the Slovak Republic consists of: the Supreme Court of the Slovak Republic; regional courts; district courts; higher military court; and military district courts.
State courts have either one judge or a bench/senate composed of five professional judges. The number of judges depends on whether the law specifies the one judge or the bench proceeding.  The Slovak courts do not have the jury system per se but instead they have lay judges. Lay judges sit on the bench in courts of the first instance. Judges are independent and the court hearings are public. The person concerned has the right to use his mother tongue.  The right to a mother tongue is particularly important to ethnic Hungarians who often do not speak, or in some cases, refuse to speak Slovak language. Any person charged with a criminal offense is presumed innocent until proven guilty. Accused persons have the right to counsel and may request free legal assistance as provided by law.

In the hierarchy of laws, a rule of a lower legal force must be consistent with the rule of a higher legal force. An existing legal rule can be derogated only by a rule with the same or higher legal force. The laws passed by the parliament, governmental decrees, and regulations issued by ministries may be reviewed only by the Constitutional Court. An individual may enforce his or her rights under a fixed procedure before an independent and impartial court other than the Constitutional Court.

For more comments on courts and judicial branch please visit:

http://www.cia.gov/cia/publications/factbook/geos/lo.html

http://www.concourt.sk/
http://www.hri.ca/fortherecord2001/vol5/slovakiatr.htm

http://www1.oecd.org/puma/sigmaweb/profiles/slovakia/svktoc.htm

LEGAL TRAINING

To be a president or a deputy in the Parliament, one does not need legal education or any other particular type of education.

Needless to say, legal training may be useful not only for judges or attorneys but for other government officials.  Legal education

in Slovakia is rather broad, touching on various social science subjects such as philosophy, economics or history.   The broad

focus of legal education makes a person well rounded and well prepared for almost any public/government position.

The legal training in Slovakia, as in most of Europe, is based on the traditions of written Roman law. Roman law has been the basis of the legal education during communism and still plays a significant role in the schools curriculum. With the exception of teaching Roman law, the schools and the legal education had been radically changed after the break down of communism. The curriculum now conforms to that of other western European countries. As a part of the educational transformation, law schools in Slovakia are beginning to adopt some elements of common law systems.  For example, the concept of judicial precedent is now recognized de facto (although it is still not accepted officially). There has been also a general movement to incorporate some fundamental elements of positive law such as equity and principles of honest commercial activity or merchant habits in legal training as well as in practice.

Unlike in the US, where the legal education can only be obtained after completing bachelors degree, in Slovakia, students may apply to law schools at age 18.  Applicants have to take an entrance exam and also have to have good grades from high school.  The system of having entrance exams to law schools differs from some other European countries such as Germany or France where applicants do not have to take any exams.  Law schools along with medical schools are considered to be most selective among different departments.  The high degree of selectiveness has a dark side as well--allegedly, some professors who are involved in the admission process abuse their power by taking large amounts of bribes.

Law schools offer three types of degrees: bachelors, masters, and doctorate.   The bachelor degree requires completion of 3 years.  At the end, a student will have to take a state exam and will have to submit a dissertation. Those students who have good GPA may apply to continue in the masters program after the three years.

Students may choose to pursue masters degree instead of bachelors degree.   That is, at age 18, students may apply to either of the programs.   The masters program is more respected and also more selective.  Students have to take an exam focused primarily on history.  The entrance exam is challenging and a large amount of applicants are denied the admission. The period of training in the masters program is 5 years.  At the end, students take a final state exam and submit a dissertation.

The doctorate program is the highest form of legal education that one may obtain.  It prepares candidates for scholarly and academic work.  In order to enroll in the program, one has to obtain a master degree and has to have at least one-year work experience.  An attorney does not need the doctor degree to practice law.

Information about legal education are best described on the web site of the most well known law school “Comenious University” in Bratislava: http://www.flaw.uniba.sk/studpor.htm

Description of entrance exams and sample questions:
http://www.flaw.uniba.sk/

Becoming a judge:

A law school graduate who obtains the master degree may apply to become a judge.   In the initial stage, the regional courts hold a written competition/konkurz. The exam contains 12 questions from various legal subjects.  The content of the exam is determined by the ministry of justice. The exam is given by a committee of judges. If an applicant receives a required amount of points for passing, he/she will take an oral exam.  The points from both the written and oral exams are added and candidates are selected based on the exam scores. 

The successful candidates then participate in a three year training program.   The training is not on a full time basis.  Instead, the trainees meet three times a year.  The judicial applicants are trained in subjects such as judicial rhetoric, constitutional, criminal and administrative law, psychology, sociology and legal ethics. At the end of the training period, the applicants will have to take another set of oral and written exams.

The candidates who pass both exams go through an election process.  That is, the parliament based on recommendation from the government elects applicants to judicial position also known as “young judges”.  The young judges are elected for four-year term.  They must be at least 25 years old.

After the four-year term, the young judges may be elected for life.  To be elected for life, a judge must be at least 29 years old.  The process of the election is the same as in the case of  “young judges”. Parliament, based on recommendation from the government, elects the applicants to judicial position for life.

Further reading on training judges:
  http://www.justice.gov.sk  

Also available is an in depth analysis and research on corruption in Slovak judicial system and among prosecutors: 

http://www.transparency.sk/studia_pkns_2-10.htm

http://www.transparency.sk/studia_pkns_2-11.htm