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.