Reports concerning the killing of a journalist always ‘in the public interest’, court rules on The Shift’s story

The Court of Appeal on Wednesday handed down a strong ruling in favour of press freedom when it found The Shift’s reporting on the murder of Slovak journalist Jan Kuciak, allegedly over his investigation into tax fraud through the companies millionaire businessman Marian Kočner set up in Malta, was “undoubtedly in the public interest”.

Kočner is accused of commissioning the murder of journalist Jan Kuciak and his fiancée because of his investigation into those Maltese companies and they alleged millions of euros in tax fraud they were perpetrating.

The appeals court, presided over by Mr Justice Lawrence Mintoff on Wednesday said of The Shift’s reportage on the matter: “The Court considers the killing of a journalist, even more so when the killing is possibly linked to their work, constitutes a manifest attack on freedom of expression.

“Therefore, reporting on any matter connected to attacks on this fundamental human right cannot be considered as anything less than a publication on a matter of public interest.”

The court made the statement in its ruling quashing three separate appeals lodged by Karl Schranz, Christian Ellul and E&S Consultancy in libel proceedings against Matthew Caruana Galizia over tweets (Twitter posts) he made about The Shift’s reportage on the matter.

The court of first instance presided over by Magistrate Rachel Montebello had already thrown out those three libel cases lodged against Caruana Galizia and another two filed respectively against The Shift and its founder Caroline Muscat. Appeals were not lodged against The Shift’s rulings.

Judge Mintoff has also gone into detail about the Slovak businessman’s alleged tax evasion through Maltese companies and Kuciak’s investigation being the alleged motive behind his murder that Kočner has been charged with commissioning.

The tax evasion vehicles Kuciak was investigating were companies set up for him in Malta by E&S Consulting, which was run by Karl Schranz and Christian Ellul, who was also married to Kočner daughter.

Referring to official Slovak police statements to the effect that Kuciak’s murder had been motivated by his journalistic work, the court said the subject of The Shift’s article “cannot but be considered a matter of public interest especially when Kočner’s arrest and prosecution happened only a few months after arrests and prosecutions of others in connection with the murder of the journalist Daphne Caruana Galizia, which is also being linked to the investigative journalistic work she was carrying out.”

After reviewing articles on those links in The Shift and online news Slovak portal Aktuality.sk, the court said “It irrefutably results that Marian Kočner was the target of an active and complex journalistic investigation by Jan Kuciak in the months and years before he was killed.

“These investigations were focused on Kočner’s involvement in a VAT tax fraud scheme through property transfers and other financial transactions between various companies registered in various jurisdictions.”

The €25 million tax scam

The court went into detail about Kuciak’s investigation into Kočner’s Malta tax evasion scam.

It singled out two companies: International Finance Group Limited and International Investments Holdings Limited (IIHL) that it confirmed were set up in Malta by Kočner using the services of E&S Consultancy Limited “with the involvement and participation as director and legal and judicial representative of the lawyer Christian Ellul who eventually married the daughter of Marian Kočner , now divorced”.

The court noted how Kuciak’s articles analysed in detail the multiple transfers of immovable property in which “the property appears to have been temporarily transferred to third parties, including Maltese companies controlled by Christian Ellul on paper but were effectively controlled by Kočner”.

He also reported the payment of tens of millions of euros in tax refunds into the bank accounts of the Slovak branch of the IIHL company from hotel transfers as well as a series of transfers of millions of euros of transfers from the Maltese companies to Kočner or his other companies.

From Kuciak’s reports, the court observed, “It is immediately evident that the [Maltese] IIHL company was “very active and an important link in the structure of ‘mailbox’ companies that were involved in the controversial transfers of hotel property and related transactions – so controversial that they were being investigated by the Police of the National Financial Crime Unit in Slovakia”.

Kuciak’s investigations focused specifically on the sale of two hotels in Donovaly in Slovakia by a Koÿner (Welten) company to the Maltese IIHL for €25 million and on their transfer after less than a month to IIHL subsidiary companies for just €100,000 – in the process defrauding the Slovak taxman of €8 million in revenue.

 ‘Evident Kuciak was investigating Kočner, Ellul and Maltese companies complicity’

The court said it was “evident that Jan Kuciak was investigating the complicity between Kočner and Maltese companies and specifically Christian Ellul, who was mentioned several times in Kuciak’s articles”.

It noted how in an article on 5 December 2017 Kuciak reported: ’Millions from the state budget were also received by companies founded in Malta by Christian Ellul. He later became Kočner’s son-in-law. A substantial part of VAT refunds ended up in the accounts of Marian Kočner and his companies in the form of loans.”

“The connection with Malta is mentioned several times in Jan Kuciak’s reports and it turns out Jan Kuciak had sent a series of questions to Christian Ellul asking about the transfer of properties between Maltese companies and others that had a connection with Kočner, but they remained unanswered.”

After The Shift reported on the subject matter in March 2019, Caruana Galizia tweeted about the case twice, on 14 and 15 March 2019, which landed him three libel suits.

The Shift and its founder Caroline Muscat had also been sued for libel over the article titled ‘The man charged with Jan Kuciak’s murder, his links to Malta and what a safe can reveal‘. Muscat, meanwhile, was also sued for sharing Caruana Galizia’s tweet on social media.

The court of first instance last July threw out all five cases. Ellul, Schranz and E&S Consultancy filed three separate appeals against the Caruana Galizia rulings.

Those were also thrown out on appeal on Wednesday and Ellul, Schranz and E&S Consulting were ordered to foot all of Caruana Galizia’s expenses.