The Slovak Amnesty case before the CJEU: respect for national constitutional identity and (pre-) settlement with the past

On 16 December 2021, the Court of Justice delivered its ruling in the case C-203/20 AB and Others. The judgment provides an interesting clarification of the ne bis in idem principle in EU law and an analysis of the specific national constitutional procedure revoking an amnesty. The main conclusion of the Court is that the principle ne bis in idem does not prevent the issuance of a European arrest warrant against the persons accused of kidnapping the son of the former Slovak president. The Court also ruled that the revocation of the amnesties of these accused persons in 2017 and their review by the Slovak Constitutional Court did not implement EU law, as these procedures fall outside its scope.

1. Factual background

The facts of the case represent an interesting flashback to Slovakia’s pre-EU-membership past. In 1995, the son of the former Slovak President was abducted from Slovakia to the neighbouring Austria, and subsequently he was arrested due to an ongoing German investigation. The act of abduction was attributed by the prosecutors in Slovakia to the individuals charged in the main proceedings in this case, some of whom were working for the Slovak Intelligence Service at the moment of abduction. In 1998, the accused were granted amnesty, which resulted in the cessation of the criminal proceedings in Slovakia. In 2017, following wide-spread public pressure and the release of the film “Kidnapping” depicting the events of 1995, the Slovak Parliament revoked the amnesty. The revocation was assessed by the Slovak Constitutional Court which confirmed its compatibility with the Slovak Constitution. Subsequently, the criminal proceedings against the accused were reopened before the referring national court. In the context of these proceedings, the Slovak court referred three questions to the Court of Justice. The Slovak court first asked whether the EU Charter of Fundamental Rights prevents the issuance of a European arrest warrant against an individual, whose prosecution was reopened after the revocation of a previously granted amnesty. The European arrest warrant was issued because one of the accused individuals is supposed to be abroad (para 17). Second, the national court asked whether a national law which annuls the decision of a national court to discontinue criminal proceedings breaches EU law. Finally, the referring court asked whether EU law, including the principle of sincere cooperation and the right to fair trial, prevents national law which limits the review of the Constitutional Court to examine only the compliance with the national constitution, without being able to consider EU law.

2. The Court’s reasoning

Regarding the first question, the Court confirmed that the decision of the Slovak courts in 2001 to suspend the prosecution had the consequences of an acquittal (para 59). However, it resulted in the cessation of the prosecution, before the Slovak courts had assessed the criminal liability of the accused persons (para 60). As this 2001 decision was issued before the determination of criminal liability, the principle ne bis in idem does not preclude the issuance of a European arrest warrant against the accused (para 61).

As for the second question, the Court assessed whether the national legislative and judicial procedures at hand fall within the scope of the Directive 2012/13 on the right to information in criminal proceedings, which provides for specific information guarantees for suspects and accused in criminal proceedings. . According to the Court, the Directive covers both European Arrest Warrant proceedings and criminal proceedings to the extent that the purpose of both is to establish the criminal liability of the accused person (para 69). However, the Directive does not apply to the national legislative procedure revoking the amnesty and the judicial procedure ensuring the constitutional review (paras 70 – 71).

Regarding the final question, the Court affirmed the position of the Slovak government as well as the AG’s Opinion, that the national legislative procedure revoking an amnesty and its judicial constitutional review are not implementing EU law (para 74). The Court confirmed therefore that it lacked the jurisdiction to answer the third question (para 75).

3. Analysis

There are three key conclusions that I would like to draw from the judgment. First, the Court focused on a teleological and systematic interpretation of the ne bis in idem principle enshrined in Article 50 of the Charter. It admitted in paragraph 59 that the 2001 discontinuation of the prosecution against the accused had the same effects as an acquittal decision. If the Court had instead opted for a literal interpretation, it could have easily ruled that given the existing effects of acquittal, the ne bis in idem principle applies and the national courts should have discontinued the criminal proceedings. However, the Court considered the context and objectives of the EU’s Area of Freedom, Security and Justice, one of which is to prevent impunity for persons committing an offence (para 58). Perhaps the most convincing argument in this respect is reference to paragraph 51 of AG Kokott’s Opinion (in para 57 of the judgment). This relates to the interpretation of the terms “acquitted” and “convicted” by the AG in a way that it includes assessment of the circumstances and the determination of the merits of the case. Indeed, the emphasis put by the AG on the objective-oriented interpretation of Article 50 of the Charter prevents a situation whereby the person granted amnesty without assessment of his criminal responsibility could escape prosecution on the basis of invoking the ne bis in idem principle. The Court and the AG agree therefore that the determination of criminal liability is a condition for triggering the application of the ne bis in idem principle. The mere existence of decision discontinuing the criminal prosecution is not sufficient to trigger the application of this principle despite having the same effects under national law as an acquittal.

The second key conclusion relates to the impact of EU law on national constitutional systems. In recent years, the concept of national constitutional identity has become a contentious point. On one hand, its critics point to its vague nature and claim that it has become a justification ground for national courts and governments to introduce policies running against the ideals of European integration (Scholtes, 545). On the other hand, some national governments argue that the Court of Justice does not respect their national constitutional identity. The judgment in the Slovak Amnesty case can be used as an argument to counter such critical voices on both sides. Although neither the judgment nor the AG Opinion contain any reference to national constitutional identity, and thereby do not suggest that any party raised this issue during the proceedings, the respect for this concept is obvious from the judgment. The Court of Justice uses an extremely careful approach to review the national legislative procedure revoking amnesty and the subsequent national constitutional review. Should the voices to abandon the concept of national constitutional identity be heard, the overall approach of the Court of Justice might have been quite different. Indeed, were the Court inclined towards judicial activism in this case, it could have identified links with EU law, e. g. regarding the principle of proportionality and the principle of effectiveness as suggested by the referring court (see para 21 of the judgment). However, the Court (and the AG) decided not to follow this approach. It held instead that the revocation of amnesty and review of its constitutionality was not implementing EU law and thereby showed the respect for this facet of Slovak constitutional identity.

Finally, probably the most important consequence of this judgment is that it enables the Slovak courts to deal with this controversial chapter of Slovak history. Indeed, the kidnapping of the son of the former Slovak president and the following amnesty represented a rule of law backsliding in the 1990s, which prevented Slovakia from obtaining an applicant State status in 1997 EU summit in Luxembourg. Fortunately, this obscure trajectory was diverted and Slovakia became a member of the EU in 2004, but this skeleton in the closet has continued to haunt the Slovak public even thereafter. In this respect, the 2017 revocation of amnesty was perceived as an important step to settle the past. Of course, one must not forget the crucial principle enshrined in Article 48 of the Charter: the presumption of innocence. In other words, the judgment of the Court of Justice means that the Slovak courts may go ahead without further hindrance to confirm or to reject the criminal liability of the accused persons.