EHRM, 19-09-2008, nr. 9174/02

‘[A] crime against humanity in violation of Article 3(1) of the Convention (IV) relative to the Protection of Civilian Persons in Time of War, adopted in Geneva on 12 August 1949 and proclaimed in Hungary by Law-Decree no. 32 of 1954, punishable pursuant to section 1(2a) of Act no. 90 of 1993 [on the procedure concerning certain crimes committed during the October 1956 revolution and freedom fight].’

‘[T]he legal provision to be applied by the court is an international convention in respect of its hypothesis, but refers back to the domestic criminal law in respect of the sanctions.

Article 7(1) of the Constitution requires that the relevant international legal instrument be applied, incorporating it in domestic law; and Act no. 90 of 1993 transforms it into a provision of positive criminal law. Given that the hypothesis of the crime in question has been incorporated into domestic law — but domestic law does not have its own notions in this connection — the interpretation of that hypothesis can only be carried out in accordance with the international law.

Both Act no. 28 of 1990 on the enactment of the significance of the 1956 revolution and freedom fight and Act no. 90 of 1993 on the procedure concerning certain crimes committed during the October 1956 revolution and freedom fight state that in 1956 a revolution and a freedom fight took place in Hungary. On this basis, as well as according to the [commonly known] facts, it can be established that at the time of the perpetration of the crime on 26 October 1956 a revolution was in progress in Hungary. Nevertheless, this definition contained in the domestic legislation does not make it unnecessary to examine whether there was a non-international armed conflict. In its part establishing the hypothesis [of the crime in question], Act no. 90 of 1993 refers to the convention signed on 12 August 1949; consequently, the interpretation [of this hypothesis] can only be carried out according to the relevant international legal practice or to international legal documents if such exist.

The above-mentioned convention defines its own scope of application in Article 2 as follows: ‘in addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them’. Moreover, Article 3 provides that its rules have to be applied ‘in the case of an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’.

The court had to examine whether at the time of the perpetration of the crime on 26 October 1956 an armed conflict not of an international character was taking place in Hungary.

The term ‘armed conflict not of an international character’ is defined by the Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), proclaimed by Law-Decree no. 20 of 1989. Article 1(1) of this Protocol lays down the conditions of application of the relevant provisions as follows: ‘This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.’ Article 1(2) states that ‘this Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts’.

The problem which may emerge because the term ‘armed conflict not of an international character’ is defined in Article 1(1) of the Protocol relating to the Protection of Victims of Non-International Armed Conflicts, signed on 8 June 1977 and promulgated in Hungary by Law-Decree no. 20 of 1989 — that is, in an international convention that was concluded after the perpetration of the crime — is merely illusory, since Article 1(1) of Protocol II declares that this protocol develops and supplements Article 3 common to the Geneva Conventions of 1949 without, however, modifying its existing conditions of application. Therefore, it can be ascertained that although Protocol II develops and supplements the substantive norms (that is, the rules of conduct in the case of a non-international conflict), it does not introduce any modifications to their existing conditions of application. In view of this, Article 1(1) of Protocol II itself establishes that the definition of an armed conflict not of an international character, which is contained in the same paragraph, does not modify the meaning of that term as used by the 1949 Geneva Conventions, but merely interprets it. With respect to [the original definition], [this one] is neither a restrictive nor an extensive interpretation, but the very first interpretation defining the meaning of the initial term. (In the court's view, this interpretation cannot be either restrictive or extensive in any event, since no other international legal document contains a definition of the term with which to compare this interpretation.) Accordingly, the term ‘armed conflict not of an international character’ must be seen as having been already conceived with this meaning at the time when the convention was signed.

When analysing the term, it can be observed that such armed conflicts fall in the category of conflicts that ‘take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’…

During the night of 23 to 24 October 1956, the first spontaneously organised armed groups came into existence in the territory of Hungary, especially in those parts of Budapest where they confronted the Soviet army which was being deployed unexpectedly. It can be unambiguously established that these armed groups were opposing the central power, although several of them maintained regular negotiations with the Government of the Hungarian People's Republic and the Ministry of Defence. It can also be determined that the armed groups did not operate under any central command, because by the time the joint command of the national guards and the Government's forces was established under the leadership of Béla Király, appointed by Prime Minister Imre Nagy, the armed conflicts in the country had already essentially ceased. Consequently, it is self-evident that, although the armed groups maintained a loose network of information between themselves, they did not perform their military operations in various parts of the country in a concerted manner. It seems that it will forever be impossible to ascertain the territories in which and the extent to which the armed groups stood under the control of the various spontaneously organised revolutionary bodies or under that of the former administration, which remained partly operational throughout.

Comparing the definition of Protocol II and the statements contained in the opinion of the expert historian, it can be ascertained that Act no. 90 of 1993 and, consequently, Convention (IV) relative to the Protection of Civilian Persons in Time of War, signed in Geneva on 12 August 1949, are not applicable to the instant conduct as set out in the indictment.

This is so because, according to the opinion of the expert historian, on 26 October 1956 the operating armed groups did not remain under a central command. There were no distinct combatant parties, since the armed groups and persons that were effectively operating, while they might even have been active in the same area yet independent from each other, were often guided by different political motivations. It cannot be ascertained which territories of the country were controlled, and to what extent, by armed groups which may have allowed them to carry out sustained and concerted military operations. On no account can it be established that the armed groups reached a level of organisation or submitted to a central command to such an extent that enabled them to implement the regulations of the Protocol during the military activities.

In view of the above, the court has found neither the international convention promulgated in Hungary by Law-Decree no. 32 of 1954 nor Act no. 90 of 1993 to be applicable to the present crime.

The conduct of the accused … would constitute multiple homicide, committed in part as an inciter, had it occurred as stated in the bill of indictment. …

The crime committed by the accused — even if proven — became statute-barred on 26 October 1971; therefore, the court has discontinued the criminal proceedings.’

‘In the course of characterising the crime, the court first examined whether the act described in the findings of fact constituted a crime against humanity or the crime of incitement to multiple homicide. Defence counsel's argument — namely, that no criminal liability can be established on the ground of the Geneva Conventions since they had not been promulgated in due form in Hungary, and that criminal liability based on them would thus violate the principles nullum crimen and nulla poena sine lege— cannot be sustained.

In decision no. 53/1993 (X.13.) the Constitutional Court stated that the legal system of the Republic of Hungary accepted the generally recognised rules of international law, which are likewise part of Hungarian law without any further (additional) transformation. According to chapter IV(4a) of the decision, international law applies the guarantee of nullum crimen sine lege to itself rather than to domestic law. Customary international law, the legal principles recognised by civilised nations and the legal principles recognised by the community of nations, constitute a lex which classifies certain types of behaviour as prosecutable and punishable according to the norms of the community of nations, irrespective of whether domestic law contains a comparable criminal offence or whether the relevant treaties have been incorporated into domestic law. In view of these considerations, this court has not found it necessary to examine whether the Geneva Conventions had been properly promulgated by Law-Decree no. 32 of 1954.

Article 3(1) of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted on 12 August 1949 and proclaimed by Law-Decree no. 32 of 1954, reads as follows: …

In view of the above and of chapters V(4) and II of Constitutional Court decision nos. 53/1993 and 36/1996, respectively, this court had to examine whether the conduct described in the findings of fact corresponds to the elements contained in [common Article 3(1) of the Geneva Conventions].

The Geneva Conventions do not define the notion of an armed conflict of a non-international character. In this connection, the court finds decisive Article 1(1) of Protocol II relative to the Protection of Victims of Non-International Armed Conflicts, adopted on 8 June 1977 and promulgated by Law-Decree no. 20 of 1989, which reads as follows: …

In view of the above, while making its findings of fact, the court had to examine whether in the material period, between 23 October and 4 November 1956, the armed groups operating in Hungary which were opponents to the armed forces of the government were under responsible command and exercised such control over a part of the country's territory as to enable them to carry out sustained and concerted operations.

In its own findings of fact — in the light of the opinion of the expert historian — this court has not established that these conditions existed in the period when the impugned act was committed.

The conventions [the Fourth Geneva Convention and Protocol II] subject their scope of application to strict and conjunctive conditions. As is prescribed in the convention, it becomes effective only if the armed conflict is of high intensity and the fighting activity of the opponents is institutionalised.

From the established findings of fact this court has drawn the conclusion that no so-called armed conflict of a non-international character within the meaning of international law was in progress in Hungary on 26 October 1956. The historical background set out in the findings of fact does not substantiate the establishment of the crime defined in international law, since several elements of the crime as defined in international law are missing.

In view of the above, the defendant's act — even if proven — should be characterised, according to the rules in force at the time of its commission, as multiple homicide partly committed as an inciter, within the meaning of section 352 of the BHÖ.1. This crime was, in accordance with section 25(a) of Act no. 2 of 1950 as then in force, statute-barred after a period of 15 years had elapsed. Having regard to section 2 of the Criminal Code, section 33(2c) of the Criminal Code — which excludes statutory limitation in the case of aggravated murder — cannot be applied.

The court has not established condemnatory findings of fact in regard to the defendant; however, it has not delivered an acquittal, since in its view, in the case of statute-barred conduct, the ground which eliminates punishability — that is, statutory limitation — has precedence over the fact that the impugned act has not been proven in any event.

Therefore, the court has discontinued the proceedings against the defendant for the crime of multiple homicide partly committed as an inciter, since it became statute-barred on 26 October 1971.’

‘Spontaneously and unexpectedly, a revolution and freedom fight broke out in Hungary on 23 October 1956.

In the course of these events, as early as during the night of 23 to 24 October 1956, the first spontaneously organised armed groups came into existence, especially in those parts of Budapest where they confronted the Soviet army, which was progressing unexpectedly. These armed groups were opposing the central power, although several of them maintained regular negotiations with the government of the Hungarian People's Republic and the Ministry of Defence. The armed groups did not operate under any central command, because by the time a joint command of the national guards and of the government forces was established under the leadership of Béla Király, appointed by Prime Minister Imre Nagy, the armed conflicts in the country had essentially already ceased. Consequently, it is self-evident that, although the armed groups maintained a loose network of information between themselves, they did not perform their military operations in various parts of the country in a concerted manner.

On 23 October 1956 the central government still regarded the people's spontaneous revolutionary acts as a counter-revolution, and intended to suppress the armed revolt relying on their armed forces. Because of political disputes, an internal struggle within the leadership of the Hungarian Workers' Party, the success of the armed groups and the political pressure exerted on the government, on 28 October the latter, headed by Imre Nagy, ceased to classify the events as a counter-revolution, and declared them to be a national uprising…

Therefore, it was appropriate for the first-instance court to state the facts as follows:

In accordance with the requirements of constitutionality set out by the Constitutional Court for the purposes of the application of the law in [its decisions nos. 53/1993 and 36/1996], the Supreme Court has had to examine in the present case whether the multiple homicide committed on 26 October 1956, [i.e.] in the first period of the October 1956 revolution and freedom fight, constituted an offence under common Article 3 of the 1949 Geneva Conventions — that is, whether that crime was committed in a manner prohibited by that provision.

If all the elements and conditions of the above provision prevail, then the deliberate homicide committed in violation of international law will constitute a crime against humanity which is punishable irrespective of the date of its perpetration. Such a crime cannot be statute-barred pursuant to Article 1(a) or 1(b) of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted by the United Nations' General Assembly in New York on 26 November 1968 and proclaimed in Hungary by Law-Decree no. 1 of 1971.

If, however, the elements and conditions prescribed by the international law do not fully prevail, then the impugned act will constitute homicide under domestic law.

Article 3(1) of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted on 12 August 1949 and proclaimed by Law-Decree no. 32 of 1954, reads as follows: …

Having regard to the principle of nullum crimen sine lege, the question whether the impugned act constituted a crime prohibited by international law in 1956 will be resolved depending on whether the general conditions set out in the initial clause of common Article 3 were fulfilled.

However, the Conventions did not clarify either in common Article 3 or in any other provisions the notion of an ‘armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’. Nor have the Conventions laid down the time from which, in the case of a civil war, an internal armed conflict between the parties qualifies as such, or in other words, the time from which the provisions of the Convention apply to the parties to an internal armed conflict.

Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted in Geneva on 8 June 1977 and proclaimed in Hungary by Law-Decree no. 20 of 1989, provides that the Protocol ‘develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application’.

To develop and supplement a given convention clearly means, according to the grammatical interpretation of the terms, that any legal question arising must be resolved by way of a joint examination of the principal convention and the supplementary protocol, and an eventual interpretation of the law can only be carried out through such joint examination.

Therefore, the Supreme Court has held that the sole authoritative interpretation was the definition set out in Article 1(1–2) of the above Protocol, which reads as follows: …

In the light of the well-known events of the October 1956 revolution and freedom fight and the other circumstances established in the findings of fact, it is unequivocal that the 1956 revolution and freedom fight started spontaneously on 23 October 1956. During the four days which had elapsed by 26 October 1956, the level of organisation required by the notion of an armed conflict of a non-international character had not been attained.

It can directly be deduced from the first-instance court's complete — and therefore, authoritative — findings of fact that the revolutionary armed groups were not under responsible command, nor did they exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations and to implement the Geneva Conventions properly.

Against the aforementioned background, it must be concluded that, in the course of the October 1956 revolution and freedom fight, not all the elements of the hypothesis of a crime against humanity within the meaning of Article 3 common to the 1949 Geneva Conventions prevailed on 26 October 1956.’

‘Crimes against humanity within the meaning of Article 3 common to the 1949 Geneva Conventions regarding the protection of civilians in wartime are not statute-barred.

[Thus], in accordance with the first clause of Article 7 (1) of the Constitution, the prosecution of war crimes and of crimes against humanity belongs to the category of international legal obligations undertaken without any special amendments or adaptation — the international legal regulations do not take into consideration the principle of nullum crimen sine lege prevalent in domestic legislation as they seek to punish such acts regardless of whether these were punishable under domestic law at the time they were committed. Therefore, the absence of relevant domestic legislation, or any deviation [from international law] enshrined in domestic law, is irrelevant, since international law requires within its own system that such crimes be classified as war crimes or crimes against humanity at the time they were committed, in accordance with the general principles accepted by the community of nations. The Hungarian State has signed and ratified the Geneva Conventions, which came into force on 3 February 1955. Hungary also signed the 1968 New York Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.

The courts ruling in this case have come to the correct conclusion that the crime described in the prosecution's findings of fact did in essence take place, even though in their assessment it had not been proven that it was committed by the defendant.

However, the courts dealing with the case erroneously took the view that the conduct with which the defendant was charged, if proved, should be characterised solely as a crime of multiple homicide under the domestic law in force at the relevant time, namely section 352 of the BHÖ, and thus could no longer be assessed from the perspective of crimes against humanity within the meaning of Article 3 common to the Geneva Conventions, with the result that, under the relevant provisions of Act no. 2 of 1950, the act was no longer punishable…

Thus, the courts interpreted the words ‘develops and supplements’ contained in the above-mentioned article of Protocol II erroneously in both the grammatical and the logical sense, applying an exclusive and in itself erroneous grammatical interpretation. They disregarded the passage of the Protocol explaining that the instrument was intended to develop and supplement common Article 3 ‘without modifying its existing conditions of application’, for from this wording it can only be concluded that the Geneva Conventions are invariably in force and their conditions of application remain valid.

The conditions for the applicability of Protocol II, however, are to be applied exclusively to the Protocol itself, as also follows from the following passage of the Protocol: ‘This Protocol … develops and supplements Article 3 common to the Geneva Conventions … without modifying its existing conditions of application…’

Article 3 common to the Geneva Conventions had an original scope of application, and the Additional Protocol cannot be taken to have a retroactive effect restricting that scope.

Through Article 3 common to the Geneva Conventions, the community of nations intended to secure safeguards for protected persons in civil-war situations where the population of a given State and the armed forces of that State confronted each other. The wording of this provision does not contain any further condition in addition to this. To require further criteria would impair the humanitarian character of the Conventions. If the Convention and the Protocol were to be interpreted in conjunction with each other, it would mean that, should the resistance of the population under attack by the armed forces of the State not attain the minimum level of organisation required by the Additional Protocol, Article 3 common to the Geneva Conventions would not be applicable even if the armed forces of the State were to exterminate a certain group of the population or the entire population…

Independently of the findings of fact, it is common knowledge that, from 23 October 1956 onwards, the central power of the dictatorship made use of its armed forces against the unarmed population engaged in peaceful demonstrations and against armed revolutionary groups whose organisation was in progress. During this time, the armed forces employed significant military equipment, such as tanks and aircrafts, and their activities against the population opposed to the regime spread over the whole country. In practical terms, they waged war against the overwhelming majority of the population. The same is confirmed by the orders issued in this period by the dictatorship's Ministers of Defence.

Having regard to all this, it can be established that an armed conflict of a non-international character was in progress in the country from 23 October 1956 onwards, for such time as the armed forces of the dictatorship were acting against the population, and until the country was occupied by the army of the Soviet Union on 4 November, from which time the conflict became international.

Against this background, the courts dealing with the case wrongly applied the substantive criminal law in holding that the conduct described in the findings of fact did not constitute crimes against humanity but multiple homicide within the meaning of the domestic law alone, an offence that was thus already statute-barred, and in consequently discontinuing the proceedings against the defendant on the ground of non-punishability…’

‘In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.’

‘A person is ‘hors de combat’ if

‘[I]n land warfare, surrender is not bound by strict formalities. In general, a soldier who wishes to indicate that he is no longer capable of engaging in combat, or that he intends to cease combat, lays down his arms and raises his hands. … If he is surprised, a combatant can raise his arms to indicate that he is surrendering, even though he may still be carrying weapons.

In these various situations, surrender is unconditional, which means that the only right which those who are surrendering can claim is to be treated as prisoners of war. If the intention to surrender is indicated in an absolutely clear manner, the adversary must cease fire immediately; it is prohibited to refuse unconditional surrender …’

‘Rule 47. Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is:

provided he or she abstains from any hostile act and does not attempt to escape.2.

‘CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecution on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.’

‘The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

‘The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:

For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

‘No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:

Article 2

If any of the crimes mentioned in article 1 is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.’

‘The legal system of the Republic of Hungary shall accept the generally recognised rules of international law and shall furthermore secure harmony between its obligations under international law and domestic law.’

‘Having regard to the decision of the Constitutional Court of 12 October 1993, Parliament enacts the following statute on proceedings concerning certain crimes committed during the 1956 uprising and revolution:

Section 1

Having regard to Article 1 of the UN Convention on Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 26 November 1968 … (promulgated by Law-Decree of no. 1 of 1971), section 33(2) of the Criminal Code [in which the cases of non-applicability of statutory limitations are enumerated] shall be applied to the statutory limitation on the punishability of crimes committed during the 1956 uprising and revolution, which are defined as grave breaches

‘The commanding officers of companies and institutes shall ensure, as of the 1956/57 academic year, that members of the forces take cognisance of the basic principles of the Conventions.’