Order;Information — ECLI:EU:C:2022:551
Date: 2022-07-08
Language of the case: Slovak
Court formation: Ninth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Slovakia

Summary C-710/20–1 
Case C-710/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
29 December 2020 
Referring court:  
Okresný súd Bratislava I (District Court for Bratislava I, Slovakia) 
Date of the decision to refer:  
12 December 2018 
Prosecuting authority:  
Krajská prokuratúra v Bratislave (Regional Public Prosecutor’s 
Office in Bratislava, Slovakia) 
Defendant:  
A. M. 
EN 
REQUEST FOR A PRELIMINARY RULING (SUMMARY) OF 12. 12. 2018 – CASE C-710/20 
 
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Subject matter of the dispute 
Revocation of the amnesty granted by the Prime Minister of the Slovak Republic 
on 3 March 1998 pursuant to the Ústavný zákon č. 71/2017 (Constitutional Law 
No 71/2017) and to the resolution of the Národná rada Slovenskej republiky 
(Parliament of the Slovak Republic) of 5 April 2017 No. 570  whose conformity 
with the Ústava SR (Constitution of the Slovak Republic) was confirmed by the 
Ústavný súd SR (Constitutional Court of the Slovak Republic) in its ruling of 
31 May 2017 (Ref. No PL. ÚS 7/2017–159) – Ne bis in idem principle – 
Retroactive annulment of an individual ruling in a criminal case. 
Subject matter and legal basis of the reference  
Interpretation of Articles 47 and 50 of the Charter of Fundamental Rights of the 
European Union, Article 82 of the Treaty on the Functioning of the European 
Union and Article 4(3) of the Treaty on European Union pursuant to Article 267 
TFEU. 
Questions referred 
1. Does a provision of a national law that annuls directly – without a decision 
of a national court – the decision of a national court discontinuing criminal 
proceedings, which is, under national legislation, a final decision entailing 
acquittal and on the basis of which the criminal proceedings have been 
definitively discontinued as a result of the amnesty granted in accordance 
with a national law, comply with the right to a fair trial, guaranteed in 
Article 47 of the Charter of Fundamental Rights of the European Union, and 
with the right not to be tried or punished twice in criminal proceedings for 
the same criminal offence, guaranteed in Article 50 of the Charter of 
Fundamental Rights of the European Union and with Article 82 of the 
Treaty on the Functioning of the European Union? If the answer to this 
question is in the negative, is the national court bound by such a 
provision of national law? 
2. Does a provision of national law limiting review by the Constitutional Court 
of a resolution of the Národná rada Slovenskej republiky (Parliament of the 
Slovak Republic) which revoked an amnesty or an individual pardon and 
was adopted under Article 86(i) of the Ústava SR (Constitution of the 
Slovak Republic), merely to an assessment of the resolution’s compliance 
with the Constitution of the Slovak Republic, without taking into account 
binding acts adopted by the European Union, in particular the Charter of 
Fundamental Rights of the European Union, the Treaty on the Functioning 
of the European Union and the Treaty on European Union, comply with the 
KRAJSKÁ PROKURATÚRA V BRATISLAVE 
 
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principle of sincere cooperation under Article 4(3) of the Treaty on 
European Union and Article 267 of the Treaty on the Functioning of the 
European Union, and with Article 82 of the Treaty on the Functioning of the 
European Union, with the right to a fair trial, guaranteed in Article 47 of the 
Charter of Fundamental Rights of the European Union, and with the right 
not to be tried or punished twice in criminal proceedings for the same 
criminal offence, guaranteed in Article 50 of the Charter of Fundamental 
Rights of the European Union? If the answer to this question is in the 
negative, is the national court bound by such a ruling of the national 
Constitutional Court? 
Provisions of EU law cited 
Article 82 of the Treaty on the Functioning of the European Union 
Articles 47, 48(2) and 50 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’) 
Article 4(3) of the Treaty on European Union 
Provisions of national law cited 
Ústava Slovenskej republiky (Constitution of the Slovak Republic, ‘the 
Constitution’) in force since 4 April 2017. 
Pursuant to Article 86(i) of the Constitution, the Parliament is to have jurisdiction, 
inter alia: 
‘to rule on the annulment of a decision of the President adopted in pursuance of 
Article 102(1)(j), if that decision is contrary to the principles of a democratic 
State governed by the rule of law; the resolution adopted shall have general 
scope, and shall be published in the same way as a law’. 
Article 129a of the Constitution provides that the Constitutional Court of the 
Slovak Republic has the following power: 
‘The Constitutional Court shall rule on the constitutionality of a resolution of the 
Parliament of the Slovak Republic revoking an amnesty or an individual pardon 
adopted under Article 86(i). The Constitutional Court shall institute proceedings 
of its own motion under the first sentence; Article 125 shall apply mutatis 
mutandis’. 
Article 154f of the Constitution also provides for the following retroactive effects: 
(1) The provisions of Article 86(i), Article 88a, and Article 129a shall also 
apply to Article V and Article VI of the Decision of the Prime Minister of the 
Slovak Republic of 3 March 1998 decreeing an amnesty, published under 
REQUEST FOR A PRELIMINARY RULING (SUMMARY) OF 12. 12. 2018 – CASE C-710/20 
 
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No 55/1998 Z. z., the Decision of the Prime Minister of the Slovak Republic of 
7 July 1998 decreeing an amnesty, published under No 214/1998 Z. z., and the 
Decision of the President of the Slovak Republic of 12 December 1997 granting a 
pardon to an accused person, Ref. No 3573/96–72–2417. 
(2) Revocation of amnesties and pardons under paragraph 1  
a) shall entail annulment of decisions of public authorities in so far as 
they have been adopted and substantiated on the basis of amnesties and 
pardons as referred to in paragraph 1, and 
b) shall remove legal obstacles to prosecutions based on amnesties and 
pardons as referred to in paragraph 1; the duration of such legal obstacles 
shall not be included in the calculation of the limitation periods in respect of 
the acts covered by amnesties and pardons as referred to in paragraph 1.’ 
Zákon o ústavnom súde (Law on the Constitutional Court) (in force since 4 April 
2017); in particular Paragraphs 48a and 48b. 
Paragraph 48b(5)–(7) reads as follows: 
(5) The plenary chamber of the Constitutional Court shall rule on the substance 
of the case in the form of a judgment. The judgment shall be notified to the 
Parliament of the Slovak Republic and the Government of the Slovak Republic in 
the case of an amnesty, and to the President of the Slovak Republic in the case of 
a pardon. The President of the Constitutional Court may order the judgment to be 
notified to other persons as well. 
(6) The Constitutional Court shall rule on the constitutionality of a resolution, 
or of any part of a resolution, of the Parliament of the Slovak Republic revoking 
an amnesty or an individual pardon, within a period of 60 days from the start of 
the proceedings; if the Constitutional Court does not rule within that period, the 
proceedings shall be discontinued. 
(7) The order discontinuing the proceedings or rejecting the application shall 
have the force of res judicata, which shall exclude further examination by the 
Constitutional Court of the resolution of the Parliament of the Slovak Republic 
revoking an amnesty or an individual pardon’. 
Succinct presentation of the facts and procedure in the main proceedings 
1 A. M. was prosecuted for the offence of abuse of power by a public official under 
Paragraph 158(1)(a), (b), (c) and Paragraph 158(2)(c) of the Trestný zákon 
(Criminal Code) in conjunction with the offence of obstructing the preparation 
and conduct of an election or referendum under Paragraph 177 of the Criminal 
Code, and also for the offence of forgery and alteration of an official document, 
official seal and official closure under Paragraph 176(1) and Paragraph 176(2)(b) 
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of the Criminal Code, which offences he allegedly committed with the intention of 
frustrating a referendum by forging and altering ballot papers. The criminal 
proceedings were definitively closed by an order of the Okresný súd Bratislava I 
(District Court for Bratislava I), which has acquired the force of res judicata and 
is enforceable. According to Slovak law, that order is final, it is a decision on the 
substance and has the effects of a judgment of acquittal. The criminal proceedings 
against A. M. were discontinued on the grounds that he was covered by the 
Decision of the Prime Minister of the Slovak Republic of 3 March 1998 decreeing 
an amnesty. In 2017, the Parliament of the Slovak Republic adopted the ústavný 
zákon č. 71/2017 Z. z. (Constitutional Law No 71/2017) and an amendment to the 
Law on the Constitutional Court (Law No 72/2017) as well as a resolution to 
revoke the amnesty. Subsequently, the Constitutional Court of the Slovak 
Republic, in its ruling of 31 May 2017 (Ref. No 7/2017), found that the said 
resolution to revoke the amnesty was constitutional. Consequently, the reason for 
the discontinuation of criminal proceedings disappeared. 
2 By reason of those new legislative amendments, proceedings were pending before 
the Constitutional Court of the Slovak Republic to set aside the final order 
discontinuing criminal proceedings. In those proceedings, A. M. did not have the 
status of an ordinary participant or intervener, nor was he notified by the 
Constitutional Court of the Slovak Republic that such proceedings were pending. 
Essential arguments of the parties in the main proceedings 
3 Counsel for the accused made an application to the District Court to stay the 
proceedings and to submit a request for a preliminary ruling to the Court of Justice 
of the European Union concerning the interpretation of Article 47, Article 50 and 
Article 48(2) of the Charter in conjunction with Article 4(3) TEU and Article 267 
TFEU, as well as Article 82 TFEU. 
4 According to counsel for the accused, the national legislation is legally unclear, 
specifically the provisions of Section 6 of the Law on the Constitutional Court 
(specifically Paragraphs 48a and 48b), the provisions of Constitutional Law 
No 71/2017 and the Resolution of the Parliament of the Slovak Republic No 570 
of 5 April 2017 repealing Article V and Article VI of the Decision of the Prime 
Minister of the Slovak Republic of 3 March 1998 decreeing an amnesty, published 
under No 55/1998 Z. z., the Decision of the Prime Minister of the Slovak 
Republic of 7 July 1998 decreeing an amnesty, published under No 214/1998 and 
the Decision of the President of the Slovak Republic granting a pardon to an 
accused person of 12 December 1997, Ref. No 3573/96–72–2417.  
5 Since the referring court agreed with the defence counsel’s application in its 
entirety, it ruled as in the operative part of this order. 
REQUEST FOR A PRELIMINARY RULING (SUMMARY) OF 12. 12. 2018 – CASE C-710/20 
 
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Succinct presentation of the reasons for the reference 
6 In the view of the referring court, the Charter is applicable in the present case, and 
the referring court wishes to point out the following considerations put forward by 
Advocate General Kokott in Case C-73/2016 on 30 March 2017: 
‘Article 51(1) of the Charter […] states that the fundamental rights guaranteed in 
the Union legal order apply in all situations governed by EU law. […] 
Consequently, in individual cases, a national court may frequently be required to 
assess whether the Charter is applicable. In so far as EU law and the Charter are 
not applicable, comparable requirements will frequently arise under Article 8 
ECHR.  
For these proceedings, it follows that […] only the Charter is applicable in the 
field of criminal law, in so far as it involves questions determined by EU law’. 
Article 51, which defines the ‘field of application’ of the Charter, states in 
paragraph 1 thereof that the provisions of the Charter ‘are addressed to […] the 
Member States only when they are implementing Union law’, and in paragraph 2 
thereof that the Charter ‘does not extend the field of application of Union law 
beyond the powers of the Union’. In that regard, the Court of Justice has held that 
‘in order to determine whether national legislation involves the implementation of 
EU law for the purposes of Article 51 of the Charter, some of the points to be 
determined are whether that legislation is intended to implement a provision of 
EU law; the nature of that legislation and whether it pursues objectives other than 
those covered by EU law, even if it is capable of indirectly affecting EU law; and 
also whether there are specific rules of EU law on the matter or capable of 
affecting it’ (judgment of 6 March 2014, Siragusa, C-206/13, EU:C:2014:126, 
paragraph 25). 
7 As regards the application of Article 51(1) of the Charter, the referring court also 
cites point 62 of the Opinion of Advocate General Kokott in Case C-122/2015. 
8 Among the fundamental rights guaranteed by the TFEU is the freedom of 
establishment under Article 49 thereof, and in the present case a custodial 
sentence may be imposed, which by its very nature infringes freedom of 
movement. 
9 The referring court points to the reference for a preliminary ruling in Case 
C-475/2016, in which a Greek court sought to ascertain whether it was necessary 
to apply the Charter automatically where the offender (an EU national), if 
convicted of a criminal offence, would have his right of free movement restricted 
(and a custodial sentence undoubtedly restricts such a right). In the view of the 
referring court, the answer can be deduced from EU case-law and therefore, in the 
light of the judgment in Pfleger, the Charter is clearly applicable. 
10 The above undoubtedly applies to A. M., since he is an EU national and is 
threatened with a restriction of his freedom of movement. 
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11 In this regard, the court stresses that the severity of sanctions (whether criminal or 
administrative) should be assessed not on the basis of the penalties normally 
imposed (including the possibility of such penalties being mitigated under 
domestic law or established practice), but primarily on the basis of the penalty 
to which the person concerned is a priori liable (see Opinion of Advocate 
General Campos Sánchez-Bordona of 12 September 2017 in Case C-537/16 and 
judgment of the ECHR of 4 March 2014 in Grande Stevens and Others v Italy, 
paragraph 98). 
12 The referring court considers that a provision of national law which directly and 
retroactively annuls an individual ruling in a criminal case which is final and 
constitutes a ruling on the merits is incompatible with the principles of 
proportionality, effectiveness and the right of access to a court. 
13 In the event that the Court answers one or more of the questions referred in the 
negative, the referring court seeks an interpretation of European Union law on 
whether or not it is bound by the resolution of the Parliament of the Slovak 
Republic to revoke the amnesty, that is to say, whether or not it should continue 
the proceedings in the case at issue.