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Katarína Šmigová: Interpretation of fundamental rights in Europe – The material core of the Constitution

14 June 2021

The Faculty of Law of the Pan-European University, Slovakia, within the Central European Professors´ Network coordinated by the Ferenc Mádl Institute of Comparative Law in Hungary, has chosen the topic of the material core of the Slovak Republic’s Constitution for both its dissemination events within the project on Interpretation of the Human Rights. The first was provided by a judge of the Slovak Constitutional Court, Dr Rastislav Kaššák, PhD, and the second by a member of the teaching staff of the Faculty of Law of the Pan-European University, Assistant Professor Boris Balog, PhD.

The lecture was provided online, because before the dissemination event there had been another special online meeting dedicated to PhD students who expressed their preference for the online meeting in the afternoon. Information about the lecture, followed by a discussion and the opportunity to publish students’ articles based on the intersection of their dissertation papers with the material core of the Slovak Republic, was subsequently provided not only to PhD students at the Pan-European University’s Faculty of law, but also to the students of all law faculties in Slovak and Czech universities (particularly per email communication).

However, only around ten students and members of the teaching staff attended the lecture on the topic ‘Material Core of the Constitution in the Application Practice’, which was held on 14 June 2021.

After some technical issues and opening remarks by Dean Katarína Šmigová, Assistant Professor Boris Balog was given the floor. He began by stating that the choice of the topic was influenced by the fact that the construction of the material core of the Constitution, which is interesting in itself and has a large, broad theoretical scope of research, has gone through a fascinating journey in the Slovak Republic and in its constitutional development since its establishment in 1993. It was discussed what historical events we have survived since then, how these events were signed under the formation of the constitutional system of the Slovak Republic and how they were signed under the way that these events were constitutionally resolved. Today, we can look back at some of the events of the 1990s from a distance of more than one generation.

Assistant Professor Boris Balog began his presentation—using his words—from the end, given that he began by discussing the last milestone in the development of the concept of the material core of the Constitution that was realised on 1 January 2021 when part of the provisions of the Amendment to the Constitution No. 422/2020 entered into force. Additionally, inter alia, with this amendment, Article 125 para. 4. also includes a sentence stating that the Constitutional Court of the Slovak Republic does not decide upon the compliance of a constitutional act with the Constitution. This sentence is a result of the

development of the relationship between the Slovak Republic’s Constitutional Court and the National Council of the Slovak Republic’s ultimate legislative body. The Slovak Republic’s Constitutional Court now faces a situation where it needs to decide on constitutional compliance about a sentence that states that it should not decide on constitutional compliance.

The lecturer expressed his perception that this was an expression of the National Council’s return to worthless formalism in its understanding of the Constitution. This would indicate that the National Council had returned to the 1990s, when from the beginning it had viewed the Constitution as a document that it could treat as it pleased if a constitutional majority of at least 90 members of the National Council was achieved. In principle, if that happens, the National Council can amend the constitution in any way, regardless of the content. Contrarily, in 2017, the National Council moved towards an understanding of the Constitution based on values, but unfortunately, this move was defeated again in 2020 by the National Council and it returned to a formal understanding of the Constitution.

The whole process started because of Mečiar´s amnesties in 1998 for a thwarted referendum and the kidnapping of the president´s son, Mr. Kováč. These were events that traumatised the society and influenced constitutional development by attempting to determine whether they could be revoked in a constitutional way. The principle of separation of powers, and the status of the National Council and its authority to adopt any norm it considers necessary, have been the subject of political and academic discussions.

It was the principle of separation of powers that had to be interpreted in 2006 and then again in 2014. Necessity of this interpretation was triggered by giving authorisation to an executive body, the National Security Office, to decide within a process of nomination of a judge, i. e. judicial body; that was considered unconstitutional by the Constitutional Court. Nevertheless, as a reaction, the National Council adopted a constitutional act to overcome the content’s limitations. Similarly, another constitutional act was enacted in 2014 to use the form as a mantle to cover the content that had been declared unconstitutional because of the principle of separation of powers.

In 2017, the Constitution of the Slovak Republic was amended, and the National Council was expressly authorised to adopt a resolution under which it could revoke amnesties granted by the deputy president subject to a constitutional analysis by the Constitutional Court. It was in this decision that the material core, though only in an implicit form, was developed by the Constitutional Court and identified in the principles of a democratic state and the rule of law, such as principles of freedom, equality, human dignity, human rights and fundamental freedoms, sovereignty, legal certainty, separation of powers, democratic legitimacy and so on.

Nevertheless, in another decision in 2019, the Constitutional Court held one act to be unconstitutional again, requiring the National Council to enact an amendment stating that the Constitutional Court could not decide upon an act’s compliance with the Constitution. However, according to Assistant Professor Boris Balog, the amendment solely concerns the text of the Constitution and not its implicit core, which includes principles of a democratic state and the rule of law. Therefore, everybody has been curious about what judgement the Constitutional Court would adopt.

The lecture was followed by a discussion on the amendment of the Constitution that allowed for the extradition of its own citizens, the methodology for identifying democratic state principles, and the rule of law. Moreover, international legal obligations were presented, as well as another alternative for the Constitutional Court to consider when addressing the issue of constitutionality. Finally, other constitutional experiences were presented (e.g. Italy, Germany), as well as various institutional culture and paralegal factors that might influence the development of a constitutional system.

The lecture and the following discussion were the introductory events of the planned meetings of PhD students on a variety of topics that are challenging to society and its legal systems in different countries.

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