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Coping with Threema: How do Lawyers Perceive Their Biggest Corruption Scandal?

BERDISOVÁ, L. - DLUGOŠOVÁ, Z. - MAZÚR, J.: Coping with Threema: How do Lawyers Perceive Their Biggest Corruption Scandal? Právny obzor, 103, 2020, special issue, pp. 63-86.
professional ethics, judicial integrity, trust in the justice system, crisis of legal profession
Though with their high wrongs I am struck to th' quick, Yet, with my nobler reason, 'gainst my fury Do I take part: the rarer action is In virtue than in vengeance: they being penitent, The sole drift of my purpose doth extend Not a frown further. Go, release them, Ariel. My charms I'll break, their senses I'll restore, And they shall be themselves. William Shakespeare, The Tempest, 1611
When Prospero, the protagonist of Shakespeare's play, wants to avenge evil deeds committed against him, he orchestrates a tempest that wrecks the ship of his malefactors. However, at the end of the play, he changes his plan and merely strives to understand his suffering. At this point, the villains begin to understand what they had caused. It is then revealed that the ship was only wrecked by magic, and it is magically restored. The story closes with a catharsis as all of the main characters return home, and the love thrives between Miranda, daughter of Prospero, and Ferdinand, son of his former enemy.
Shakespeare's plays rarely have such a happy ending. Violence and deadly bloodshed are more common. The Shakespearean quip 'let's kill all the lawyers' from Henry VI became quite well known. It is also known that many of Shakespeare's plays pose interesting legal questions that lawyers like to analyse, especially
The Merchant of Venice
Measure for Measure.
In the present article, we use the Tempest motive as a background for analysing events in Slovakia between 2019 and 2020 in connection with what became known as the Threema affair or simply Threema. Indeed, the affair's major consequence was the arrest of thirteen judges, including a former Deputy Justice Minister, one insolvency administrator and one attorney. The police named this operation the 'Tempest'. Of course, unlike Shakespeare's Tempest, no one knows yet whether there will be any catharsis. Nonetheless, we hope that the legal professions will see the crisis as a chance to rethink their role and purpose, and that
'they shall become themselves".
The outlined survey results may clarify whether our hope is realistic.
The paper has merely descriptive aspirations. Its main goal is to introduce the preliminary results of a survey that sought to gauge lawyers' reactions to the Threema. The survey was carried out in October and November 2020 in the form of a questionnaire distributed among judges, attorneys, prosecutors, notaries, enforcement officers, law professors and law students.
In the first part of the paper, we sum up the most relevant events related to the Threema communication and subsequent reactions. The second part of the article is dedicated to the methodology of the survey. In the third part, the results of the survey are presented.
1. What is Threema?
In many countries, Threema became popular as one of the most secure mobile phone applications, allowing for encrypted communication and collecting only a limited number of metadata. However, in Slovakia, the name of the application bears an extremely negative connotation and is even closely connected with the investigation of the murder of investigative journalist Ján Kuciak and his fiancée Martina Kušnírová. Between 2017 and 2018, Marian Kočner, a controversial businessman who stands accused of ordering the murder,
exchanged messages with several lawyers, including judges and prosecutors, via Threema to manipulate their decisions and obstruct justice.
The Slovak police seized Marian Kočner's mobile phone while investigating the murder. With Europol's assistance, the police was able to decode saved messages that Kočner had sent through Threema between September 2017 and May 2018. The messages obtained from Kočner's phone suggest that Kočner
inter alia
extensively discussed cases with judges, prosecutors and lawyers to gain sensitive information, to openly manipulate police and prosecutorial or court decisions in exchange for bribes, to lobby for some judges' interests through his web of contacts or even to give orders to specific judges how to proceed in their decision-making.
Kočner's Threema messages suggest that he regularly co-ordinated with businessman Norbert Bodor to arrange police database searches to obtain extensive personal data of selected journalists, investigators, prosecutors or judges. At the same time, Bodor appeared to serve as a liaison between Special Prosecutor Dušan Kováčik and top police officers, including former Police President Tibor Gašpar, to interfere with criminal investigations by halting themor replacing investigators or prosecutors.
The communication also shows that Kočner employed Alena Zsuzsová, who is also charged with ordering the murder of Ján Kuciak and Martina Kušnírová, to act as a honeypot, targering political and legal figures to gain sensitive information and potentially discredit them.
While Kočner's attorney Marek Para, insisted that the QR codes used by Threema cannot be paired with concrete individuals, the Specialised Criminal Court and the Supreme Court confirmed that Threema evidence had been legally obtained.
The Specialised Criminal Court also stated that it
'cannot come to believe that the Threema communication could have been tampered with or manipulated'
and called the defence's objections to Threema
'very abstract and absolutely unfounded'
. Eventually, Kočner's messages sent through Threema became one of the crucial pieces of evidence in court decisions about the forgery of TV Markíza promissory notes by Marian Kočner.
The Specialised Criminal Court found that the judge presiding over the promissory notes civil claim, initiated by Kočner, acted under pressure from former Deputy Justice Minister Jankovská and Kočner himself.
The Threema messages leaked from the investigation file in August 2019, when fragments of the communication were published for the first time by the newspaper DenníkN.
The messages reveal in explicit detail a robust corruption network in Slovakia's justice sector created over years. They even included how much Kočner paid for specific rulings in his favour. For example, by communicating with a prosecutor of the Bratislava I District Prosecution Service, Bystrík Palovič, Kočner attempted to stop criminal investigations against certain individuals and offered bribes to other prosecutors with whom Palovič promised to talk. One of Threema communications most cited in the media were exchanges between Marian Kočner and former Deputy Justice Minister and judge Monika Jankovská. The messages suggested that Jankovská co-ordinated with Kočner to arrange desirable court rulings with several judges while serving at the Justice Ministry. The Threema messages further showed that judge and former Bratislava I District Court President Vladimír Sklenka was in intense contact with Marian Kočner, informing him of the course of proceedings in his and other courts, and that Sklenka arranged desired court rulings in exchange for bribes. Vladimír Sklenka, who in the meantime resigned from his judicial post, reportedly confessed to his criminal activity and is currently co-operating with the police. Allegations ofjudicial corruption stemming from the Threema communication are under investigation, with some sixteen judges (including those who resigned from the judicial service) and four attorneys charged, of whom five judges are remanded in custody. In March 2020, in an investigative operation codenamed 'Tempest', the police arrested and brought charges against thirteen judges, including the former Deputy Justice Minister, one insolvency administrator, one attorney and one entrepreneur. In October 2020, the 'Tempest' transformed into a 'Gale' that hit six judges, the former Deputy Justice Minister, two attorneys and one entrepreneur with new criminal charges. It is uncertain whether the investigators gained inspiration from William Shakespeare and symbolically wished to play the role of Prospero, using their 'magic power' to reverse the injustice wrought upon the justice system. In any event, it is certain that the investigative operations have divided the judicial community in its views on the crisis and the need for reforms, and they have filled the public with outrage.
Legal professions, their leaders and their members, all reacted in different ways. In the present paper, we outline only some of these reactions to illustrate the diversity of ways of thinking behind the reaction.
In reaction to the publicised Threema messages and subsequent police seizure of the mobile phones of several judges in August 2019, the Judicial Council of the Slovak Republic issued a press statement on October 4, 2019 condemning corrupt behaviour in the Slovak judiciary. According to the statement, the President of the Judicial Council had no power to take any measures with regard to the exercise of judicial functions until the investigation was closed and the veracity of the Threema communication confirmed. The statement added that the Judicial Council Head would regard it as appropriate if judge Monika Jankovská considered a request to suspend her judicial function.
Subsequently,judges of the Prešov District Court called upon suspected judges to suspend their functions pending the outcome of criminal investigation. The Judges' Council of the Košice Regional Court later joined the statement. At the same time, the Judges' Council of the Bratislava District Court asked their colleagues
'to consider making a personal decision and choosing their further steps and stances in order not to create room for dou
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