The infamous Slovak businessman Marian Kočner, currently serving a 19-year sentence for forging TV Markíza promissory notes, could see his time behind bars significantly reduced. Now six and a half years into his sentence, Kočner is not due for release until 2037. However, a forthcoming decision from the European Court of Justice (ECJ) could drastically alter his fate, reports the daily Sme.
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Slovakia’s revised Penal Code, effective from August 2024, lowers the maximum penalty for offences such as forgery from 20 years to a range of 5 to 12 years. Kočner’s legal team argues that this new legislation should be applied retroactively to his case, potentially slashing his prison term. While transitional provisions initially excluded such reinterpretations, his lawyers, Michal Mandzák and Martin Pohovej, are relying on a reinterpretation of EU law that prioritises leniency in criminal sentencing.
The ECJ is currently deliberating on the principle of lex mitior—the application of the more favourable law—which Kočner’s defence has framed as central to their argument. A hearing in Luxembourg this September, initiated by Kočner’s lawyers, marked a step forward, but any decision is expected to involve further legal battles.
Unrelated case
Interestingly, Kočner’s defence team brought the issue to Luxembourg via an unrelated case. This concerns a fine imposed on a trucking company for failing to install a compliant device to record driver rest periods—a requirement that was later abolished. Disputing the fine, the company pursued legal action, which ultimately reached the Slovak Supreme Administrative Court. In August 2023, the court suspended proceedings and referred prejudicial questions to the ECJ, seeking clarification on the interpretation of the EU Charter of Fundamental Rights and the lex mitior principle.
While the questions primarily focus on the administrative context of the trucking case, any ruling by the ECJ could set a precedent with broader implications, including in criminal law.
When asked by Sme daily whether the ruling could affect criminal cases, Mandzák was unequivocal. “In my view, absolutely—100 percent,” the lawyer said. He expects the ECJ’s decision next year.
Critics, including prosecutor Ján Šanta, who secured Kočner’s conviction, warn that retroactive application could destabilise Slovakia’s judicial system. “I am not aware of any ruling by the Court of Justice or any other judicial body that has ever applied lex mitior in a way that would affect a case with a final decision,” Šanta said. He cautioned that this approach could open the floodgates for convicted individuals seeking reduced sentences following amendments to the Penal Code.
Kočner and his co-defendant, Pavol Rusko, were convicted in January 2021. However, in April 2024, they filed an appeal, which will now be reviewed by the Supreme Court. If the Supreme Court upholds the appeal, it could annul the entire ruling or specific parts of it and return the case to a lower court. Any subsequent decision would need to address the Supreme Court’s objections.
Help from Luxembourg
The Luxembourg court has already provided a boost to Kočner in the promissory notes case through its October judgement on the use of mobile phone data in criminal proceedings. Responding to a query from Austria, the court ruled that unlocking and extracting data from seized phones must be preceded by a judicial or independent review, except in urgent situations where delays could lead to data loss.
Kočner’s defence had raised this issue during the promissory notes trial. Messages from the encrypted app Threema, retrieved from a phone handed over by Kočner’s associate and former intelligence agent Peter Tóth, were admitted as evidence. Kočner’s lawyer, Marek Para, has confirmed that the Luxembourg ruling will be cited in their appeal to challenge the admissibility of this evidence.
Meanwhile, Kočner faces additional charges, including accusations of ordering the murders of journalist Ján Kuciak and his fiancée Martina Kušnírová. Even with the possibility of a reduced sentence, his legal troubles are far from over.
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Publish date : 2024-12-19 11:54:00
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