In Slovakia in February 2018 the journalist Ján Kuciak and his fiancée Martina Kušnírová were murdered. Their killing has brought about a fundamental shift of political power in the country, leading to the prosecution of high-profile defendants, including the man accused of ordering the murder. Three years later we can state that even though the man who ordered the hit has not been punished, there is a chance that this crime will eventually result in an improvement in the administration of justice in the country.
Murders happen in normal countries, too. However, in normal countries the state employs professionals who are dedicated to, and reasonably successful in, prosecuting their perpetrators. That is why in normal countries this kind of crime does not attract the attention of many, apart from those who personally knew the victim or who seek out news of violent crimes as their highlight in the evening news.
Nevertheless, sometimes even in a normal country there can be a murder that has a profound impact on society, dividing the country into a before and an after: the assassination of a president, a charismatic preacher, brazen cartoonists, an influential opposition politician... Such an impactful crime took place in the Slovak Republic in February 2018, when the investigative journalist Ján Kuciak and his fiancée, the archaeologist Martina Kušnírová, were executed in cold blood.
Ján died a violent death because he had proactively exposed and warned of criminal activities by a number of individuals who enjoyed impunity. That is why his death has become a palpable symbol of a gross dereliction of duty on the part of the state. However, what determines a country’s nature is not so much whether this kind of tragedy can take place there as what happens afterwards. For the killing of a journalist is political, in the sense that it affects everyone because of the work journalists do; it is the test of normalcy that a country passes or not, depending on the degree of public outrage that it provokes and the intensity of the social changes that it brings about.
From this perspective Slovakia has clearly passed the test. Kuciak’s murder triggered the most widespread protests since the fall of the communist regime,[1] lasting four weeks and resulting in a major cabinet reshuffle, including the replacement of the prime minister.[2] The political matador Robert Fico was replaced by his likeable party comrade Peter Pellegrini. And even though it seemed for a while as if Fico would govern the country without holding an executive post, as was the case of Kaczyński in Poland,[3] Fico’s influence eventually waned. A year later, the surprising winner of the presidential election was Zuzana Čaputová, a progressive candidate without previous political experience who appealed to the voters by running a factual and conflict-averse campaign that set her apart from the political style of the old political elites. The spring of the following year 2020 saw a political earthquake of even greater proportions, with the populist opposition leader Igor Matovič winning the parliamentary election with his promise of purging public life of corruption and cronyism.[4]
The tragic death of Ján and Martina had a huge impact not only on politics but also the judiciary. The police began to investigate prominent perpetrators, several closely watched trials were launched, the new government has proposed stricter checks on judges’ fitness for office, and the new parliament is preparing to elect a new prosecutor general. Even if it was not possible to punish the person who ordered the killing, there is a chance that this crime will eventually bring about an improvement in the administration of justice.
The impact of politics on the criminal justice system
As a result of the division of power in the Slovak Republic, guilt as well as punishment is determined by independent courts, that is to say, bodies that are apolitical. It might thus seem that if individuals with criminal reputations, whom any decent person would give a wide berth, are roaming the streets, the problem has no political solution, since political bodies – a parliament that is accountable to the people and a government that is accountable to parliament – cannot interfere with the courts’ judicial powers.
However, a more detailed examination quickly reveals that the issue is not entirely a matter of the impotence of political bodies. State prosecutors can launch criminal proceedings solely on the basis of the results of police investigations, which suggests that the impunity of certain shady individuals may result from lack of action on the part of agencies that are accountable to the government. Simply put, if the police refuse to investigate, the courts have no cases to try.
It is precisely this kind of environment that can inspire a journalist to devote their talents to investigative journalism. Ján Kuciak had the extraordinary ability to discover in publicly available sources atypical financial transactions smacking of fishy or criminal activity.[5] His work was, in effect, a substitute for the official investigative agencies of the state. It is therefore hardly surprising that he became a thorn in the flesh of those on whom his suspicions fell.
This would suggest that the changes of government in 2018 and 2020, brought about by the mass protests following Ján’s killing, were bound to have at least one logical consequence: a more proactive approach on the part of the law enforcement agencies. Following Fico’s resignation, several leading figures in the police force were replaced and before long criminal charges were brought in a number of cases that the police failed to tackle before Kuciak‘s murder.
The charges
The first charge of this kind was brought four months after the killing. It concerned the forging of promissory notes worth 69 million euros, allegedly committed by Marián Kočner, a controversial businessman with suspected links to organized crime and a well-known member of Bratislava’s high society with a big media profile.[6] It is symptomatic that the police had not previously regarded this transaction as fraudulent.[7] Moreover, Kočner won a civil suit he brought to receive the payment on a promissory note worth over 8 million euros.[8] An outside observer can only assume that the authorities no longer wished to accommodate Kočner once people began to realise that Kuciak may have died because of his energetic pursuit of his suspicious financial operations.[9] And indeed a year after Ján’s death, in addition to a number of economic crimes, Kočner was also charged with his murder.
The evidence gathered in all these criminal cases gradually lifted the veil on the complex web of Kočner’s contacts. People were astounded to learn how many public officials had betrayed their office.[10] The problem was by no means limited to executive bodies as might initially have appeared. Apart from politicians, police investigators, prosecutors, as well as several judges were also entangled in Kočner’s web. The list of individuals apprehended in the course of Operation Storm, which aimed to root out corruption in Bratislava’s courts, offers a graphic picture of the web’s extent. The thirteen judges detained in the operation include a former deputy minister of justice, a vice-chair of the Supreme Court, and presiding judges of lower courts and their deputies.[11]
While from a systemic perspective the investigations triggered by Kuciak’s murder exposed a number of potentially serious crimes, the greatest damage caused by these suspicions – however insensitive this may sound – is not to do with the fraudulently acquired millions, or even the violent death of two young people, but the failure of the system of justice. For it was not only specific individuals who failed, but also, within their local remit, the institutions themselves that were supposed to prevent such failings.
Paradoxically though, long-term reform cannot be accomplished without the active participation of these same institutions. While the perception of the courts‘ credibility is very low in Slovakia, the huge workload they handle suggests that citizens continue to rely on them to resolve their interpersonal conflicts.[12] After all, Kočner himself has been brought to justice by the Slovak courts: rather than being stoned to death by an enraged mob in the street, or disposed of by the hand of a self-proclaimed avenger, he was given a fair trial.
The trial
Looking at the murder from the human, rather than systemic, perspective, one feels the need for a catharsis, a longing for moral satisfaction that stems not from political victory or comprehensive reform, only from a just verdict. However, the Slovak trial of the century in the lower court delivered a shocking verdict: Kočner was found not guilty.[13]
On hearing the verdict, many quite understandably wondered if the defendant had pulled a string or two. However, this pessimistic scenario is highly improbable as Kočner had been in detention since 2018 and the court hearings relating to the promissory notes and the murder received the most comprehensive media coverage in the history of Slovakia. Anyone who, in the current social climate after Operation Storm, entertains conspiracy theories whereby the judges had the audacity to behave corruptly in Ján Kuciak’s murder trial, of all cases, should turn to writing crime fiction with elements of fantasy.
Instead of going into the details of the case file running to thousands of pages, in discussing the verdict it should suffice to say that the court based its verdict on the time-proven principle of criminal justice: in dubio pro reo – that guilt must be proven beyond reasonable doubt.[14] To sum up: although there is strong circumstantial evidence that Kočner did indeed order the killing, this was insufficient to convince the court of first instance to indict the accused. A large part of the public was disappointed by the verdict, but some in the legal profession were sympathetic to the decision.[15]
This curious situation leads to a more general observation that could go under the working title of ‘the Kočner paradox’: the less the public trusts the courts, the more scrupulously they have to ensure that they are also seen to respect the law, even if such decision-making delivers verdicts that the public may disagree with. In a situation of deep distrust of the judiciary, rigorous loyalty to the judicial profession can further deepen this distrust. If paradoxes of this kind exist within the judicial system, it will probably not be possible to restore the trust that has been lost without sensitive interventions from the outside, particularly on the part of the government, parliament, the media, and civil society.
Society's changing mood
The killing of Ján Kuciak and Martina Kušnírová has demonstrated the impact that the change in society’s mood can have on the administration of justice. The mass protests following the couple’s murder in 2018 brought about changes in government and subsequently also in the leadership of the police. This has untied the hands of police investigators, injecting their work with renewed vigour. Charges were brought, court proceedings were launched. State prosecutors bringing charges in high-profile cases have gained the attention and sympathy of the media.[16] Following the 2020 parliamentary elections, change has even reached the Judicial Council of the Slovak Republic, the highest legal authority that determines the judges’fitness for office, resulting in the replacement of one-third of its members,[17] including its leadership.[18]
At the time of writing, in the autumn of 2020, the parliament is tightening the legal provisions for checking judges’ fitness for office by introducing a vetting procedure,[19] and for the criminalization of their arbitrary decisions.[20] And in the near future, parliament will choose a new prosecutor general through an open selection procedure similar to that of the election of constitutional judges.[21]
Changes have also affected the journalistic profession. If the individual who ordered the killing believed that the deed would intimidate journalists, he couldn’t have been more wrong. If anything, since Ján’s death Slovakia’s media have only grown more confident. Kočner’s trials have received unprecedented coverage: opinion pieces and brief news reports provided not just an account of the proceedings but also independent evaluation of the evidence presented; witnesses who did not testify could read on the internet what other witnesses said in court; reports from trial hearings were regularly followed by live interviews with prosecutors and defence counsel freely discussing the developments in their cases. This active involvement of the media is one of the reasons why present-day law students have a great advantage over their predecessors: being able to watch real court dramas unfold live on their TV or mobile screens enables them to test the lessons learned in law school. The only question is whether this might jeopardize the fairness of the judicial process.
In a normal country
A characteristic feature of Slovakia is its position between the West and the East not only in geographic but also in psychological terms. “Mečiarism”, as the period under the autocratic prime minister Vladimír Mečiar from the break-up of Czechoslovakia in 1993 until 1998 is known, is a good example. During his rule the secret service kidnapped the son of the then President Michal Kováč, a political rival of Mečiar’s. After the murder of a key witness in that case, Madeleine Albright, the US Secretary of State at the time, called Slovakia the black hole of Europe.[22]
After Mečiar was defeated in a general election with an 84% turnout, the pro-reform Prime Minister Mikuláš Dzurinda held office for six years. During this time, he succeeded in preparing this “black hole” to join NATO and the EU. Still on the back of Dzurinda’s reforms, his successor Robert Fico who took office in 2006, ushered his country into the eurozone three years later.
While the right-of-centre Dzurinda and the left-wing Fico viewed the world from diametrically opposed political ideological perspectives, they had one thing in common: an attitude of indifference to corruption. This was corroborated by a secret police file, codenamed Gorilla, involving the wiretapping of a well-known Slovak oligarch as he negotiated bribes with members of Dzurinda’s cabinet and also as he talked to Fico about funding for the latter’s party.[23] The Gorilla case further deepened the public’s general disgust with politics, strengthening calls for a new “apolitical politics”.
Beneath the surface of this political ambivalence there seems to lurk a much more profound disorientation in values. For example, a recent opinion poll has shown that only 49% of Slovaks are keen on liberal democracy, while as many as 38% are in favour of authoritarian rule. As many as half of Slovaks believe their identity is threatened by the Western lifestyle, and as many as 60% believe the conspiracy theory which claims that the world is ruled by secret cabals, intent on establishing totalitarian rule over the world.[24]
The country’s brief modern history, as well as the sociological data, cautions against excessive optimism. It may well happen that “society's changed mood”, which today raises hopes of a reform of the justice system, may tomorrow bring about curbs on the constitutional rights of various minorities or the gradual concentration of power in the hands of an autocrat. Examples of the introduction of authoritarian rule can be found not too far from home.
Nevertheless, the mere fact that the violent death of Ján Kuciak and Martina Kušnírová, a journalist and his fiancée, triggered the kind of social changes we are seeing today, raises the hope that Slovakia will not lose its fight for liberal democracy anytime soon.
Translated by Julia Sherwood.