AB and Others (Révocation d'une amnistie)

On 16 December 2021, the Third Chamber of the CJEU rendered a judgement concerning the interpretation of ne bis in idem principle in the context of a European Arrest Warrant, as well as of the term of criminal proceedings in the context of Directive 2012/13 on the right to information in criminal proceedings.

In 2001, the District Court brought the prosecutions against the applicants to an end on the basis of an amnesty issued by the Prime Minister of the Government of the Slovak Republic in 1998. In 2017, the amnesty was revoked with the result that the criminal proceedings against the accused persons and applicants were resumed. In the context of criminal proceedings, the referring court considered issuing a European Arrest Warrant (EAW) against one of the accused (ST) on the ground that that person might be in the territory of one of the Member States.

Against this background and before issuing the EAW against ST, the District Court referred to the CJEU three preliminary questions: it asked, first, whether Article 50 of the Charter precludes the issue of a EAW against a person who was subject to a criminal prosecution that was initially discontinued by a final judicial decision adopted on the basis of an amnesty, and resumed following the adoption of a law revoking that amnesty and setting aside that judicial decision; secondly, whether Directive 2012/13 on the right to information in criminal proceedings applies to a legislative procedure relating to the revocation of an amnesty and to a judicial procedure for review of the compliance of that revocation with the national constitution and, if so, whether that directive, read in the light of, inter alia, Articles 47 and 50 of the Charter, precludes such procedures; thirdly, whether Article 4(3) TEU, Articles 82 and 267 TFEU, and Articles 47 and 50 of the Charter preclude legislation of a Member State under which the review by that Member State’s constitutional court of a legislative provision revoking an amnesty is limited to an assessment of its compliance with the constitution, without any further assessment of its compliance with EU law.

Before assessing the substance of the first question, the Court was called to rule on its admissibility which was questioned on the ground that an EAW was not yet issued. In this regard, the CJEU reminded that the EAW Framework Decision requires the issuing authority to ensure that the EAW complies with fundamental rights of the person concerned before issuing one. As a result, the Court concluded that by making a preliminary question, the referring court was implementing EU law as it aimed to fulfil its obligation as set out in the EAW FD, and therefore the first preliminary question was admissible.

In order to answer the first question in substance, the Court reminded that a judicial decision constitutes a decision finally disposing of the case – for the purposes of Article 50 of the Charter – only when it is taken after a determination as to the merits of the case. As a result, a decision bringing to an end the prosecution due to the amnesty – albeit having the same effects as a decision of acquittal under the national law – does not trigger the application of the ne bis in idem principle in the case where this decision was adopted before any determination as to the criminal liability. Therefore, in the latter case Article 50 cannot preclude the issue of an EAW against a person who was subject to a criminal prosecution that was initially discontinued by a final judicial decision adopted on the basis of an amnesty, and resumed following the adoption of a law revoking that amnesty and setting aside that judicial decision.

As far as the second question is concerned, the Court decided that the notion of ‘criminal proceedings’ for the purpose of Directive 2012/13 cannot be understood as encompassing a legislative procedure relating to the revocation of an amnesty or a judicial procedure the purpose of which is to review the compliance of that revocation with the national constitution, in so far as the purpose of the latter proceedings is not to determine a person’s criminal liability. Finally, the Court held that the third question was not admissible as EU law is not applicable to national legislation governing the judicial review of a legislative provision revoking an amnesty.