FOR THE FIFTH time in six years, the Christian Democrats (KDH) failed to convince parliament to support a motion to overturn two amnesties issued by Vladimír Mečiar in 1998 for two of the most notorious political crimes committed under his government: the 1995 kidnapping to Austria of Michal Kováč Jr., son of the president, and the thwarting of a 1997 referendum on NATO membership.
In the kidnapping case, both Slovak investigators and a Vienna court suspected the Slovak secret service under the leadership of Mečiar crony Ivan Lexa of having committed the crime. However, due to the amnesties issued to those involved by Mečiar using presidential powers he temporarily assumed, the crime was never brought to trial.
At the same time, legal and political experts have warned for over a decade that if those who committed the kidnapping go unpunished, the faith of Slovak citizens in justice and in their country's legal system will be shaken. That faith is all the more fragile given that from the time of the kidnapping, reports have repeatedly reached the public that top Slovak officials were behind it.
Moral abyss
Since Vladimír Mečiar was prime minister at the time of the kidnapping, and thus was Lexa's direct boss, legal and political experts have argued that Mečiar in effect was issuing an amnesty also to himself, apart from the criminals that performed the deed.
KDH MP František Mikloško, speaking during the October 18 debate, summarized the moral objections to the amnesties when he asked Mečiar: "You gave amnesties to terrorists, criminals and potential murderers. What are you afraid of, why don't you want to cancel them?"
Even Mečiar's current partners in the ruling coalition see his amnesties as a moral problem. Smer party MP Boris Zala, speaking on the Joj TV channel, said that "these amnesties are immoral. Issuing an amnesty for that kind of crime or suspected crime is simply amoral. The person who issued those amnesties acted amorally".
Zala's party boss, Prime Minister Robert Fico, issued similar criticism of Mečiar's acts, but added a proviso that has kept parliament from overturning the amnesties to date: "The amnesties were the moral abyss, but canceling them would be the legal abyss," he said, explaining that they were legal acts that could not be overturned.
But some legal experts do not buy this theory. Attorney Ernest Valko, the former chief justice of the Czechoslovak Constitutional Court, told The Slovak Spectator that the key to the amnesty issue was whether they were just, not whether they were legal: "If the current prime minister says that issuing the amnesties was an act from the moral abyss, then he admits that issuing them was unjust."
Radbuch's formula
In explaining how the amnesties might be cancelled in keeping with the law, Valko referred to German attorney Gustav Radbuch, who after the Second World War had wrestled with how to punish Nazi criminals. The latter claimed innocence, saying they had only been carrying out orders, and that they had committed their crimes against humanity in accordance with Nazi laws valid at the time.
According to Valko, human history is full of examples of totalitarian and authoritarian regimes enacting laws that are in conflict with the Charter of Basic Rights and Freedoms, for example. Gustav Radbuch called these laws "legal injustice", and said that "extra-legal justice" was always the superior force.
"Gustav Radbuch worked from the premise that the law comprises three values - that it is to the general advantage, that it supports legal certainty, and that it achieves justice. All three of these values must be in balance. If there is an imbalance, Radbuch said that we ran the risk of legal injustice," Valko said.
"In such instances, we have to seek guidance in that which is above the law - Radbuch's extra-legal justice."
Valko said that Radbuch's formula had been used to condemn many Nazi criminals, and that to this day it was followed not only by the German courts, but also by the International Court for Human Rights in Strasbourg.
In March 2001, for example, in the case of former East German Communist Party leader Egon Krenz, the German courts used the principle to sentence him to six years in jail for crimes committed on East Germany's borders. The verdict was upheld by the Strasbourg court, even though Krenz argued that East German law had allowed soldiers to fire on people crossing the border.
"As far as I am aware, however, no one in Slovakia has been convicted even of crimes committed under the communist regime using this principle," Valko said.
Legal abyss?
Asked what implications the Radbuch formula had for Mečiar's amnesties, Valko said: "Overturning the amnesties would conflict with the principle of legal certainty, that is true. But in saying that issuing them was the moral abyss, Prime Minister Fico acknowledges that they were unjust. And if they are unjust, then we have to ask whether we don't want to use Radbuch's extra-legal justice principle to remove this injustice."
Valko also said that legal questions remained regarding the second amnesty that Mečiar issued to adjust the first amnesty, after he discovered the first did not completely protect the Kováč Jr. kidnappers: "If we concede that amnesties may not be altered, which is what opponents of the abolition of the Mečiar amnesties claim, then logically Mečiar's second amnesty concerning the actual kidnapping should be invalid.
"In any case, I would never dare say that canceling the amnesties would be the legal abyss, especially given the fact that they could be cancelled by law passed with a two-thirds majority."
Valko also underlined that it had never been established whether Mečiar was not issuing an amnesty to himself. "For that reason it is worth asking is this case didn't involve an abuse of power, and whether this abuse doesn't outweigh the amnesties themselves.
"This is all about the relationship between the letter of the law and justice. If we agree that justice is above the law, then we shouldn't have a problem canceling Mečiar's amnesties."
