Opinion of the Advocate General — ECLI:EU:C:2026:16
Date: 2026-01-15
Language of the case: Slovak

summary of the subject matter of the dispute and the relevant facts and 
circumstances established by the national court, or at least a summary of the facts 
upon which the questions referred for a preliminary ruling are based: 
‘On 18 November 2020, an indictment was filed with the Okresný súd Bratislava 
III (Bratislava III District Court) against the accused AC […] on the grounds of 
slander, which is a crime under Section 373(1) and Section 373(2)(c) of the 
Trestný zákon (Criminal Code), and which the accused allegedly committed under 
the following circumstances: 
On the date [anonymised] using the online platform [anonymised] at an 
unspecified location, he published a post entitled [anonymised] – LZ – 
[anonymised], stating that, ‘… [the accused, using colloquial language, maintains 
that the aggrieved person hates him because he claimed in the past that her career 
success could be attributed to the fact that she had engaged in intimate relations 
with the witness SB, and suggested that this witness could be the father of her 
child]’, and then on the same date [anonymised] using the online platform 
[anonymised] at an unspecified location, he published a post entitled 
[anonymised], stating that, ‘… [the accused, using vulgar colloquial language, 
maintains that the aggrieved person and the witness SB had sexual intercourse and 
that this involved specified sexual practices, and that SB made a video recording 
of the intercourse and contacted the accused with an offer to sell this recording to 
him], […] [the accused speculates about the aggrieved person’s purported 
concerns regarding the publication of the alleged video recording, and claims that 
the witness SB has decided not to publish the video recording for the time being]’; 
furthermore, the accused repeatedly referred to the aggrieved person as a 
prostitute and a woman of loose morals in his posts, and these false allegations by 
the accused may cause particular harm to the aggrieved person LZ in her 
professional and private life.’ 
Based on its appraisal of the indictment, the court concluded that the 
aforementioned behaviour by the accused did not constitute a criminal offence, 
and discontinued the criminal proceedings against the accused. In an order dated 
18 April 2023, the Krajský súd v Bratislave (Bratislava Regional Court, Slovakia) 
[…] again set aside the order handed down by the court and obliged the court of 
first instance to hear and decide the case again. 
In an order dated 8 February 2022, by which the court of first instance is bound, 
the Krajský súd v Bratislave (Bratislava Regional Court) […], stated as follows: 
‘The false information of a purely intimate nature, which the accused shared with 
a large number of followers via his post, is – due to its content – liable to cause 
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serious damage to the aggrieved person’s romantic, family and social relations, 
and to undermine trust in her […]. The evidence taken during the pre-trial 
investigation and on which the okresný súd (District Court, Slovakia) also based 
its findings shows beyond doubt that the accused has been using lies about her and 
attacking her, which has placed her in a very unpleasant situation in her relations 
with her family and acquaintances. The intimate relationship between her and SB 
is a figment of the accused’s imagination, and the events to which the accused 
referred in his statements never took place […]. As regards the determination of 
which of the published statements were false, they are undoubtedly statements 
whose veracity was ascertained in the pre-trial investigation based on the evidence 
taken, and which concerned the intimate relationship between the aggrieved 
person and the witness SB, and the sexual practices which the accused clearly 
described in his post.’ 
The section of the statement of grounds cited above will be referred to below as 
the ‘disputed opinion of the court of higher instance’ or the ‘disputed opinion’ 
which, in the national court’s view, fails to observe the presumption of innocence. 
5/ Provisions of national law which may apply in this case, national case-law 
which may potentially be relevant, and EU law: 
5.1 / EU law: 
/ Article 48(1) of the Charter of Fundamental Rights of the European Union reads 
as follows: ‘Everyone who has been charged shall be presumed innocent until 
proved guilty according to law.’ 
5.1.1 / Article 48(2) of the Charter of Fundamental Rights of the European Union 
reads as follows: ‘Respect for the rights of the defence of anyone who has been 
charged shall be guaranteed.’ 
5.1.2 / Article 11 of the Charter of Fundamental Rights of the European Union 
reads as follows: ‘Everyone has the right to freedom of expression. This right shall 
include freedom to hold opinions and to receive and impart information and ideas 
without interference by public authority and regardless of frontiers.’ 
5.1.3 / Article 47 of the Charter of Fundamental Rights of the European Union 
reads as follows: ‘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.’ 
5.1.4 / Article 4(1) of Directive (EU) 2016/343 of the European Parliament and of 
the Council of 9 March 2016 on the strengthening of certain aspects of the 
presumption of innocence and of the right to be present at the trial in criminal 
proceedings (‘Directive 2016/343’) reads as follows: ‘Member States shall take 
the necessary measures to ensure that, for as long as a suspect or an accused 
person has not been proved guilty according to law, public statements made by 
public authorities, and judicial decisions, other than those on guilt, do not refer to 
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that person as being guilty. This shall be without prejudice to acts of the 
prosecution which aim to prove the guilt of the suspect or accused person, and to 
preliminary decisions of a procedural nature, which are taken by judicial or other 
competent authorities and which are based on suspicion or incriminating 
evidence.’ 
5.1.5 / Article [4(2)] of Directive 2016/343 reads as follows: ‘Member States shall 
ensure that appropriate measures are available in the event of a breach of the 
obligation laid down in paragraph 1 of this Article not to refer to suspects or 
accused persons as being guilty, in accordance with this Directive and, in 
particular, with Article 10.’ 
5.1.6 / Article 6(1) of Directive 2016/343 reads as follows: ‘Member States shall 
ensure that the burden of proof for establishing the guilt of suspects and accused 
persons is on the prosecution. This shall be without prejudice to any obligation on 
the judge or the competent court to seek both inculpatory and exculpatory 
evidence, and to the right of the defence to submit evidence in accordance with 
the applicable national law.’ 
5.2 / National law: 
5.2.1 / Article 46(1) of the Ústavy [Slovenskej republiky] (Constitution of the 
Slovak Republic) reads as follows: ‘Any person has a right to a hearing, in 
accordance with a procedure established by law, before an independent and 
impartial court or tribunal or, in certain cases laid down by law, before another 
body of the Slovak Republic.’ 
5.2.2 / Article 48(2) of the Constitution of the Slovak Republic reads as follows: 
‘Everyone has the right to have his or her case tried publicly without undue delay, 
to be present at the proceedings and to comment on any evidence adduced therein. 
The public may be excluded only in cases laid down by law.’ 
5.2.3 / Article 50(2) of the Constitution of the Slovak Republic reads as follows: 
‘Everyone who is being prosecuted shall be presumed innocent until found guilty 
by a final judgement of the court.’ 
5.2.4 / Article 26(1) of the Constitution of the Slovak Republic reads as follows: 
‘Freedom of expression and the right to information shall be guaranteed.’ 
5.2.5 / Article 26(2) of the Constitution of the Slovak Republic reads as follows: 
‘Everyone has the right to express his or her opinion in words, writing, print, 
images or by other means and also to seek, receive and disseminate ideas and 
information freely, irrespective of state borders. No approval process shall be 
required for press publishing. Entrepreneurial activity in the field of radio and 
television broadcasting may be subject to permission from the state. The 
conditions shall be laid down by law.’ 
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5.2.6 / Paragraph 373(1) and Section 373(2)(c) of the Trestný zakon (Criminal 
Code), which define the criminal offence of slander, read as follows: 
‘(1) Whoever communicates false information about another person which is 
capable of considerably damaging the respect of fellow citizens for such a person, 
their career and business, their family relations, or which causes them other 
grievous harm, shall be punished by a prison sentence of up to two years. 
(2) A prison sentence of one to five years shall be imposed upon an offender if 
they commit an act referred to in (1)(c) publicly.’ 
5.2.7 / Paragraph 2(4) of the Trestný poriadok (Code of Criminal Procedure) reads 
as follows: ‘Everyone who is being prosecuted shall be presumed innocent until 
found guilty by a final judgement of the court.’ 
5.2.8 / Paragraph 2(7) of the Trestný poriadok (Code of Criminal Procedure) reads 
as follows: ‘Everyone has the right to a fair hearing of his or her criminal case by 
an independent and impartial tribunal in reasonable time, to be present at the 
proceedings and to have an opportunity to comment on any evidence adduced 
therein, unless this Act provides otherwise.’ 
5.2.9 / Paragraph 2(9) of the Trestný poriadok (Code of Criminal Procedure) reads 
as follows: ‘Every person subject to criminal prosecution shall have the right of 
defence.’ 
5.2.10 / Paragraph 327(1) of the Trestný poriadok (Code of Criminal Procedure) 
reads as follows: ‘The court to which the matter was returned for a new hearing 
and decision shall be bound by the legal opinion which the court of appeal 
pronounced in its ruling, and shall be obliged to carry out the actions and adduce 
the evidence ordered by the court of appeal.’ 
6/. Reasons why the national court decided to refer the question concerning the 
interpretation or significance of the specified provisions of EU law, and the links 
identified by the national court between these provisions and the legislation 
applicable in the national proceedings. 
6.1 / In the case under examination, the national court discontinued the criminal 
proceedings because it took the position that the act did not qualify as a criminal 
offence. The Krajský súd v Bratislave (Bratislava Regional Court) set aside the 
order handed down by the court of first instance that had been appealed against; in 
the statement of grounds for its ruling, it set out the disputed opinion, which is 
binding on the court of first instance. The defence however alleged that in setting 
out the disputed opinion, the Regional Court had failed to observe the 
presumption of innocence, and on these grounds the court of first instance should 
not respect the opinion of the [higher court], even though it is obliged to do so by 
national legislation. The defence argument is based first and foremost on the 
principle of the primacy and effectiveness of EU law. 
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6.2 / In a submission dated 14 July 2023, the defence counsel stated that, 
‘9/ It follows undeniably from the relevant case-law of the Court that the scope of 
application of Directive 2016/343 also covers an assessment of whether the 
appraisal carried out by the court with which the appeal was lodged, as 
outlined in the relevant ruling handed down by this court, infringed the 
presumption of the accused’s innocence. This appraisal may also be carried out 
by the Court on the basis of a request made by the court of first instance. 
10/ The accused holds the view that the court of higher instance infringed his right 
to the presumption of innocence, since it unambiguously referred to him as guilty 
in the relevant statement of grounds. The only conclusion that could be drawn 
from that statement of grounds was that an act had been committed, that the 
accused had committed it and that this act was clearly unlawful. The actions taken 
by the court with which the appeal was lodged were unnecessary, since that court 
could have limited itself to stating that the court [of first instance] was obliged to 
take evidence at the main hearing and to decide on the case based on the evidence 
taken. Furthermore, in the case at hand the court of higher instance was not 
obliged to assess whether it was valid to suspect that an offence had been 
committed, as would be the case when ruling on a pre-trial detention. This section 
of the statement of grounds therefore went beyond what was necessary, and the 
principle of proportionality – which is a fundamental principle of EU law – was 
thus also infringed. 
11/ If the court of first instance were to reach the conclusion, either alone or with 
the Court’s assistance, that the court of higher instance had not observed the 
presumption of innocence, the accused considers that, having regard to the 
principle of the primacy and effectiveness of EU law, the court of first instance 
would be obliged to disregard the findings of fact and law contained in the ruling 
handed down by the court with which the appeal was lodged. The effectiveness of 
EU law would otherwise be undermined. 
12/ This right of the national court to disregard a legally binding opinion set out 
by courts of higher instance has furthermore been consistently confirmed in the 
Court’s case-law, starting from the judgment of 5 October 2010, Elchinov, 
C-173/09, ECLI:EU:C:2010:581 […] [reference to the literature in which the 
relevant ruling is discussed]. 
13/ The court of higher instance therefore misinterpreted EU law. In addition to 
Article 48(1) of the Charter of Fundamental Rights of the European Union, which 
guarantees the right to respect for the presumption of innocence, and Article 48(2) 
of the Charter of Fundamental Rights of the European Union, which guarantees 
respect for the rights of the defence, the court of higher instance also infringed 
Article 4(1) and Article 6(1) of Directive 2016/343 […]. 
14/ Article 6(1) of Directive 2016/343, which clearly states that the burden of 
proof is on the prosecution, was thus also infringed (the ruling handed down by 
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the court of higher instance removed the burden of proof from the prosecution in 
the criminal proceedings). 
15/ Rejection of the binding nature of the legal opinion set out by the court of 
higher instance would allow the court of first instance to decide on the case at a 
main hearing and potentially issue an identical order again for the proceedings to 
be discontinued, while at the same time recusing the judges of the court of higher 
instance on the grounds of their lack of impartiality given that those judges had 
failed to observe the presumption of innocence. 
17/ It follows from the above that it is for the national court to refer the matter 
to the Court for a preliminary ruling. If the court of higher instance were to 
deem this reference irrelevant, however, the referring court would be entitled 
to disregard this decision by the court of higher instance. Slovakian judicial 
authorities have also confirmed that the national court holds this right. In an 
order handed down on 11 February 2020, file ref. 2 Tos 116/2019, for example, 
the Krajský súd v Bratislave (Bratislava Regional Court) ruled as follows: ‘It 
follows indubitably from the settled case-law of the Court that in cases involving 
the possibility of a court with which an appeal is lodged revising an order by a 
court of first instance by means of which the latter court referred the matter to the 
Court, and ruling that said court must hear and decide on the case again, the effect 
of this ruling by the court of higher instance, i.e. the effect of conducting the 
proceedings again, cannot curtail the right of the court which made the reference 
to refer the matter to the Court for a preliminary ruling. The court of higher 
instance cannot therefore prohibit the court of first instance from referring the 
matter to the Court of Justice for a preliminary ruling, even if it regards said 
reference as redundant (for example because the Court of Justice is not competent 
to answer the questions referred, because the Court’s case-law might potentially 
contain an answer to the questions referred, and so on); if it nevertheless hands 
down a ruling prohibiting such a reference, the court of first instance would not be 
bound by it, and would be permitted to disregard it (in the same way as any 
guidance provided by the court of higher instance regarding the disposal of a case 
on the merits)’.[…] 
18/ As regards the recent case-law of the Court of Justice, consideration should be 
given to the judgment of 23 November 2021, IS (Illegality of the order for 
reference), C-564/19, ECLI:EU:C:2021:949, and more specifically to 
paragraphs 1 and 2 of the operative part of this judgment: 
‘1. Article 267 TFEU must be interpreted as precluding the supreme court of a 
Member State from declaring, following an appeal in the interests of the law, that 
a request for a preliminary ruling which has been submitted to the Court under 
Article 267 TFEU by a lower court is unlawful on the ground that the questions 
referred are not relevant and necessary for the resolution of the dispute in the main 
proceedings, without, however, altering the legal effects of the decision containing 
that request. The principle of the primacy of EU law requires that lower court 
to disregard such a decision of the national supreme court. 
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2. Article 267 TFEU must be interpreted as precluding disciplinary proceedings 
from being brought against a national judge on the ground that he or she has made 
a reference for a preliminary ruling to the Court of Justice under that provision.’ 
[…] 
6.3 / The national court will therefore have to address the question of whether 
the disputed opinion set out by the court of higher instance infringed the 
presumption of innocence. If so, it will then need to determine whether it is 
obliged to ignore this opinion in keeping with the principle of the primacy and 
effectiveness of EU law. 
/ The crux of the first question is therefore whether the Krajský súd v Bratislave 
(Bratislava Regional Court), by setting out this disputed opinion, infringed the 
right to [non-infringement of] the presumption of innocence. In particular, it will 
be necessary to assess in this connection whether the right of defence was 
infringed, since the disputed opinion was set out without the accused being given 
an opportunity to comment on it. 
6.1 / The crux of the second question involves assessing whether the actions 
performed by the court of high instance were proportionate, particularly given 
that – in accordance with national practice – these actions by the court of higher 
instance were not necessary to achieve the objective pursued. The court of higher 
instance could also have limited itself to setting out a legally binding opinion in 
which it ordered the court of first instance to take evidence and find the accused 
innocent or guilty on this basis. 
6.2 / The crux of the third question relates to whether the answer to the first 
question is influenced by the fact that the court of higher instance ruled solely on 
the basis of the evidence secured during the preliminary investigation. The court 
of higher instance set out the disputed opinion solely on the basis of evidence 
which was [not] taken at the main hearing and on which the accused [did not 
have] an opportunity to comment. 
6.3 / The crux of the fourth question relates to whether, in the event that the 
presumption of innocence is found to have been infringed, the principle of the 
primacy and effectiveness of EU law requires the opinion of the court of higher 
instance – which would otherwise be legally binding – to be rejected. It will also 
be necessary to assess whether this in and of itself will be an adequate and 
appropriate measure as referred to in Article 4(2) of Directive 2016/343. In 
particular, it will be necessary also to decide whether the judges of the court of 
higher instance will be recused from the proceedings in this instance on the 
grounds that the presumption of innocence was infringed. The national legislation 
does not provide for appropriate measures aimed at guaranteeing respect for the 
presumption of innocence in this respect, and it is therefore necessary to assess the 
appropriate measures on the basis of the principle of procedural autonomy of the 
Member States, which is limited by the principles of equivalence and 
effectiveness. 
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[…] 
[…] 
[formalities and formation determining the case]