THE DECISION of the Bratislava region court this past week to again forbid the prosecution of former spy boss Ivan Lexa was not only legally flawed - it was cowardly and unjust.
The court based its decision on a ruling by the Constitutional Court in December 1999, which said an amnesty issued in March 1998 by then-acting President Vladimír Mečiar concerning the 1995 kidnapping of the former president's son prevented the people involved in the kidnapping from being charged. By that time, a former Slovak Intelligence Service (SIS) officer, Jaroslav Svěchota, had already confessed to assisting in the kidnapping under Lexa's direction and the 'spiritual guidance' of Mečiar himself.
However, the same Constitutional Court under Ján Drgonec had ruled earlier in 1999 that amnesties, once issued, can't be changed or cancelled. The problem is that Mečiar altered his original amnesty in July 1998, and incoming Prime Minister Mikuláš Dzurinda cancelled them both outright in December 1998. That leaves us with one valid amnesty, whose text says it covers everything done "in connection with the claimed kidnapping of Michal Kováč Junior abroad".
Attorney General Milan Hanzel, along with many in the legal community who want to see justice done in this case, argue that the wording of the amnesty does not cover the kidnapping itself, and that prosecution can go ahead. If it did cover the actual act of kidnapping, they argue, why would Mečiar have amended the text three months later to extend the amnesty to the kidnapping itself?
The Bratislava court also cited a ruling by the Constitutional Court that the fact no investigator on the case before March 1998 had initiated criminal proceedings meant they could not now be started after the amnesty. Daniel Lipšic, former head of office at the Justice Ministry, said this was one of the "several legal problems" with the court's ruling, adding the Constitutional Court had had no right to comment on the criminal procedures code, which did not support its interpretation anyway.
So much for the most obvious legal flaws - it was the arrant cowardice of the decision that has incensed many, as the court took the easier of two paths and relied on what Lipšic has repeatedly called the "absurd" 2000 ruling by the Constitutional Court. The worthy Tibor Šafárik, by the way, left the court to become shadow Justice Minister for the opposition Slovak National Party, and later defended former Interior Minister Gustáv Krajči against charges of having thwarted the infamous May 1997 referendum on Nato membership and direct presidential elections.
Worst of all, the Bratislava court decision closed one of the few remaining avenues to seeing the people who kidnapped Kováč punished. The decision may be appealed to the Supreme Court, or the Mečiar amnesty could be scrapped by parliament this month. But don't bet on either yielding a just result.
Anarchist-philosopher William Godwin (1756-1836) defined justice as "the sum of all moral duty", implying that most of us carry around with us a sense of what justice is even if we can't articulate it clearly in legal terms.
It's as plain as a punch on the nose, as the Slovaks say, that the state had at least a role in the kidnapping, while state functionaries (Mečiar, Lexa, Šafárik) have done their best to see this role remains secret. The obligation of the courts, as nominally independent from the executive and legislative branches, is to be the agent through which Slovaks do their collective moral duty. In the Kováč Jr. kidnapping case, however, courts have consistently sought reasons not to proceed against Lexa and his SIS cohorts, and have not managed to bring even one of the sabotage or abuse of power cases not affected by the amnesty to trial.
Some politicians are now saying it would be better to drop the matter, consign it to the dustbin of history as too painful and traumatic for society to endure. As H. L. Mencken wrote, "injustice is relatively easy to bear; it is justice that hurts."
Not in this case however. What the courts have decided so far about Lexa has been unjust, which is precisely why it continues to rankle. And if anything is difficult to bear, it is that 12 years after communism the judicial system doesn't see dispensing justice as a moral duty but as a selective act.
