Opinion of the Advocate General — ECLI:EU:C:2021:498
Date: 2021-06-17
Language of the case: Slovak
Subject matter: Principles, objectives and tasks of the Treaties;Judicial cooperation in criminal matters;Police cooperation;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Slovakia

Translation C-203/20 — 1 
Case C-203/20 
Request for a preliminary ruling 
Date lodged:  
11 May 2020 
Referring court:  
Okresný súd Bratislava III (Slovakia) 
Date of the order for reference:  
11 May 2020 
Defendants:  
AB 
CD 
EF 
GH 
IJ 
LM 
NO 
PR 
ST 
UV 
WZ 
BC 
DE 
FG 
JL 
EN 
REQUEST FOR A PRELIMINARY RULING OF 11. 5. 2020 — CASE C-203/20 
 
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OKRESNÝ SÚD BRATISLAVA III 
(DISTRICT COURT, BRATISLAVA III) 
[...] 
Bratislava, 11 May 2020 
[...] 
Re: Request for a preliminary ruling (Article 267 TFEU) 
Request for application of the urgent preliminary ruling procedure 
(Article 107 of the Rules of Procedure) 
The President of the Okresný súd (District Court) Bratislava III, Slovakia [...], in 
the criminal case being tried before the Okresný súd Bratislava III [...], in 
accordance (by analogy) with Article 224(7) of the Code of Criminal Procedure in 
force until 31 December 2005 (‘the Code of Criminal Procedure’) and Article 267 
TFEU, submits the present request for a preliminary ruling under Article 267 
TFEU and a request for application of the urgent preliminary ruling procedure 
under Article 107 of the Rules of Procedure of the Court of Justice.  
Identification of the parties: 
Proceedings brought against: 
1. Defendant AB, [...], Slovak Republic [...] [Or. 2] [...] 
2. Defendant CD, [...], Slovak Republic [...] 
3. Defendant EF, [...], Slovak Republic [...] 
4. Defendant GH, [...], Slovak Republic [...] 
5. Defendant IJ, [...], Slovak Republic [...] 
6. Defendant LM, [...], Slovak Republic [...] 
7. Defendant NO, [...], Slovak Republic [...] [Or. 3] 
8. Defendant PR, [...], Slovak Republic [...] 
9. Defendant ST, [...], Slovak Republic, residing at the time at an unknown 
address, proceedings in absentia [...] 
10. Defendant UV, [...], Slovak Republic [...] 
AB AND OTHERS 
 
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11. Defendant WZ, [...], Slovak Republic [...] 
12. Defendant BC, [...], Slovak Republic [...] 
13. Defendant DE, [...], Slovak Republic [...] 
14. Defendant FG, [...], Slovak Republic [...] [Or. 4] [...] 
15. Defendant JL, [...], Slovak Republic [...] 
16. Victim HI, [...], Slovak Republic 
17/ Public prosecution brought by: 
Krajská prokuratúra (Regional Prosecutor’s Office), Bratislava [...] 
The Okresný súd (District Court) Bratislava III (‘the referring court’) [...], in the 
case involving AB and Others, for the offence of abduction to a foreign country, 
committed as a group within the meaning of Article 9(2), in conjunction with 
Article 233(1) and (2)(a), of the Criminal Code in force at the relevant time, 
decided as follows at a closed hearing on 21 June 2019: 
I. [...] [suspension of proceedings] 
II. The following questions are referred for a preliminary ruling to the 
Court of Justice of the European Union under Article 267 TFEU: 
(1) Does the ne bis in idem principle preclude the issuance of a European arrest 
warrant within the meaning of Council Framework Decision 2002/584/JHA of 
13 June 2002 on the European arrest warrant and the surrender procedures 
between Member States, and taking into account Article 50 of the Charter of 
Fundamental Rights of the European Union, where the criminal case has been 
finally closed by a judicial decision to acquit or to discontinue the case, if those 
decisions have been adopted on the basis of an amnesty that has been revoked by 
the legislature after the decisions became final and the domestic legal order 
provides that revocation of such an amnesty entails annulment of decisions of 
public authorities, where they have been adopted and [Or. 5] substantiated on the 
basis of amnesties or pardons, and the legal obstacles of criminal prosecutions that 
were based on an amnesty thus revoked have disappeared, without a specific 
judicial decision or judicial proceedings? 
(2) 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 law, a final decision entailing acquittal and 
on the basis of which the criminal proceedings have been finally discontinued 
following 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 the right not to be tried or punished twice in criminal 
REQUEST FOR A PRELIMINARY RULING OF 11. 5. 2020 — CASE C-203/20 
 
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proceedings for the same criminal offence, guaranteed in Article 50 of the Charter 
of Fundamental Rights of the European Union and in Article 82 of the Treaty on 
the Functioning of the European Union? 
(3) Does a provision of national law limiting review by the Constitutional Court 
of the Resolution of the Národná rada Slovenskej republiky (National Council of 
the Slovak Republic), which revoked an amnesty or individual pardons and was 
adopted under Article 86(i) of the Constitution of the Slovak Republic, merely to 
an assessment of the resolution’s constitutionality, 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 principle of 
sincere cooperation within the meaning of Article 4(3) of the Treaty on European 
Union, Article 267 of the Treaty on the Functioning of the European Union and 
Article 82 of the Treaty on the Functioning of the European Union, the right to a 
fair trial, guaranteed in Article 47 of the Charter of Fundamental Rights of the 
European Union, and 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? 
III. Under Article 107 of the Rules of Procedure [of the Court of Justice], the 
referring court asks the Court of Justice to deal with the request for a preliminary 
ruling under an urgent procedure, since the case concerns a European arrest 
warrant, which must be dealt with as a matter of urgency within the meaning of 
Article 17(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on 
the European arrest warrant and the surrender procedures between Member States 
(‘Framework Decision 2002/584’) (judgments of 12 August 2008, Santesteban 
Goicoechea, C-296/08 PPU, EU:C:2008:457; of 1 December 2008, Leymann and 
Pustovarov, C-388/08 PPU, EU:C:2008:669; of 30 November 2009, Kadzoev, 
C-357/09 PPU, EU:C:2009:741; order of 3 April 2010, Gataev and Gataeva, 
C-105/10 PPU, EU:C:2010:176; judgment of 28 April 2011, El Dridi, 
C-61/11 PPU, EU:C:2011:268).  
I. General grounds for the referring court’s position 
1. The chamber of the referring court has decided to make a request for a preliminary 
ruling on the basis of the following circumstances. On 27 November 2000, the 
Krajská prokuratúra (Regional Prosecutor’s Office), Bratislava [...] brought a 
public prosecution before the referring court against (1) defendants AB, CD, GH, 
EF, IJ, PR, LM and NO, who were charged with the following offences: abuse of 
power by a public official within the meaning of Article 158(1)(a) of the Criminal 
Code in force until 31 December 2005 (‘the Criminal Code’), committed as a 
group within the meaning of Article 9(2) of the Criminal Code; abduction to a 
foreign country within the meaning of Article 233(1) and (2)(a) of the Criminal 
Code, committed as a group within the meaning of Article 9(2) of the Criminal 
Code; robbery within the meaning of Article 234(1) and (2)(a) and (b) of the 
AB AND OTHERS 
 
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Criminal Code, committed as a group within the meaning of Article 9(2) of the 
Criminal Code; extortion within the meaning of Article 235(1) and (2)(a) and (b) 
of the Criminal Code, committed as a group within the meaning of Article 9(2) of 
the Criminal Code; and also defendants ST [Or. 6] UV, WZ and BC, who were 
charged with the following offences: abduction to a foreign country within the 
meaning of Article 233(1) and (2)(a) of the Criminal Code, committed as a group 
within the meaning of Article 9(2) of the Criminal Code; robbery within the 
meaning of Article 234(1) and (2)(a) and (b) of the Criminal Code, committed as a 
group within the meaning of Article 9(2) of the Criminal Code; extortion within 
the meaning of Article 235(1) and (2)(a) and (b) of the Criminal Code, committed 
as a group within the meaning of Article 9(2) of the Criminal Code; and against 
(2) defendant DE for the offence of facilitating the commission of offences within 
the meaning of Article 166(1) of the Criminal Code, offences that the defendants 
allegedly committed in the following circumstances:  
(1) defendants AB, CD, EF, GH, IJ, LM, NO and [...] PR, being officers of a 
State body, namely the Slovenská informačná služba (Slovak Intelligence Service; 
‘the SIS’), exceeding the scope of the powers of that service as set out in 
Article 1(2) of zákon číslo 46/1993 Z. z. o Slovenskej informačnej službe (Law 
No 46/1993 on the Slovak Intelligence Service; ‘Law 46/1993’), and of the duties 
as set out in Article 2 of Law 46/1993 and in breach of the obligations incumbent 
on officers of the Intelligence Service within the meaning of Article 7 of Law 
46/1993; and defendants ST, UV, WZ and BC, as civilians, failing to comply with 
the requirements laid down in Article 11(1)(c) of Law 46/1993, and as members 
of an organised group within which tasks were allocated in such a way as to harm 
HI by infringing his rights guaranteed under the Constitution in that, after 
following him, arresting him by force and drugging him, they surrendered him to 
the Austrian police force in his private motor vehicle by driving him to Austria, a 
country in which he was the subject of an international arrest warrant issued on 
18 November 1994; their involvement in the commission of that offence was as 
follows: defendant [...] AB, being the Director of the SIS, within the framework of 
the vertical chain of command, issued an oral instruction to [...] PR, an SIS officer 
assigned to the Defence, Protection and Training Section, on an unspecified date 
during summer 1995, in an SIS building in Bratislava [...], to set up an organised 
group of civilians for the purpose of carrying out special missions for the SIS, and 
that group was set up and used for the arrest of HI on 31 August 1995.  
At an unspecified date in August 1995, in breach of Article 10(1) of Law 46/1993, 
[AB] instructed CD, the Director of Service 46 of the SIS (Surveillance and 
Operational Techniques), by order of the Director of the SIS No 17/1994 on the 
surveillance of persons and objects (‘Order 17/1994’), to use, in breach of 
Article 13(2) of Law 46/1993, technical means of intelligence-gathering within 
the meaning of Article 12(1)(c) for purposes of the surveillance of XY and HI, in 
that he ordered, in breach of Article 7(1) of the Order of the Director of the 
Surveillance and Operational Techniques Service of the SIS No 4/1994 of 15 July 
1994 (‘Order 4/1994’), the surveillance of XY, which began on 13 August 1995 at 
10.30 in Bratislava [...] although the surveillance file, No 4600/337, code name 
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[...] was not submitted until 14 August 1995, and the surveillance of HI, which 
began on 23 August 1995 in [...] although the surveillance file was not submitted 
and the conditions laid down in Article 7(1) of Order 4/1994 were not complied 
with.  
On 28 August 1995, [AB] instructed LP, Director of Domestic Intelligence of 
Section 2 of the SIS, to make ready, using SIS funds, five private motor vehicles 
of various makes in the car park in front of the Ružinov winter ice rink for 
19 August 1995, and on 29 August 1995 he instructed him to designate two 
officers of the Special Operations Division of the SIS with a private motor 
vehicle, who were to pick up victim HI’s motor vehicle, together with the victim 
HI, at the [...] station in Bratislava [...] and drive it to Austria, which he did and he 
informed AB accordingly. [Or. 7] 
From 28 August 1995 to 31 August 1995, through defendant CD, he obtained 
information from the Head of Division 1 of Service 46 of the SIS, defendant EF, 
concerning the progress of the operational implementation and the surveillance of 
HI, took decisions and issued oral instructions to the Director of Section 2 of the 
SIS and to defendant CD in order to coordinate the activities of the various teams 
carrying out the surveillance, arrest and conveyance of the victim over the border, 
which culminated on 31 August 1995 at 10.47 in the arrest of HI at gunpoint.  
On 13 August 1995, in an SIS building in Bratislava [...], defendant CD, in his 
capacity as Director of Service 46 of the SIS, in breach of Article 10(1) of Law 
46/1993 and of Order 17/1994, gave an oral instruction to his subordinate, the 
Head of Division 1, defendant EF, to use technical means of intelligence-
gathering within the meaning of Article 12(1)(c) of Law 46/1993, in breach of 
Article 13(2) of Law 46/1993, for the purposes of the surveillance of an individual 
named XY, which began at 10.30 on Hraničná Street, Bratislava [...] with the 
involvement of 13 SIS officers and using 8 private motor vehicles and technical 
means [of intelligence-gathering], supervising himself the surveillance although 
he was aware that the procedure was unlawful since he had not obtained the 
consent of the Director of the SIS, or of a person authorised by the latter, to use 
technical means of intelligence-gathering, and he acted before obtaining written 
authorisation from the duty judge of the former Mestský súd (Municipal Court) of 
Bratislava.  
On 14 August 1995, after discussing the operation with the Director of Section 2 
of the SIS on the basis of the surveillance file prepared the same day [...], he 
ordered junior officers of the SIS, defendants EF and IJ, to continue surveillance 
of XY until 26 August 1995.  
On 24 August 1995, in breach of Order 17/1994 and Article 7(1) of Order 4/1994, 
he gave an oral instruction to defendant EF, Head of Division 1 of Service 46 of 
the SIS, to conduct surveillance of HI in the town of [...] and the surrounding area; 
from him he obtained information concerning the operational implementation and 
AB AND OTHERS 
 
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the surveillance of HI which he himself conveyed to the Director of the SIS, 
defendant AB.  
On 30 and 31 August 1995, he directed the surveillance, he personally provided 
information on the surveillance to the Director of Section 2 of SIS and the 
Director of SIS, defendant AB, by mobile phone where necessary; he received 
instructions from the latter and issued directions to officers of the Surveillance 
Division through defendant EF, who was in the town of [...]. 
Then, when on 31 August 1995 at 10.30 HI left his house in his private motor 
vehicle [...], he gave orders for HI to be followed and — after HI had been 
stopped and arrested at gunpoint — for the national road No II/502 to be blocked 
off by private motor vehicles of the surveillance unit.  
Next, defendant EF, in his capacity as Head of Division 1 of Service 46 of the 
SIS, within the framework of the vertical chain of command, received on 
13 August 1995, in an SIS building in Bratislava, from the Director of Service 46, 
defendant CD, the order to use operational means of intelligence-gathering within 
the meaning of Article 11 of Law 46/1993 and technical means of intelligence-
gathering within the meaning of Article 12 of Law 46/1993 for the purpose of 
surveillance of XY and, in breach of Article 10(1) of Law 46/1993, of Order 
17/1994 and of Article 7(1) of Order 4/1994, he ordered junior SIS officers 
[Or. 8] to follow XY in their private motor vehicles although he knew that the 
Director of the SIS or a person authorised by him under Article 11(2) had not 
taken the decision to use operational means of intelligence-gathering and that the 
use of technical means of intelligence-gathering within the meaning of 
Article 12(1)(c) had not been given prior authorisation by the duty judge of the 
former Mestský súd (Municipal Court), Bratislava under Article 13(2) of Law 
46/1993.  
On 27 August 1995 in an SIS building in Bratislava [...], in breach of Article 10(1) 
of Law 46/1993, of Order 17/1994 and of Article 7(1) of Order 4/1994, he ordered 
his deputy, defendant IJ, and other members of the division to keep watch on HI’s 
family home from the motor vehicle [...] he had arranged to be parked in the town 
of [...] and to use SIS private motor vehicles for following HI’s movements 
outside the town and to inform him of the results of the surveillance, although he 
knew that the use of operational means of intelligence-gathering within the 
meaning of Article 11(22) of Law 46/1993 had not been decided on by the 
Director of the SIS or by a person authorised by the latter and that the use of 
technical means of intelligence-gathering within the meaning of Article 12(1)(b) 
and (c) of Law 46/1993 [had not been approved] by the competent duty judge of 
the former Mestský súd (Municipal Court), Bratislava.  
On 31 August 1995, in the town of [...], using a transmitter and a mobile phone, he 
gave instructions to junior SIS officers and informed the Director of Service 46 of 
the SIS, defendant CD, of the progress of the surveillance and then, when at 10.47 
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HI was arrested at gunpoint, he personally used his motor vehicle [...] to take part 
in blocking national road II/502 to stop approaching vehicles.  
On 13 August 1995, in an SIS building in Bratislava, defendant IJ, an SIS officer 
and deputy to the Head of Division 1 of Service 6 of the SIS, then received, within 
the framework of the vertical chain of command, an oral instruction from the 
Director of Service 46 of the SIS and the Head of Division 1 to use operational 
means of intelligence-gathering within the meaning of Article 11 of Law 46/1993 
and technical means of intelligence-gathering within the meaning of Article 12 of 
Law 46/1993 for the purposes of surveillance of XY, in breach of Article 10(1) of 
Law 46/1993, of Order 17/1994 and of Article 7(1) of Order 4/1994; he ordered 
junior SIS officers to follow XY in private motor vehicles, although he knew that 
the Director of the SIS or a person authorised by the latter under Article 11(2) of 
Law 46/1993 had not taken the decision to use operational means of intelligence-
gathering and that the use of technical means of intelligence-gathering within the 
meaning of Article 12(1)(c) of Law 46/1993 had not received prior written 
authorisation from the competent duty judge of the former Mestský súd 
(Municipal Court), Bratislava, whilst he had personally directed the surveillance 
and informed the Director of Service 46 of the SIS, defendant CD, on the progress 
of the surveillance.  
Next, after the order was received on 27 August 1995 from the Director of Service 
46, through the Head of Division 1, to keep watch on HI in the town of [...], on 
28 August 1995 a Mercedes-Benz [...] was parked on Nová Pezinská Street, from 
which SIS officers observed HI’s house, reported by radio that he had left the 
house and followed his movements in motor vehicles, whilst reporting on the 
progress of the surveillance by mobile phone to the Head of Division 1, defendant 
EF.  
On 31 August 1995, [IJ] carried out tasks as part of the abduction plan, by 
following HI in a private Toyota motor vehicle [...], after HI had left his house at 
10.30 in a private motor vehicle [...] heading in the direction of Bratislava, [Or. 9] 
and then, after arresting him at gunpoint on national road II/502, he blocked the 
approach road in conjunction with other vehicles from the surveillance unit.  
Defendant PR, in his capacity as an SIS officer, under an order from the Director 
of the SIS, defendant AB, organised over an unspecified number of days in 
August 1995 a group which included defendant ST, defendant UV, defendant WZ 
and defendant BC, and then assumed a coordinating role between the organisers 
of the abduction and the members of that group, together with whom on 
29 August 1995, in the [...] car park in Bratislava, he picked up private motor 
vehicles belonging to the SIS, in which during the next few days he followed HI’s 
movements in the towns of [...] with the intention of arresting him and handing 
him over to other SIS officers, who were to drive him into the Republic of 
Austria.  
AB AND OTHERS 
 
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On 31 August 1995, at 10.30, after learning, as a result of information received 
from an SIS officer in the surveillance Mercedes-Benz [...], that HI had left his 
house heading in the direction of Bratislava, they joined the convoy of SIS private 
motor vehicles that were following HI. At 10.47, on national road II/502 [...], they 
stopped HI’s private motor vehicle, blocking it in front with a Seat Toledo motor 
vehicle [...] and at the side with a Seat Ibiza [...].  
At gunpoint, they requested HI to get out of the car and when he failed to do so 
they removed him by force and, although he put up some resistance, they put him 
into the back seat of the Seat Toledo. They placed a blue bag over his head and 
handcuffed him, and then seized his private Mercedes-Benz motor vehicle [...]. 
Afterwards, while they were travelling in the direction of Vajnory, HI attempted 
to jump out of the vehicle; they punched him in the face, applied electric shocks to 
his genitals using a taser and forced him to drink two bottles of whiskey, leaving 
him in a state of inebriation.  
Defendant PR informed the Director of Unit 2 of the SIS by mobile phone how 
the operation had gone, and the latter passed that information on to defendant [...] 
AB. HI was taken to Bratislava via the [...] road and was handed over to other SIS 
officers.  
Defendant GH, an SIS officer appointed to the post of Head of the Inspection 
Division of Section 2 of the SIS, within the framework of the vertical chain of 
command, carried out the instructions of the Director of the SIS, defendant AB, 
and of the Director of Section 2 of the SIS during the surveillance of XY although 
he knew that the Director of the SIS or a person authorised by the latter under 
Article 11(2) of Law 46/1993 had not taken the decision to use operational means 
of intelligence-gathering; and, on one occasion, he had accompanied that person 
from Bratislava to Levoča and back and had concealed his crossing of the Austria-
Hungary border without the appropriate document; and on 30 and 31 August 
1995, he had arranged for a border crossing without incident to be made at the 
border posts of Bratislava-Berg and Jarovce-Kittsee by defendants LM and NO, 
who drove the victim HI into Austria using the private Mercedes-Benz motor 
vehicle [...].  
Defendant LM and defendant NO, officers of the Special Operations Service of 
Section 2 of the SIS, within the framework of the vertical chain of command, 
carried out the instructions of the Director of Section 2 of the SIS in that, on 
30 August 1995 in Bratislava-Petržalka [...] they waited for HI’s private motor 
vehicle, which they were due to drive into Austria. Since the plan was not carried 
out that day, on 31 August at 14.00, in the same place, they took over from 
defendant PR and defendant WZ the private Mercedes-Benz motor vehicle 
[Or. 10] [...], with HI lying unconscious on the back seat, and drove it through the 
diplomatic channel at the Petržalka-Berg border crossing. 
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Since the competent official from Austrian passport control was not present at the 
Berg car park, they made a telephone call to the Director of Section 2, who, on the 
order of defendant AB, gave the instruction to take the victim to Hainburg. 
On the instructions of defendant AB, an SIS officer was sent to Austria and 
reported to the Hainburg police station the presence of a vehicle containing a 
person being sought. At 16.30, defendant AB informed ZZ by mobile phone that 
the victim was in a car in Hainburg and at 17.00, on the basis of a telephone call, 
HI was arrested by the Austrian police; the physical violence inflicted by the 
defendants had caused him minor injuries and his journey into Austria followed 
by his detention were in breach of Article 23(4) of the Constitution of the Slovak 
Republic, which states that no citizen can be forced to leave his country, be 
extradited or be surrendered to another State.  
The victim HI suffered loss in connection with his stay in Austria in respect of the 
costs of his legal representation, totalling ATS 478 241.13. 
2. On 6 September 1995, defendant DE, an SIS officer, on the instructions of 
his immediate superior, the Head of Division 1 of Service 46 of the SIS, EF, 
established with a police officer in the municipality of [...], from whom he 
requested official confirmation, that the white Mercedes Benz van [...] was in his 
district between 28 and 31 August 1995. After the police officer refused to comply 
with that request, on 13 September 1995, at approximately 13.00, it was arranged 
for a glazier in Bratislava [...] to produce transparent panes of glass costing 
SKK 2 766 to replace the opaque glass on the Mercedes-Benz 208 D, so that the 
witnesses in the criminal proceedings relating to HI’s abduction to a foreign 
country would not recognise the vehicle as being the one that had been parked on 
the corner of [...] streets opposite house [...], from which SIS officers observed 
HI’s house from 28 to 31 August 1995, although [DE] knew that on 31 August 
1995, during the journey to Bratislava on national road II/502, HI’s Mercedes had 
been stopped and seized by force and driven into Austria, where HI was arrested 
in his car in Hainburg by officers of the Austrian police force; he acted in that way 
with the intention of concealing the fact that SIS officers had committed an 
offence and in order to avoid criminal prosecutions for the individuals involved in 
the criminal offence of abduction.  
2. By order of 14 June 2017, the Okresný súd (District Court) Bratislava III, 
pursuant to Article 23(3) of the Code of Criminal Procedure applicable until 
31 December 2005, joined the abovementioned criminal case with the criminal 
case [...] brought against defendants AB, CD, FG, EF, IJ and JL, who were 
charged with the offence of abuse of power by a public official, in that they 
provided assistance within the meaning of Article 10(1)(c) and Article 158(1)(b) 
and (2)(c) of the Criminal Code applicable until 31 December 2005, which they 
are alleged to have committed in the following circumstances: AB, CD, FG, EF, IJ 
and JL, being officers of a public authority — the Slovenská informačná služba 
(Slovak Intelligence Service) — in breach of its powers as set out in Article 1(2) 
of Law 46/1993, of the duties as set out in Article 2 of Law 46/1993 and of the 
AB AND OTHERS 
 
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obligations of SIS officers within the meaning of Article 7 of Law 46/1993, with 
the intention of concealing the disposal of the Mercedes that had been used during 
July 1995 for the surveillance of the restaurant owner UP in the municipality of 
[...] and during August 1995 for the surveillance of HI [Or. 11] in the town of [...], 
were involved in the infringement in that JF, assigned to Division 1 of Service 46 
of the SIS, made a false statement although he knew that the private motor 
vehicle, Mercedes-Benz 208D [...] belonging to the SIS had not been stolen on the 
night of 18-19 December 1995 during an official journey that he did not make 
with IJ, a statement that provided a basis for unlawful conduct on the part of the 
committee of inquiry and of senior SIS officers; in his statement on the events of 
28 December 1995, CD, the Director of Unit 94 of the SIS, supplied false 
information concerning the operation in Western Slovakia, his involvement at the 
place where the vehicle was stolen and the discovery of the registration plate of 
the Mercedes- Benz 208D; on 26 January 1996, by Order No 6, he set up the Unit 
94 committee of inquiry in order to investigate the damage to the stolen official 
vehicle; FG, appointed Head of Motor Transport of Unit 94, as chairman of the 
committee, did not ensure that a detailed inquiry was conducted into the events 
that had taken place and, together with members of the committee [namely] EF, 
appointed Head of Division 1 of Service 46 of the SIS, and IJ, Head of Team 1 of 
Division 1 of Service 46 of the SIS, did not investigate the circumstances of the 
vehicle theft and, although they knew that the vehicle had not been stolen, they 
confirmed that the data were correct, reduced the value of the vehicle concerned 
and, on 7 February 1996, suggested to the Director of the SIS that the case should 
be suspended pending discovery of the motor vehicle and that after 10 years the 
loss should be charged to the State, which was approved by CD, Director of Unit 
94 of the SIS, AB, Director of the SIS and the statutory representative, in breach 
of Article 3(2) of zákon č. 278/1993 Z.z. o správe majetku štátu v znení noviel 
(Law No 278/1993 on the management of State property, as amended), although 
he knew that the junior SIS officers had not reported the theft of the vehicle to the 
competent police authorities; he did not act in accordance with Article 8(1) of the 
Code of Criminal Procedure, did not take steps to establish whether an offence 
had actually been committed, endorsed the incorrect findings of the committee 
and approved the latter’s proposal and CD’s recommendation, and, by decision of 
12 March 1996, adopted under Article 127(1) of zákon č. 410/1991 Zb. o 
služobnom pomere príslušníkov PZ (Law No 410/1991 on the terms of service of 
police officers), decided to close the case and write off the loss over a period of 
10 years, and, at the end of that period, he authorised charging the loss to the State 
although the law governing the police force did not permit this, thereby causing 
the SIS to incur a loss amounting to SKK 1 454 434.  
3. By order of 29 June 2001 [...], the Okresný súd (District Court) Bratislava III 
suspended prosecution of all the defendants on the ground that they were covered 
by an amnesty decreed by the President of the Government of the Slovak Republic 
of 3 March 1998. The abovementioned order was upheld on 5 June 2002 by the 
judgment of the Krajský súd (Regional Court), Bratislava and acquired the force 
of res judicata.  
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4. The referring court reopened the proceedings as a result of the judgment of the 
Ústavný súd Slovenskej republiky (Constitutional Court, Slovakia; ‘the 
Constitutional Court’) of 31 May 2017 [...], in which that court ruled that 
Resolution of the Národná rada Slovenskej republiky (National Council of the 
Slovak Republic; ‘the National Council of the Slovak Republic’) No 570 of 
5 April 2017 repealing Article V and Article VI of the Decision of the President of 
the Government of the Slovak Republic of 3 March 1998 decreeing an amnesty, 
published under No 55/1998, the Decision of the President of the Government 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 of 
12 December 1997 granting pardon to an accused person [...] were in conformity 
with the Constitution of the Slovak Republic.  
5. After the reopening of the proceedings, the defence made an application to the 
referring court that it stay the proceedings and submit a request for a preliminary 
ruling to the Court of Justice concerning the interpretation of Article 47, 
Article 48(2) and Article 50 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’), and of Framework Decision 2002/584, in conjunction with 
the relevant articles of Directive 2012/13 [Or. 12] (on the right to information in 
criminal proceedings) and of Directive 2016/343 (on the strengthening of certain 
aspects of the presumption of innocence and of the right to be present at the trial 
in criminal proceedings).  
6. That application is based on legal inaccuracies in the national legislation adopted, 
specifically the provisions of Section 6 of the Zákon o Ústavnom súde (Law 
relating to the Constitutional Court) (specifically Articles 48a and 48b), the 
provisions of Ústavný zákon č. 71/2017 (Constitutional Law No 71/2017) and of 
the Uznesenie Národnej rady Slovenskej republiky z 5. apríla 2017 číslo 570 o 
zrušení článku V a článku VI rozhodnutia predsedu vlády Slovenskej republiky z 
3. marca 1998 o amnestii uverejneného pod číslom 55/1998 Z. z., rozhodnutia 
predsedu vlády Slovenskej republiky zo 7. júla 1998 o amnestii uverejneného pod 
číslom 214/1998 Z. z. a rozhodnutia prezidenta Slovenskej republiky v konaní o 
milosť pre obvineného zo dňa 12. decembra 1997 č. k. 3573/96-72-2417 
(Resolution of the National Council of the Slovak Republic No 570 of 5 April 
2017 repealing Article V and Article VI of the Decision of the President of the 
Government of the Slovak Republic of 3 March 1998 decreeing an amnesty, 
published under No 55/1998, the Decision of the President of the Government 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 
pardon to an accused person of 12 December 1997 with the reference 3573/96-72-
2417; ‘the Resolution’). The Resolution in question was intended to revoke the 
amnesties that provided the basis for the adoption of, inter alia, the order 
discontinuing the prosecution of AB and Others, that is to say, the order of the 
Okresný súd (District Court) Bratislava III [...] of 29 June 2001 and the order of 
the Krajský súd (Regional Court), Bratislava [...]. In the case in question, a public 
prosecution had also been brought against ST [...] who was to be the subject of a 
AB AND OTHERS 
 
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national arrest warrant, a European arrest warrant and an international arrest 
warrant.  
7. After examining the documents before it, the referring court, being a national 
court, considers that a decision of the Court of Justice is necessary to enable it to 
give judgment (Article 267, second paragraph, TFEU).  
II. Legal background 
A. EU law 
8. Article 82[(1)] TFEU provides: 
‘Judicial cooperation in criminal matters in the Union shall be based on the 
principle of mutual recognition of judgments and judicial decisions and shall 
include the approximation of the laws and regulations of the Member States in the 
areas referred to in paragraph 2 and in Article 83.  
The European Parliament and the Council, acting in accordance with the ordinary 
legislative procedure, shall adopt measures to:  
(a) lay down rules and procedures for ensuring recognition throughout the Union 
of all forms of judgments and judicial decisions;  
(b) prevent and settle conflicts of jurisdiction between Member States;  
(c) support the training of the judiciary and judicial staff;  
(d) facilitate cooperation between judicial or equivalent authorities of the Member 
States in relation to proceedings in criminal matters and the enforcement of 
decisions. 
9. [Article 82(2) TFEU provides] ‘To the extent necessary to facilitate mutual 
recognition of judgments and judicial decisions and police and judicial 
cooperation in criminal matters having a cross-border dimension, the European 
Parliament and the Council may, by means of directives adopted in accordance 
with the ordinary legislative procedure, establish minimum rules. [Or. 13] 
10. [Paragraph 2 continued] Such rules shall take into account the differences between 
the legal traditions and systems of the Member States.  
They shall concern:  
(a) mutual admissibility of evidence between Member States;  
(b) the rights of individuals in criminal procedure;  
(c) the rights of victims of crime;  
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(d) any other specific aspects of criminal procedure which the Council has identified 
in advance by a decision; for the adoption of such a decision, the Council shall act 
unanimously after obtaining the consent of the European Parliament.  
Adoption of the minimum rules referred to in this paragraph shall not prevent Member 
States from maintaining or introducing a higher level of protection for 
individuals.’  
11. [Article 82(3) TFEU provides] ‘Where a member of the Council considers that a 
draft directive as referred to in paragraph 2 would affect fundamental aspects of 
its criminal justice system, it may request that the draft directive be referred to the 
European Council. In that case, the ordinary legislative procedure shall be 
suspended. After discussion, and in case of a consensus, the European Council 
shall, within four months of this suspension, refer the draft back to the Council, 
which shall terminate the suspension of the ordinary legislative procedure.  
Within the same timeframe, in case of disagreement, and if at least nine Member States 
wish to establish enhanced cooperation on the basis of the draft directive 
concerned, they shall notify the European Parliament, the Council and the 
Commission accordingly. In such a case, the authorisation to proceed with 
enhanced cooperation referred to in Article 20(2) of the Treaty on European 
Union and Article 329(1) of this Treaty shall be deemed to be granted and the 
provisions on enhanced cooperation shall apply’.  
12. Article 47 of the Charter provides: 
‘Everyone whose rights and freedoms guaranteed by the law of the Union are 
violated has the right to an effective remedy before a tribunal in compliance with 
the conditions laid down in this Article.  
Everyone is entitled to a fair and public hearing within a reasonable time by an 
independent and impartial tribunal previously established by law. Everyone shall 
have the possibility of being advised, defended and represented.  
Legal aid shall be made available to those who lack sufficient resources in so far 
as such aid is necessary to ensure effective access to justice.’  
13. Article 48(2) of the Charter provides: 
‘Respect for the rights of the defence of anyone who has been charged shall be 
guaranteed.’ 
14. Article 50 of the Charter provides: 
‘No one shall be liable to be tried or punished again in criminal proceedings for an 
offence for which he or she has already been finally acquitted or convicted within 
the Union in accordance with the law.’ 
AB AND OTHERS 
 
15 
15. Article 1(1) of Framework Decision 2002/584 provides: 
‘The European arrest warrant is a judicial decision issued by a Member State with 
a view to the arrest and surrender by another Member State of a requested person, 
for the purposes of conducting a criminal prosecution or executing a custodial 
sentence or detention order.’ 
16. Article 1(2) of Framework Decision 2002/584 provides: [Or. 14] 
‘Member States shall execute any European arrest warrant on the basis of the 
principle of mutual recognition and in accordance with the provisions of this 
Framework Decision.’  
17. Article 1(3) of Framework Decision 2002/584 provides: 
‘This Framework Decision shall not have the effect of modifying the obligation to 
respect fundamental rights and fundamental legal principles as enshrined in 
Article 6 of the Treaty on European Union.’ 
18. Article 3 of Framework Decision, entitled ‘Grounds for mandatory non-execution 
of the European arrest warrant’, provides: 
‘The judicial authority of the Member State of execution (hereinafter “executing 
judicial authority”) shall refuse to execute the European arrest warrant in the 
following cases: 
1. if the offence on which the arrest warrant is based is covered by amnesty in 
the executing Member State, where that State had jurisdiction to prosecute the 
offence under its own criminal law; 
2. if the executing judicial authority is informed that the requested person has 
been finally judged by a Member State in respect of the same acts provided that, 
where there has been sentence, the sentence has been served or is currently being 
served or may no longer be executed under the law of the sentencing Member 
State; 
3. if the person who is the subject of the European arrest warrant may not, 
owing to his age, be held criminally responsible for the acts on which the arrest 
warrant is based under the law of the executing State.’ 
19. Article 7 of Directive 2012/13 provides: 
‘1. Where a person is arrested and detained at any stage of the criminal 
proceedings, Member States shall ensure that documents related to the specific 
case in the possession of the competent authorities which are essential to 
challenging effectively, in accordance with national law, the lawfulness of the 
arrest or detention, are made available to arrested persons or to their lawyers. 
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2. Member States shall ensure that access is granted at least to all material 
evidence in the possession of the competent authorities, whether for or against 
suspects or accused persons, to those persons or their lawyers in order to 
safeguard the fairness of the proceedings and to prepare the defence. 
3. Without prejudice to paragraph 1, access to the materials referred to in 
paragraph 2 shall be granted in due time to allow the effective exercise of the 
rights of the defence and at the latest upon submission of the merits of the 
accusation to the judgment of a court. Where further material evidence comes into 
the possession of the competent authorities, access shall be granted to it in due 
time to allow for it to be considered. 
4. By way of derogation from paragraphs 2 and 3, provided that this does not 
prejudice the right to a fair trial, access to certain materials may be refused if such 
access may lead to a serious threat to the life or the fundamental rights of another 
person or if such refusal is strictly necessary to safeguard an important public 
interest, such as in cases where access could prejudice an ongoing investigation or 
seriously harm the national security of the Member State in which the criminal 
proceedings are instituted. Member States shall ensure that, in accordance with 
procedures in national law, a decision to refuse access to certain materials in 
accordance with this paragraph is taken by a judicial authority or is at least subject 
to judicial review. 
5. Access, as referred to in this Article, shall be provided [Or. 15] free of 
charge.’  
20. Article 8(2) of Directive 2012/13 provides: 
‘Member States shall ensure that suspects or accused persons or their lawyers 
have the right to challenge, in accordance with procedures in national law, the 
possible failure or refusal of the competent authorities to provide information in 
accordance with this Directive.’  
21. Article 8(1) of Directive 2016/343 provides: 
‘Member States shall ensure that suspects and accused persons have the right to be 
present at their trial.’ 
22. Article 9 of Directive 2016/343 provides: 
‘Member States shall ensure that, where suspects or accused persons were not 
present at their trial and the conditions laid down in Article 8(2) were not met, 
they have the right to a new trial, or to another legal remedy, which allows a fresh 
determination of the merits of the case, including examination of new evidence, 
and which may lead to the original decision being reversed. In that regard, 
Member States shall ensure that those suspects and accused persons have the right 
to be present, to participate effectively, in accordance with procedures under 
national law, and to exercise the rights of the defence.’ 
AB AND OTHERS 
 
17 
23. Article 10(1) of Directive 2016/343 provides: 
‘Member States shall ensure that suspects and accused persons have an effective 
remedy if their rights under this Directive are breached.’  
24. Article 14(1) of Directive 2016/343 provides: 
‘Member States shall bring into force the laws, regulations and administrative 
provisions necessary to comply with this Directive by 1 April 2018. They shall 
immediately inform the Commission thereof.’ 
B. Slovak law 
25. Under Article 86(i) (in force since 4 April 2017) of the Constitution of the Slovak 
Republic, the Národná rada Slovenskej republiky (National Council of the Slovak 
Republic; ‘the National Council of the Slovak Republic’) 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.’ 
26. Article 129a of the Constitution of the Slovak Republic (in force since 4 April 
2017) provides that the Ústavný súd Slovenskej republiky (Constitutional Court, 
Slovak Republic; ‘the Constitutional Court’) has the following power: 
‘The Constitutional Court shall rule on the constitutionality of a resolution of the 
National Council 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.’ [Or. 16] 
27. Article 154f of the Constitution of the Slovak Republic (in force since 4 April 
2017) 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 President of the Government of 
the Slovak Republic of 3 March 1998 decreeing an amnesty, published under 
No 55/1998, the Decision of the President of the Government 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 of 12 December 1997 
granting pardon to an accused person, No [...].  
(2) Revocation of amnesties and pardons under paragraph 1 
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(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.’  
28. Articles 48a and 48b of Section 6 of the Zákon o ústavnom súde (Law on the 
Constitutional Court) (in force since 4 April 2017) govern as follows proceedings 
relating to the constitutionality of a resolution of the National Council of the 
Slovak Republic revoking individual pardons or amnesties: 
‘Article 48a 
The provisions of Articles 19 to 41b shall apply mutatis mutandis to proceedings 
relating to review of a resolution of the National Council of the Slovak Republic, 
save where Article 48b provides otherwise.  
Article 48b 
(1) The Constitutional Court shall of its own motion institute the main 
proceedings under Article 129a of the Constitution, with the proceedings 
commencing on the day of the publication in the Zbierka zákonov (Official 
Journal) of the resolution adopted by the National Council of the Slovak Republic 
under Article 86(i) of the Constitution.  
(2) The National Council of the Slovak Republic shall be the only party to the 
proceedings.  
(3) The Government of the Slovak Republic, represented by the Minister for 
Justice of the Slovak Republic, shall be permitted to intervene in the proceedings 
if they relate to a resolution revoking an amnesty, or the President of the Slovak 
Republic if the proceedings relate to a resolution revoking an individual pardon.  
(4) Before a decision is taken on the merits of the case under the present 
Section, the President of the Constitutional Court shall seek 
(a) the opinion of the National Council of the Slovak Republic, together 
with the record of the discussion that took place at its meeting concerning 
the resolution adopted by the National Council of the Slovak Republic under 
Article 86(i) of the Constitution, 
(b) the opinion of the President of the Slovak Republic, and 
AB AND OTHERS 
 
19 
(c) the opinion of the Government of the Slovak Republic; the opinion on 
behalf of the Government [Or. 17] of the Slovak Republic shall be delivered 
by the Minister for Justice of the Slovak Republic.  
(5) The plenary session shall rule on the substance of the case in the form of a 
judgment. The judgment shall be notified to the National Council of the Slovak 
Republic and the Government of the Slovak Republic in the case of an amnesty, 
and to the President in the case of an individual pardon. The President of the 
Constitutional Court may decide to notify the judgment to other persons also.  
(6) The Constitutional Court shall rule on the constitutionality of a resolution, or 
of any part of a resolution, of the National Council 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 National Council of the Slovak 
Republic revoking an amnesty or an individual pardon.’  
29. Article 1(1) of zákon č. 15[4]/2010 Z.z. o európskom zatýkacom rozkaze v znení 
neskorších predpisov (Law No 153/2010 on the European arrest warrant, as 
amended; ‘Law 153/2010’) provides: 
‘This Law governs the conduct of the Slovak authorities in the event of the 
surrender of persons between Member States of the European Union pursuant to a 
European arrest warrant, and the relevant proceedings.’ 
30. Article 5(1) to (3) of Law 15[4]//2010 provides: 
‘(1) Where there is reason to suppose that the accused person is, or may be, 
living in another Member State and if it is necessary to search for him, the 
President of the Chamber, or the judge of the competent court, shall issue a 
European arrest warrant against him. In the context of an investigation, the 
European arrest warrant shall be issued by the investigating judge at the request of 
the State prosecutor.  
(2) A European arrest warrant within the meaning of paragraph 1 may be issued 
if the accused person is the subject, in respect of the same acts, of an arrest 
warrant, an international arrest warrant, or of a final and enforceable decision 
imposing a custodial sentence.  
(3) The court having jurisdiction shall not issue a European arrest warrant where 
it is apparent, before that warrant is issued, that surrender by another country 
would cause the person sought disproportionate harm in relation to the 
significance of the criminal proceedings or the consequences of the offence.’ 
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31. Article 23(1)(a) and (b) of Law 15[4]//2010 provides: 
‘(1) Execution of a European arrest warrant shall be refused where 
(a) the offence in respect of which the European arrest warrant has been issued 
is covered by an amnesty granted in the Slovak Republic and the Slovak 
legal order governs the power of the Slovak authorities to prosecute that 
offence, 
(b) the executing judicial authority is informed that a case that has been 
conducted in a Member State against the person sought for the same offence 
has been finally closed by a sentence that has been served or is currently 
being served or may no longer be executed under the legal provisions of the 
sentencing Member State …’ [Or. 18]  
32. Under Article 188(1) of the Code of Criminal Procedure applicable until 
31 December 2005, after a preliminary examination of the charge, the court is to 
(a) transfer the case to the court having jurisdiction if it does not have 
jurisdiction itself to hear the case, 
(b) transfer the case to another authority in the circumstances referred to in 
Article 171(1), 
(c) discontinue the prosecution in the circumstances referred to in 
Article 172(1), 
(d) suspend the proceedings in the circumstances referred to in Article 173(1)(a) 
to (e), or under Article 224(6) or (7), 
(e) refer the case to the public prosecutor for further investigation where this is 
necessary in order to eliminate serious procedural flaws in the investigation or to 
clarify basic factual circumstances where otherwise it would not be possible to 
give a ruling in the main proceedings and if further measures of investigation in 
the judicial proceedings would encounter significant difficulties or would clearly 
affect the speed of the proceedings, 
(f) discontinue prosecution under certain conditions in pursuance of 
Article 307, or rule on the approval of conciliation in pursuance of Article 309, or 
(g) refer the case to be heard by a single judge if the latter has jurisdiction by 
virtue of Article 314a(1); the single judge shall be bound by that decision.  
33. Under Article 188(2) of the Code of Criminal Procedure applicable until 
31 December 2005, after a preliminary examination of the charge, the court may 
also discontinue the prosecution in the circumstances referred to in Article 172(2) 
or (3).  
AB AND OTHERS 
 
21 
34. Under Article 188(3) of the Code of Criminal Procedure applicable until 
31 December 2005, after a preliminary examination of the charge, the court may 
also suspend the prosecution in the circumstances referred to in Article 173(2).  
35. Under Article 188(4) of the Code of Criminal Procedure applicable until 
31 December 2005, the public prosecutor and the accused person may bring an 
appeal against a decision adopted under paragraph 1(a) to (f), or under 
paragraphs 2 or 3, an appeal which shall have suspensory effect besides 
suspending the prosecution.  
36. Under Article 224(1) of the Code of Criminal Procedure applicable until 
31 December 2005, the court is to suspend the prosecution if it establishes during 
the main hearing that one of the circumstances provided for in Article 173(1)(b) to 
(e) has arisen.  
37. Under Article 224(2) of the Code of Criminal Procedure applicable until 
31 December 2005, the court is to suspend the prosecution even where it is not 
possible to serve notice on the defendant that he is required to attend the main 
proceedings.  
38. Under Article 224(3) of the Code of Criminal Procedure applicable until 
31 December 2005, the court may suspend the prosecution if it establishes during 
the main hearing that the circumstances provided for in Article 173(2) have arisen.  
39. Under Article 224(4) of the Code of Criminal Procedure applicable until 
31 December 2005, if the ground for suspension no longer exists, the court is to 
resume the proceedings. [Or. 19] 
40. Under Article 224(5) of the Code of Criminal Procedure applicable until 
31 December 2005, the public prosecutor may lodge an appeal against the court’s 
decision suspending the prosecution or rejecting the application to continue the 
prosecution.  
41. Under Article 224(6) of the Code of Criminal Procedure applicable until 
31 December 2005, the court is to suspend the prosecution if it considers that a 
general, lower-ranking legal provision, the application of which in the criminal 
case in question is decisive in order to rule on the matter of guilt and the 
appropriate penalty, conflicts with a general, higher-ranking legal provision or an 
international treaty, and is to bring proceedings before the Constitutional Court. 
The judgment of the Constitutional Court is binding on that court and on other 
ordinary courts.  
42. Under Article 224(7) of the Code of Criminal Procedure applicable until 
31 December 2005, the court is to suspend the prosecution if it submits a request 
for a preliminary ruling to the Court of Justice [of the European Union].  
43. Under Article 564(1) of the Code of Criminal Procedure applicable with effect 
from 1 January 2006, prosecutions begun before the entry into force of the present 
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law and acts done in the context of those prosecutions are to have the same effects 
as prosecutions begun and acts done under the present law.  
44. Under Article 564(3) of the Code of Criminal Procedure applicable with effect 
from 1 January 2006, in cases in which reference to a district court was made 
before the entry into force of the present law, the district court is to conduct the 
proceedings under the provisions applicable up until that time. Ordinary appeal 
proceedings against such a decision are to be conducted by the regional court 
under the provisions applicable up until that time. The same procedure is to be 
followed where a court which lacks jurisdiction has transferred the case to a 
district court for the purposes of conducting the proceedings.  
45. Since the order referring the abovementioned person for trial was made on 
27 November 2000, the district court must, pursuant to the statutory amendment, 
proceed in accordance with the provisions of Code of Criminal Procedure 
No 141/1961 that was in force until 31 December 2005.  
III. Facts 
46. ST and others, including AB, were the subject of criminal prosecutions finally 
closed by the decision of Okresný súd (District Court) Bratislava III of 29 June 
2001, in Case 5T 119/00, which has acquired the force of res judicata and is 
enforceable. According to Slovak law, it is a final decision, which is a decision on 
the substance and which has the effects of a judgment of acquittal. The grounds 
for the order discontinuing the prosecutions included the amnesty granted on 
3 March [1998] by the President of the Government of the Slovak Republic 
representing the President of the Slovak Republic.  
47. The main consequence of the amendments adopted in 2017 — by Constitutional 
Law No 71/2017 and the amendment of the Law on the Constitutional Court (Law 
No 72/2017) — was the judgment of the Constitutional Court [...] of 31 May 
2017, which stated as follows: 
‘Resolution of the Národná rada Slovenskej republiky (National Council of the 
Slovak Republic) No 570 of 5 April 2017 repealing Article V and Article VI of 
the Decision of the President of the Government of the Slovak Republic of 
3 March 1998 decreeing an amnesty, published under No 55/1998, the Decision of 
the President of the Government 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 pardon to an accused person of 12 December 1997 
[Or. 20] [...] is in conformity with the Constitution of the Slovak Republic.’ 
48. By reason of those new legislative amendments it was necessary to annul also the 
final order discontinuing the prosecution of ST and Others (including AB).  
49. The circumstances of the present case justify issuing a national arrest warrant and 
also a European arrest warrant. In the present case, the referring court, at the 
AB AND OTHERS 
 
23 
request of the Krajská prokuratúra (Regional Prosecutor’s Office), Bratislava, 
issued an international arrest warrant, since, according to information reported in 
the media (to which the public prosecutor referred in his request for an 
international arrest warrant), ST may be in the Republic of Mali. Since the 
referring court has no relevant details as to where ST is currently living, and it 
cannot be ruled out that ST is, or will be, also in the territory of a Member State of 
the European Union, the referring court intends to issue a European arrest warrant 
also. However, before issuing such a warrant it is necessary, in the light of the 
case-law of the Court of Justice, to issue a national arrest warrant in addition, as 
otherwise the European arrest warrant will not be valid (see, for example, 
judgment of 1 June 2016, Bob-Dogi, C-241/15, EU:C:2016:385).  
50. Since the referring court is uncertain as to whether the ne bis in idem principle 
precludes the issuing of a European arrest warrant, it requests an interpretation 
from the Court of Justice.  
IV. Legal assessment 
A. Applicability of the Charter of Fundamental Rights of the European 
Union 
51. The Charter is applicable in the present case. See in that regard the considerations 
put forward by Advocate General Kokott [in point 29] of the Opinion delivered on 
30 March 2017 in Case C-73/16, Puškár: 
‘… 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. 1 As the 
judgment in Åkerberg Fransson in particular has established, the Charter is 
applicable to penalties in the area of taxation law, in so far as it relates to fiscal 
provisions of EU law. 2 Particular attention must be given in this case to VAT and 
excise duties. But specific questions of direct taxation are also subject to EU law, 
as in the area of specific harmonisation measures 3 or when fundamental freedoms 
are restricted. 4 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 of the Convention for the Protection of Human Rights and Fundamental 
Freedoms, signed in Rome on 4 November 1950 (“the ECHR”).  
 
1 Judgments of 26 February 2013, Åkerberg Fransson (C-617/10, EU:C:2013:105, paragraph 19), 
and of 17 December 2015, WebMindLicenses (C-419/14, EU:C:2015:832, paragraph 66). 
2 Judgment of 26 February 2013, Åkerberg Fransson (C-617/10, EU:C:2013:105, paragraph 27). 
3 See, inter alia, judgment of 22 October 2013, Sabou (C-276/12, EU:C:2013:678, paragraph 23 
et seq.). 
4 Judgment of 11 June 2015, Berlington Hungary and Others (C-98/14, EU:C:2015:386, 
paragraph 74 and the case-law cited). 
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52. [Point 30 of the abovementioned Opinion] For these proceedings, it follows that 
the use of the list for the purposes of tax collection is subject to the Data 
Protection Directive and the Charter, while only the Charter is applicable in the 
field of [Or. 21] criminal law, in so far as it involves questions determined by EU 
law.’  
53. Article 51, which defines the scope of the Charter, states in paragraph 1 that the 
provisions of the Charter ‘are addressed to the Member States only when they are 
implementing EU law’, and in paragraph 2 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). 
54. There can be no doubt that EU law applies in the present case since Framework 
Decision 2002/584 applies in this case.  
55. In that regard, it should be noted that the Framework Decision, by the 
establishment of a simplified and more effective system for the surrender of 
persons convicted or suspected of having infringed criminal law, facilitates and 
accelerates judicial cooperation with a view to contributing to the objective set for 
the European Union to become an area of freedom, security and justice, founded 
on the high level of confidence which should exist between the Member States, in 
accordance with the principle of mutual recognition (see, to that effect, judgments 
of 26 February 2013, Melloni, C-399/11, EU:C:2013:107, paragraphs 36 and 37; 
and of 5 April 2016, Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU, 
EU:C:2016:198, paragraphs 75 and 76). 
56. Also applicable are the Charter and Directive 2012/13 (on the right to information 
in criminal proceedings) and Directive 2016/343 (on the strengthening of certain 
aspects of the presumption of innocence and of the right to be present at the trial 
in criminal proceedings). 
B. First question 
57. By its first question, the referring court seeks an interpretation of whether the ne 
bis in idem principle precludes [the issuance] of a European arrest warrant in the 
present case.  
58. First, the referring court observes that, although it would appear at first sight that 
the question raised should have been referred by the executing court, and not by 
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the court of the issuing State, which would indicate a hypothetical question, that is 
not the case.  
59. A European arrest warrant (EAW) must always be in proportion to its objective. 
That is so also where the circumstances of the case come within Article 2(1) de la 
Framework Decision 2002/584. In view of the serious implications that execution 
of an EAW has for the freedom of the requested person and the restriction of 
freedom of movement, when deciding whether or not an EAW is to be issued, the 
issuing Member State should weigh up the need to issue it and therefore assess 
also any potential obstacles to the future execution of the EAW. The above 
considerations are also clear from [Section 2.4, fourth paragraph of] the 
Commission Notice entitled ‘Handbook on how to issue and execute a European 
arrest warrant’ (OJ 2017 C 335/1): ‘Furthermore, issuing judicial authorities 
should consider whether other judicial cooperation measures could be used instead 
of issuing an EAW. Other Union legal instruments on judicial cooperation in 
criminal matters provide for other measures that in many situations, are effective 
but less coercive (see Section 2.5).’ [Or. 22] 
60. It is apparent from the case-law of the Court of Justice that one of the checking 
mechanisms when an EAW is issued is the requirement to issue a national arrest 
warrant (judgment of 1 June 2016, Bob-Dogi, C-241/15, EU:C:2016:385). 
Therefore, if a national court issues an EAW without issuing a national arrest 
warrant, the EAW is not valid and cannot be executed.  
61. As the Court of Justice noted in the judgment cited above, the EAW system 
comprises a dual level of protection for procedural rights and fundamental rights, 
which must apply to the requested person: the judicial protection provided at the 
first level, at which a national judicial decision is adopted, and the protection 
afforded at the second level, at which a European arrest warrant is issued. That 
dual level of judicial protection is lacking in a situation in which, prior to the issue 
of an EAW, no decision has been taken by a national judicial authority on the 
basis of which the EAW could have been executed.  
62. The crux of the question referred lies in whether a final decision putting an end to 
a criminal prosecution (or a judgment of acquittal) is always covered by the ne bis 
in idem principle where such a decision has been taken on the basis of an amnesty 
revoked by a legislative authority after the decision has acquired the force of res 
judicata and the national legal order provides that the revocation of such an 
amnesty entails the annulment of decisions of public authorities where they have 
been adopted and substantiated on the basis of the revoked amnesty and without a 
specific court judgment or judicial proceedings.  
63. The substance of the case therefore concerns whether, in the present case, it is 
possible for the fundamental right not to be tried or punished twice, as guaranteed 
by the Charter, to be undermined as a result of a national mechanism annulling 
final decisions in criminal matters adopted directly by a legislative body without 
any court judgment and without any involvement of the individuals concerned. In 
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26  
other words, the question is whether the fact that a legislative body ‘is associated’ 
with the decision on guilt and sentencing in a situation where that mechanism is 
compatible with the domestic legal order complies with EU law. Or whether, in 
the light of EU law, a national court is required to respect the revocation of an 
amnesty which, although it complies with the national legal order, does not 
comply with EU law.  
C. Second question  
64. By its second question, the referring court asks the Court of Justice whether 
Directive [2012/13] applies also to particular proceedings, the subject matter of 
which is the revocation of an amnesty, in so far as they are ‘a national mechanism’ 
for revoking an amnesty.  
65. Article 2 [of Directive 2012/13], entitled ‘Scope’, provides: ‘This Directive 
applies from the time persons are made aware by the competent authorities of a 
Member State that they are suspected or accused of having committed a criminal 
offence until the conclusion of the proceedings, which is understood to mean the 
final determination of the question whether the suspect or accused person has 
committed the criminal offence, including, where applicable, sentencing and the 
resolution of any appeal.’ 
66. Article 3 [of Directive 2012/13], entitled ‘Right to information about rights’, 
provides, in paragraph 1([c]): ‘Member States shall ensure that suspects or 
accused persons are provided promptly with information concerning at least the 
following procedural rights, as they apply under national law, in order to allow for 
those rights to be exercised effectively: … the right to be informed of the 
accusation, in accordance with Article 6’. [Or. 23] 
67. Article 6 [of Directive 2012/13], entitled ‘Right to information about the 
accusation’, provides in paragraph 4: ‘Member States shall ensure that suspects or 
accused persons are informed promptly of any changes in the information given in 
accordance with this Article where this is necessary to safeguard the fairness of 
the proceedings’. 
68. Article 7 [of Directive 2012/13], entitled ‘Right of access to the materials of the 
case’, provides in paragraph 1: ‘Where a person is arrested and detained at any 
stage of the criminal proceedings, Member States shall ensure that documents 
related to the specific case in the possession of the competent authorities which 
are essential to challenging effectively, in accordance with national law, the 
lawfulness of the arrest or detention, are made available to arrested persons or to 
their lawyers.’  
69. The directive cited above is based on Article 82 TFEU, which lays down the 
minimum rules that must apply in the European Union; recitals 9, 10 and 11 of 
that directive read as follows: 
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70. ‘Article 82(2) of the Treaty on the Functioning of the European Union provides 
for the establishment of minimum rules applicable in the Member States so as to 
facilitate mutual recognition of judgments and judicial decisions and police and 
judicial cooperation in criminal matters having a cross-border dimension. That 
Article refers to “the rights of individuals in criminal procedure” as one of the 
areas in which minimum rules may be established.’ 
71. ‘Common minimum rules should lead to increased confidence in the criminal 
justice systems of all Member States, which, in turn, should lead to more efficient 
judicial cooperation in a climate of mutual trust. Such common minimum rules 
should be established in the field of information in criminal proceedings.’ 
72. ‘On 30 November 2009, the Council adopted a resolution on a Roadmap for 
strengthening procedural rights of suspected or accused persons in criminal 
proceedings (4) (hereinafter “the Roadmap”). Taking a step-by-step approach, the 
Roadmap called for the adoption of measures regarding the right to translation and 
interpretation (measure A), the right to information on rights and information 
about the charges (measure B), the right to legal advice and legal aid (measure C), 
the right to communication with relatives, employers and consular authorities 
(measure D), and special safeguards for suspects or accused persons who are 
vulnerable (measure E). The Roadmap emphasises that the order of the rights is 
only indicative and thus implies that it may be changed in accordance with 
priorities. The Roadmap is designed to operate as a whole; only when all its 
component parts have been implemented will its benefits be felt in full.’ 
73. That directive guarantees the accused person, at each stage in the criminal 
proceedings, the right to all the information relating to the criminal proceedings in 
so far as it is needed in order to ensure a fair trial, and the right of access to the 
materials of the case, whereas the national law relating to the position of the party 
in the proceedings before the National Council of the Slovak Republic and in the 
proceedings before the Constitutional Court prevents the party from exercising his 
fundamental procedural rights. In that regard, it is appropriate to note the 
particular nature of proceedings concerning the question of the lawfulness of a 
decision revoking an amnesty, which also entails the annulment of an individual 
legal act; in the present case the order discontinuing the criminal prosecution is 
indisputably such a decision. That is why the referring court considers that the 
proceedings revoking the amnesty (before the National Council of the Slovak 
Republic and the Constitutional Court of the Slovak Republic) come within the 
scope of the directive cited above and that those proceedings therefore constitute 
‘a stage of the criminal proceedings’ within the meaning of Directive [2012/13], 
although the national legislation does not guarantee fundamental rights within the 
meaning of that directive. [Or. 24] 
74. In its judgment of 21 October 2015, Frisancho Perea v. Slovakia [...], the 
European Court of Human Rights criticised the proceedings relating to an 
individual constitutional appeal that took place without the persons concerned 
being parties to the proceedings before the Constitutional Court of the Slovak 
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28  
Republic. It was in fact following that judgment that the amendment of zákon č. 
38/1993 Z.z o Ústavnom súde (Law No 38/1993 on the Constitutional Court) was 
adopted, which gave the persons concerned procedural rights similar to those of 
the parties to the proceedings.  
D. Third question  
75. By its third question, the referring court asks the Court of Justice whether 
provisions of domestic law which limit examination by the Constitutional Court 
solely to the question of compliance with domestic law are compatible with the 
fundamental rights guaranteed by the ECHR and with the Charter, but especially 
with the principle of sincere cooperation (resulting from Article 4(3) TEU), it 
being understood that, under that provision, that obligation is equally applicable to 
relations between Member States and the European Union (see Opinion 2/13 of 
the Court of Justice, EU:C:2014:2454, paragraph 202). 
76. Similarly, the referring court is of the view that the ‘national mechanism’ of 
revoking an amnesty may potentially conflict with the principle of proportionality 
and in particular with the principle of effectiveness, which limits the procedural 
autonomy of Member States when adopting domestic legal provisions.  
E. Need for an urgent procedure 
77. Since the case in question concerns a European arrest warrant, the referring court 
asks the Court of Justice to apply Article 107 of the Rules of Procedure and to 
deal with the application under the urgent preliminary ruling procedure. The 
referring court makes reference first of all to Article 17(1) of Framework Decision 
2002/584, which states that ‘a European arrest warrant shall be dealt with and 
executed as a matter of urgency’.  
78. In accordance with the Recommendations of the Court of Justice [to national 
courts and tribunals, in relation to the initiation of preliminary ruling proceedings 
(OJ 2016 C 439, p. 1)], the file of the criminal case pending before the referring 
court will be sent through the Ministry of Foreign and European Affairs of the 
Slovak Republic.  
Okresný súd Bratislava III 
11 May 2020 
[signed]