The Constitutional Court was requested by the President to review the constitutionality and the compatibility with international law of a law enacted by Parliament in order to extend the non-applicability of statutory limitations to offences committed during the 1956 events.

The Court addressed, in turn, the relationship between international law and the domestic law of Hungary, the relationship between international criminal law and national criminal law in general, and the non-applicability of statutory limitations to international crimes under customary and treaty law.

The Court concluded that the Constitution requires the non-applicability of statutory limitation to be applicable only to offences which were not subject to statutory limitations under the law in force at the time the offences were committed, unless those offences were regarded as war crimes or crimes against humanity under international law. In the latter case, the application of Hungarian law would be precluded. Grave breaches of the Geneva Conventions and violations of common Article 3 – as crimes against humanity – were not subject to statutory limitations under the New York Convention of 1968 and thus precluded the application of statutory limitations under Hungarian law in force at the time the offences were committed.

Text:

On the basis of the petition submitted by the President of the Republic concerning the constitutional review of the provisions of the law passed by the National Assembly but not yet proclaimed, the Constitutional Court has made the following

2. The Constitutional Court holds that it is consistent with the Constitution if article 33 § (2) of the Penal Code is applied without regard of the Hungarian statutory limitations in effect at the time of the commission of the following offenses defined by international law:

- - "Grave violations of rights" as defined by the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, concluded in Geneva on August 12, 1949, applied to all cases of declared war or of any other armed conflict between two or more of the High Contracting Parties, as determined by common article 2 of the Geneva Conventions, concluded on August 12, 1949;

- - prohibited acts in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Party, international in character, as determined by common Article 3.

3. Article 1 of the Law "concerning the procedures in the matter of certain criminal offenses committed during the 1956 October revolution and freedom struggle," passed by the National Assembly on February 16, 1993, is contrary to articles 57 § (4) and 7 § (1) of the Constitution.

The application of article 2 of this law is constitutional within those constraints which the Constitutional Court defined above in paragraph 2 of this holding.

The Constitutional Court publishes its resolution in Magyar Közlöny (Hungarian Gazette).

Article 1, section (1): Concerning the statutory limitations of the punishment of criminal offenses, contained in article 13 § (7), (para. 84(g) of the Official Compilation of Penal Regulations in Force, or "OCPRF"), determined by article 8 of 1440/1945 (V.l.).ME decree, of the 81/1945. (II.5).ME decree elevated to the status of a law by Law VII of 1945 on People's Tribunals, article 33 § (2) of Law IV of 1978 on the Penal Code ("Penal Code") must be applied with respect those criminal offenses which were committed during the 1956 October revolution and freedom struggle.

Article 1, section (2): The penalty for the criminal offenses defined by article 1 of this Law , given the provisions of article 2 of the Penal Code - article 14 (para. 85 of the OCPRF) of article 9 of 1440/1945. (V. 1.)ME decree modifying 81/1945. (II. 5.)ME decree - - is incarceration for a period ranging from five to fifteen years, or life.

Article 2, section (1): Of the Geneva Conventions on the protection of the victims of war, concluded on August 12, 1949 and acceded to by Law 32 of 1954, in connection with:

a) article 130 of the August 12, 1949 Convention Relative to the Treatment of Prisoners of War, based on article 3 § (1); and

b) article 147 of August 12, 1949 Convention Relative to the Protection of Civilian Persons in Time of War, defining "grave violations of rights," based on article 3 § (1), concerning the applicability of statutory limitations for the punishment of criminal offenses committed during the 1956 October revolution and freedom struggle - - also noting article 1 § (a) of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, accepted by the United Nations Assembly on November 26, 1968, and entered into force by Law I of 1971, article 33 § (2) of the Penal Code must be applied.

Article 2, section (2): The penalties for the criminal offenses contained in section (1) above, given the provisions of article 2 of the Penal Code, are as follows:

a) in the case of intentional killing, a prison term ranging from five to fifteen years, or life, depending on the degrees of differentiation contained in articles 278 and 279 of Law V of 1878 (para. 349 and 351 of OCPRF), article 166 §§ (1) and (2) of the Penal Code;

b) in the cases of torture or cruel treatment, including biological experimentation, the intentional infliction of great pain, the attempt to cause grievous bodily harm, incarceration ranging from six months to five years, in accordance with articles 303-305 of Law V of 1878 (para. 362-364 of OCPRF), article 170 §§ (3) - (6) of the Penal Code;

c) in the cases of compelling a prisoner of war or other protected persons to serve in the enemy's armed forces, or depriving protected persons of the right to be sentenced on the basis of impartial procedures in compliance with the regulations of the present Convention, the unlawful transfer or expulsion, the unlawful prevention of movement and the taking of hostages, incarceration from six months to three years, in the event of the death of the victim, incarceration for up to five years, in accordance with Law V of 1878 articles 324-25 (para. 379-81of OCPRF), article 175 of the Penal Code;

d) in the cases of destruction or expropriation of possessions not justified by military exigency, which are excessive, unlawful or arbitrary, incarceration from two to eight, five to ten, or five to fifteen years, depending on the circumstances defined by articles 344-349 of Law V of 1878 and article 35 § (1) of Law XLVIII of 1948, (para. 433-437 of OCPRF), article 321 of the Penal Code.

Article 3, section (1): Concerning the criminal offenses enumerated in sections 1 and 2 of this Law, authority is vested,

a) for the investigation, exclusively in the Budapest Prosecutor's Investigative Office,

b) for judicial proceedings, exclusively in the Court of the Capital City.

Article 3, section (2): Concerning other aspects of the procedure for the criminal offenses enumerated in sections 1 and 2 above, Law I of 1973 is controlling.

Article 4. This law enters into force eight days after its publication.

a) war crimes, defined in articles 11 and 13 of the 81/1945. (II. 5.)ME decree, modified by 1440/1945. (V. 1.) ME decree elevated to the status of a law by Law VII of 1945;

b) other crimes against humanity (Chapter XI);

c) aggravated forms of homicide (article 166 § (2) a)-h) of the Penal Code;

d) kidnapping and aggravated forms of battery against superior or public officials (articles 177/ A § (4), 355 § (5) of the Penal Code);

e) terrorist acts, the hijacking of an aircraft and aggravated forms of rioting, if intentionally resulting in death (articles 261 § (2) a), 262 § (2), 352 § (3) b)).

3. The President of the Republic did not proclaim the Law but on March 8, 1993, submitted a petition to review its constitutionality.

According to the petition, the Law enacted by the National Assembly on February 16, 1993, addressed the same subject matter than the proposed law which the Constitutional Court had already examined. For this reason, the petition requested that the Constitutional Court also examine this Law to determine whether it complies with:

- - the International Covenant on Civil and Political Rights;

- - article 7 § (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention");

- - articles 2 § (1), 7 § (1), 8 § (1), 57 §§ (2), (4) of the Constitution and,

- - the requirements prescribed by Constitutional Court 11/1992 (III. 5) resolution, that is the constitutional principles of legitimacy of penal law, those being the restricted penal power of the state, faith in the law, legal security and - - manifested collectively through these principles - - the rule of law.

Such a preliminary norm control may only be directed at the determination of unconstitutionality. See article 26 §§ (4) and (5) of the Constitution, article 35 § (2) of Law XXXII of 1989 on the Constitutional Court (hereinafter referred to as "the CC Law"). In scrutinizing for incompatibility with an international agreement the Constitutional Court may only review legal rules, (see article 44 of the CC Law), and a legal rule attains that quality only upon its proclamation. Hence, there is no legal basis for examining the compatibility of the not yet proclaimed law with the international agreements.

2. However, in the process of the constitutional review of a legal rule, proposed law, or enacted but yet unproclaimed law which gives effect to international obligations and, especially, - - as in the present case as well - - if it is aimed specifically at harmonizing internal law with international law, as required by article 7 § (1) of the Constitution, the question whether the internal norm conflicts with the assumed international legal obligation, or whether the assumed international obligation is in harmony with the Constitution must necessarily be raised and answered.

The constitutionality of an internal legal rule related to international law is to be examined by different standards than a purely internal norm. Moreover, the recognition or non-recognition of the relevance of international law may lead to different outcomes in the constitutional review of a challenged domestic norm. Thus, the Constitutional Court must also consider article 7 § (1) of the Constitution in its constitutional review, because the "harmony" or "consonance" between international and domestic law mandated therein is also part of the requirement of constitutionality of the legal rules effecting international obligations.

In this regard it is of no moment whether the constitutional review of the legal rule is preliminary or ex post facto; neither may proceed without an examination of the harmony between the internal legal rule, international agreement and the Constitution. Thus, the jurisdictional limitations mean, at most, that in a preliminary constitutional review procedure a holding of this court shall not contain any formal finding on the relationship of the international agreement and the yet unproclaimed law.

Article 7 § (1) of the Constitution also means that by the Constitution's order, the Republic of Hungary participates in the community of nations; this participation, therefore, is a constitutional command for domestic law. It follows therefrom that the Constitution and domestic law must be interpreted in a manner whereby the generally recognized international rules are truly given effect.

b) The second sentence of article 7 § (1) - - the harmonization of the assumed international obligations and domestic law - - applies to every "assumed" international obligation, including the generally recognized rules. In addition, the harmonization must be achieved for whole of the domestic law, the Constitution included. Thus, article 7 § (1) of the Constitution mandates the harmonization of the obligations derived from the Constitution, international law - - directly or by agreement - - as well as domestic law; in ensuring their harmonization attention must be paid to their particular characteristics.

IV

The particular characteristics of war crimes

and crimes against humanity

In the presently discussed case the interpretation of both the Constitution and domestic law must proceed in light of the fact that the norms regulating war crimes and crimes against humanity comprise a particular part of international law, one which involves not merely responsibilities of nations with respect to one other, but also the determination of obligations and imposition of criminal liability onto individuals as well. By this action, therefore, international law touches upon such an area which otherwise falls within the sovereign state's domestic penal power, and it does so, with respect to war crimes and crimes against humanity, in a manner which, in many respects, diverges from the basic principles and application of domestic penal law.

1. In the cases of war crimes and crimes against humanity, such criminal offenses are involved whose classification did not arise as part of the domestic law's criminal taxonomy, but are deemed to constitute criminal offenses by the international community which defines their elements.

These criminal offenses - - according to the legal standard of international law which evolved since World War II - - are not simply offenses punishable by the domestic law of most countries. (Therefore, homicide may not, in itself, be classified as a crime against humanity). Their international status derives form their definition on a supra-national level, either on the basis of natural law (invocation of basic principles above and beyond positive law within international law is also a guarantee against arbitrary international agreements), or by reference to the protection of the "foundations of the international community," or by citing the threat posed by these activities for all of humanity: its commissioners are "enemies of the human race". Thus, the significance of these offenses is too great to permit their punishment to be made dependent upon the acquiescence or general penal law policy of individual nation states.

2. The international community prosecutes and punishes war crimes and crimes against humanity; it does so by international trials and, second, by insisting that those states which desire to be members of the international community prosecute such offenders.

The Nuremberg and Tokyo trials introduced and laid the foundation of the international criminal justice system; following in their footsteps, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide also provided for the creation of an international penal tribunal which, however, was never established. The states committed themselves by international agreements to the punishing of such crimes. During the past ten to fifteen years, the activities of international organizations (committees and tribunals) established to monitor and ensure compliance with the comprehensive human rights conventions have come to articulate with increasing vigor the condemnation of those states which in their domestic law fail to comply with their international obligations. (It is primarily the decisions and resolutions of the Inter-American Court of Human Rights and the Inter- American Commission of Human Rights which developed the international law based duty of states to initiate criminal prosecution which may not be avoided even by amnesty). International tribunals also appeared during the Gulf War, while the Security Council just recently established an international tribunal to punish those persons who are responsible for the grave violations of international humanitarian law in the territory of the former Yugoslavia (Sec. Con. Res. 808, Sec. Con. Res. 827 U.N. SCOR). The 808 Resolution requested that the Secretary General prepare the material necessary for the implementation of the resolution; in effect, this resolution is the statutory enactment of the International Tribunal.

The special significance of the May 3, 1993 Report and the May 25, 1993 resolution (S.C. Res. 808) is that precisely because of the requirement of nullum crimen sine lege, in sections 2-5 of the resolution it determines and describes in detail that international substantive law whose rules are "without a doubt comprise part of (international) customary law so that the problem that many but not all states are parties to a convention does not even arise". (Report, para. 34 [translated from Hungarian version - ed.]). Thus, the law to be applied is independent of the individual states' domestic law. Consistent with this, in punishing the offenses within its jurisdiction the International Tribunal is superior to the states' domestic courts. Although the Secretary-General's report calls upon these courts to initiate proceedings, the resolution provides that the International Tribunal may exercise jurisdiction over a case during any stage of the proceedings; furthermore the principle of ne bis in idem (prohibition of double jeopardy) is effected only to the extent that a person prosecuted, convicted and punished by an international tribunal may not be tried by a national court, but the obverse does not apply: the International tribunal may adjudge a matter anew if the national court treated the crime against humanity as an ordinary criminal offense, or if the national court's trial procedures were not fair, impartial or independent, or if such a trial was used to evade a trial by an international tribunal. (Article 10).

3. Therefore, the state which prosecutes and punishes crimes against humanity and war crimes, acts upon the mandate given to it by the community of nations, according to the conditions imposed by international law. The community of nations occasionally may also demand, through the action of international organizations, to review and reject that domestic legal practice which does not comply with international law.

The punitive power of the community of nations functions differently and within different constraints than that of individual states'; the differences are attributable to the specific characteristics of these prosecuted criminal offenses, especially the dangers they contain for the whole of humanity, which leads to the elevation of their punishment to the supra-national plane.

4. The prosecution and punishment of war crimes and crimes against humanity may only proceed within a framework of legal guarantees; it would be self- contradictory to protect human rights without such guarantees. But these international guarantees cannot be replaced or substituted by the legal guarantees of domestic law.

a) International law applies the guarantee of nullum crimen sine lege to itself, and not to the domestic law. "Customary international law," "legal principles recognized by civilized nations," "the legal principles recognized by the community of nations," is such a lex, or a body of written and unwritten laws, which classifies certain behavior prosecutable and punishable according to the norms of the community of nations (via international organizations or membership in a given community of states), irrespective whether the domestic law contains a comparable criminal offense, and whether those offenses have been integrated into an internal legal system by that country's accession to the pertinent international agreements. The gravity of war crimes and crimes against humanity, the fact that by their commission international peace, security and, indeed, humanity itself was placed in danger, cannot be reconciled with making their punishment subject to domestic law. The independent nature of the definition of the crime against humanity was articulated by article 6 c) of the Nuremberg International Military Tribunal; the activities enumerated therein are classified as crimes against humanity "whether or not they violated the internal law of the country in which they have been committed"; The 1968 New York Convention added the following clause to the definition of crimes against humanity: "even if the actions do not violate the internal law of the country in which they have been committed." In a similar vein, the Principles of Cooperation adopted by the U .N . General Assembly in 1973 (on the prosecution and punishment of war criminals) ordered the punishment of crimes against humanity "wherever they are committed". In defining the applicable substantive law for the International Tribunal created to redress international humanitarian law violation and to punish the crimes committed in the former Yugoslavia, the notion that such domestic law which incorporates international humanitarian customary law may also be considered was expressly rejected by the drafters, reasoning that those rules of international humanitarian law which undoubtedly became part of customary law "provide [in that capacity] a supplementary basis for the foundation of the legal authority." (Report, art. 36, trans. from the Hung. -ed.). This, too, reinforces the separateness of the two legal systems.

Article 15 § (1) of the International Covenant on Civil and Political Rights - -which, in its content, matches article 7 § (1) of the European Convention for the Protection of Human Rights and Fundamental Freedom - - obligates member states to uphold unconditionally the principles of nullum crimen sine lege and nulla poena sine lege. The reference by international law to the criminal offense defined ("[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed") has been interpreted by legal scholars to refer only to those criminal offenses which are undoubtedly punishable by domestic law, either via ratification or direct absorption.

According to article 15 § (2) of the Convention "[n]othing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations." (The content of article 7 § (2) of the European Convention is similar, with the distinction that the latter substitutes "civilized nations" for the term "community of nations"). This exception, is what makes possible the prosecution of the aforenoted and described sui generis criminal offenses defined by international law even by those member states whose domestic system of law does not recognize the definition or does not punish that action or omission. It follows logically, therefore, that such acts must be prosecuted and punished in accordance with the conditions and requirements imposed by international law. The second section of both (International and European) Conventions evidently break through the penal law guarantees of domestic law, also demanded by international law, especially as article 4 § (2) of the International Convention and article 15 § (2) of the European Convention both mandate that the principles of nullum crimen-nulla poena be given effect, even in situations of war or public emergencies threatening the life of the nation. For those states which incorporate the international legal norms concerning war crimes and crimes against humanity subsequent to the commission of these crimes, section 2 of the aforementioned articles authorize the retroactive application of statutorily enacted penal laws in the state's domestic legal system. But these acts must be adjudged punishable at the time of their commission by international, and not by domestic law.

Historically, the exception has been the punishment of war crimes and crimes against humanity committed during World War II. But the development of international law has since continuously separated the sphere of "international humanitarian law" from the war context, and has also made the prosecution and punishment of these crimes independent of the requirements and conditions of the domestic penal, including with respect to statutory limitations of the applicability of punishment, so much so that two conventions have been concluded on the non-applicability of statutory limitations for war crimes and crimes against humanity.

b) No international legal document defining international substantive or procedural law contains any time limitation on prosecution and punishment of war crimes and crimes against humanity. But in the aftermath of the Nuremberg and Tokyo trials, several countries prosecuted war crimes on the basis of their domestic law, and with the approach of the expiration of the statute of limitations, domestic statutory measures were taken to extend or suspend the statute of limitation, or to authorize its non-applicability. The aim of the 1968 New York Convention (Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 754 U.N.T.S. 73) was precisely the termination of the uncertainties and randomness associated with various domestic laws when the Convention declared that the war crimes and crimes against humanity enumerated therein "do not lapse irrespective of the date of their commission". (Translated from the Hung. - ed.). From the Convention's preamble it is evident that war crimes and crimes against humanity, on the one hand, and "ordinary criminal acts," on the other hand, cannot be treated in an identical manner .

The New York Convention came into being at a period when the ideal of the "collective" international prosecution of crimes against humanity was receding into the background. The Convention's signatory states assume the obligation to "preclude the application of statutory limitations, or to repeal them where they exists, for the punishment" (trans. from Hung. -ed.) of enumerated war crimes and crimes against humanity.

Article 7 § (2) of the European Convention and article 15 § (2) of the International Convention permit in principle for signatory states not to apply the domestic statutory limitations for crimes defined by the community of nations. In contrast, the New York Convention replaces this permissive provision with a mandatory one. Moreover, the New York Convention is retroactive.

The New York Convention was ratified basically only by the so-called Third World countries (or "developing countries") and the then socialist states. But this fact, which can be traced to then prevailing political conditions, did not make the regulation of the non-applicability of statutory limitations any less topical. In 1974, the Council of Europe prepared and opened for signature the European Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity. The scope of this Convention, in addition to covering the crimes against humanity enumerated in the Convention on the Prevention and Punishment of the Crime of Genocide, and the war-time violations defined by the Geneva Conventions, also extended to "any similar violation" of the right of war, but no such extension ("any similar violation") was applied with respect to crimes against humanity. The non-applicability of statutory limitations is applied prospectively, for activities committed subsequent to the Convention's entry into force in the signatory state. Retroactivity is permitted only where the statute of limitation has not yet expired; that is the European Convention only permits an extension of the statute of limitation. The Convention was ratified only by Holland (1981) and was signed, in addition to Holland, only by France (1974) and Belgium (1984). The majority of European states solved the non-applicability of statutory limitations for war crimes by resorting to domestic law.

The regulations of war crimes and crimes against humanity are undoubtedly part of customary international law; they are general principles recognized by the community of nations or, in the parlance of the Hungarian Constitution, they are among "the rules generally recognized by international law." The Hungarian legal system "accepts" these rules, to use the Constitution's terminology in article 7 § (1); and accordingly, without separate transformation or incorporation they fall within those "assumed international legal obligations" whose harmonization with domestic law is mandated by the second clause of the aforementioned article of the Constitution.

The international obligation to punish commissioners of war crimes and crimes against humanity applies to the whole of the international substantive law. Thus, it cannot be assumed without Hungarian law's acceptance of the international law conditions and requirements for the imposition of punishment as well. If any rule unequivocally comprising part of the international customary law on war crimes and crimes against humanity were to be interpreted differently by Hungarian law, then the activities prosecuted by domestic law on the basis of these offenses would cease to be war crimes or crimes against humanity according to international law. Such a procedure by the Hungarian state would not, however, alter the international legal command, nor would it modify the state's obligation, nor would it change the international law imposed criminal liability of the commissioners of such acts.

2. The international legal regulation of war crimes and crimes against humanity pays no heed to the principle of nullum crimen given effect by domestic law when it makes the punishment of these offenses independent of the fact whether or not they constituted a criminal offense in the domestic penal law at the time of their commission. But this action is contradictory only if one sought to harmonize international and domestic law by insisting that international law accommodate the domestic one. But in the case at hand, what is at stake is not simply that with respect to war crimes and crimes against humanity an exception is made from the otherwise unconditionally applied domestic rule of nullum crimen sine lege. Thus, the question cannot be limited to whether the particular regulations aimed at redressing the violations of international humanitarian law may be integrated into article 57 § (4) of the Constitution. The constitutional question must be raised and answered by considering that article 7 § (1) of the Constitution mandates that alongside with the domestic law, another legal system, certain rules of international law, must concurrently be given effect. Giving effect to international law concerning these crimes is the condition for the participation in the community of nations, which the Constitution expressly recognizes, mandates its application and harmonization with domestic law, and the domestic law's interpretation of those obligation in a divergent manner does not alter the state's international obligations. It is isolation from or rejection of international law which is what would be contrary to article 7 § (1) of the Constitution. But what occurs in this case is not the abandonment or destruction of the principle of nullum crimen but its limitation to the sphere of domestic law. Within its own system, international law demands that certain criminal acts be classified - - based on general principles recognized by the community of nations, interpreted by what has been referred to above as international customary law - - as war crimes or crimes against humanity at the time of their commission. Through the penal power of the Hungarian state it is, in fact, the penal power of the international community which is given effect within the framework of conditions and guarantees provided by international law. Domestic substantive law may be applied only to the extent international law expressly commands it (for instance, as is the case with imposition of sentencing). No domestic law confronted with a conflicting and express peremptory rule of international law (jus cogens) may be given effect.

The harmonization of domestic and international penal law may proceed in numerous ways. It is possible to enact express rules regarding the independence of the two systems. This is what the International and European Conventions did in their own sphere of jurisdictions when stating that the international obligation assumed for the unconditional application of the principle of nullum crimen in domestic criminal law is not violated or destroyed by giving effect to international legal rules on war crimes and crimes against humanity. This interpretive or "permissive" regulation by the Conventions facilitates the integration of the international rule into the domestic system of law - - what the Hungarian Constitution labels "harmony" or "consonance". Of course, the above mentioned Conventions can only facilitate the integration from the side of international law. The domestic aspect of the "harmony" or "consonance" must be addressed by the domestic law. Given the absence of an interpretive provision in the Hungarian Constitution similar to the provisions of the Convention noted above (and which rule, for instance, is found in the Portuguese Constitution), the Hungarian Constitution also permits the interpretation of international law. This is, in fact, a constitutional requirement by article 7.

On the basis of the reasoning above, there is no contradiction between article 57 § (4) and article 7 § (1) of the Constitution and, instead, they must be interpreted in light of one another. Alongside with the unconditional applicability of the principle of nullum crimen to domestic law, article 7 § (1) brings about the constitutional realization of international penal law's rules pertaining to war crimes and crimes against humanity.

3. Those international conventions and documents which define war crimes and crimes against humanity, and which are undoubtedly part of the generally recognized and unconditionally applied rules of international law, do not regulate the statute of limitation. For this reason, those states which prosecute these crimes on the basis of international law may apply their own domestic penal laws concerning the statute of limitation and are not compelled to declare that their statutory limitations may never expire. The 1968 New York Convention on the non-applicability of statutory limitations for the punishment of war crimes and crimes against humanity, as well as the 1974 European Convention addressing a similar subject matter, may not be regarded as part of customary international law or a generally recognized principle of international law. But those states which ratified either one of the two conventions assumed the international obligation to declare, even with retroactive force, that the statutes of limitation may never expire with respect to the war crimes and crimes against humanity enumerated in the conventions.

With Law I of 1971, Hungary proclaimed the New York Convention. With this proclamation it not only assumed the international obligation concerning the non-applicability of statutory limitations, but also recognized the broader concept of the crimes against humanity than is "generally" recognized by international law. This is so, as according to the Convention apartheid and exile by use of armed force or occupation is also deemed to constitute war crimes or crimes against humanity.

In deciding the question whether the obligation assumed by the Convention is to be given the same weight by article 57 § (4) than the general rules of international law, what matters is that the rules of non-applicability of statutory limitations are closely related to the nature of war crimes and crimes against humanity and that in this regard we may characterize the development of international law as a still clear, but yet not concluded process. International law itself does not contain any regulation of the statute of limitation. The New York Convention - - according to its preamble - -merely renders unequivocal this international legal situation and concurrently makes it impossible for signatory states to apply domestic statutory limitations to the punishment of certain crimes. Thus the Convention extends the defining characteristic of the international legal regulation of these criminal offenses - - the rendering of prosecution and punishment independent of domestic substantive law - - to procedural law as well, that is, to the period during which prosecution and punishment may be initiated. If with respect to the fundamental question - - the giving effect of sui generis international legal conditions alongside with domestic law - - the answer given is that unconstitutionality has not arisen, then this verdict perforce applies to this collateral or auxiliary assumption of an obligation of the same nature. In its 11/1992. (III.5.)AB resolution, the Constitutional Court interpreted uniformly all the constitutional conditions on the imposition of domestic law's criminal liability. The Constitutional Court proceeded the same way with respect to international law's criminal liability as well.

4. Constitutionalism demands that only international penal rules and regulations be given effect concerning the definitions and conditions contained in international law.

a) The criminal offense defined in article 1 of the Law does not constitute a war crime according to international law.

According to the definition of article 13 § (7), (para. 84(g) of the Official Compilation of Penal Regulations in Force, or "OCPRF"), determined by article 8 of 1440/1945 (V.1.).ME decree, of the 81/1945. (II. 5).ME decree elevated to the status of a law by Law VII of 1945 on People's Tribunals, a person is a war criminal who "in any form commits or has committed, causes or has caused such activities to take place which are capable of undermining or rendering more difficult the post-war peace or cooperation of the nations, or which may create international conflict."

Such a definition does not appear in a single international convention or document which contains regulations on war crimes or crimes against humanity, and especially not in those which undoubtedly qualify as the repositories of generally recognized principles by the community of nations or international customary law. This substantive law, international humanitarian law, was recapitulated most recently by the document authorizing the International Tribunal to prosecute the war crimes committed in the territory of the former Yugoslavia. The rules of the international humanitarian law embrace: the offense of "grievous violation of rights" defined by the Geneva Convention of August 12, 1949; the violation of the rights and customs of wars, as the rules of the 1907 Hague Convention were interpreted and applied by the Nuremberg International Military Tribunal; the actions made punishable under the Convention on the Prevention and Punishment of the Crime of Genocide, whether committed during war or peace time; and, finally, the crimes against humanity, as contained in the Charter and the judgment of the Nuremberg International Military Tribunal, committed against the civilian population during international or domestic armed conflicts. Within these broad categories, the documents and pertinent conventions contain the specific definitions of the behaviors constituting the offenses. In this constitutional review procedure the Constitutional Court refrained from addressing whether the definition contained in article 1 of the Law is unconstitutional for lack of definitiveness, but holds that its general definition cannot be classified as war criminal behavior according to the international legal definitions on such offenses.

In accordance what has been stated above, with respect to the criminal offenses defined in article 1 of the Law, which belong only to the sphere of the domestic penal law, the retroactive application of article 33 § (2) of the Penal Code (commanding the non-applicability of statutory limitations on prosecution and punishment) is not constitutional, and this article of the domestic Penal Code may only be applied if, at the time of the commission of the criminal offense, the Hungarian penal law then in force had declared the non-applicability of statutory limitations. The Law extends to the criminal offenses committed during "the 1956 October revolution and freedom struggle." But during this time, the Hungarian penal law did not contain any provision permitting the non-applicability of statutory limitations for the prosecution and punishment of the criminal offenses in question. Accordingly, article 1 of the Law seeks an unconstitutional application of article 33 § (2) of the Penal Law to the offenses enumerated in the Law. The determination of the expiration date of certain specific criminal offenses is not for the legislature to determine.

b) It is "on the basis" of the "grave violation of rights" defined in the August 12, 1949, Geneva Convention relative to the Protection of Civilian Persons in Time of War, and by considering article 1 § (a) of the New York Convention of 1968 which prohibits the application of statutory limitations for prosecuting and punishing war crimes and crimes against humanity, that article 2 of the Law orders the application of article 33 § (2) of the Penal Code to the criminal offenses committed during the 1956 October revolution and freedom struggle.

The "grave violations of rights" of common article 2 of the Geneva Conventions refer to international armed conflict. For armed conflict of non-international (domestic) in nature, the behaviors deemed prohibited are defined by common article 3. In separate articles, the Conventions define precisely and in a detailed manner the sphere of protected persons; only against these categories of persons can the "grave violation of right" be committed. (See articles 4 and 130 of the Geneva Convention relative to the Treatment of Prisoners of War and articles 4 and 147 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War. The latter Convention, for instance, protects only those persons who are in the power of the Occupying Power or State Party of which they are not citizens, and the protection of the Convention does not apply to citizens of the non-signatory states or those of neutral countries entitled to diplomatic protection). In contrast, common article 3 applies "at any time and in any place whatsoever" to all persons "taking no active part in the hostilities".

The drafting of the Law conflates several regulations of the Geneva Conventions addressing different subject matters and categories of protected persons and creates a connection among them which does not appear in the Conventions. Domestic regulation may not alter the content of an international agreement. Hence, the constitutional concerns raised concerning the text of the Law is justified.

The Constitutional Court points out that the New York Convention of 1968 imposes the non-applicability of statutory limitations requirement not only on those behaviors prohibited under the Geneva Conventions which qualify as "grave violations of rights". Article I (a) of the New York Convention - - upon whose "consideration" the Law mandates the application of article 33 § (2) of the Penal Code - - does, indeed, refer to "grave violations of rights," but as an example of the war crimes defined by the Nuremberg International Military Tribunal. According to article I, "independent of their commission, the statutes of limitations of the following criminal offenses do not lapse: a) the war crimes defined by the August 8, 1945, Charter of the Nuremberg International Military Tribunal, especially those which are enumerated as "grievous violations of rights". (trans. from Hung. ed.).

The activities enumerated in common article 3 of the Geneva Conventions constitute crimes against humanity and they contain those minimal requirements which every State Party in an armed conflict is obligated to comply with and which are "at any time and in any place" are prohibited (in contrast with the scope of application of "grievous violations of rights"). According to the common article 3 § (2) of the Geneva Conventions, the State Parties to a conflict may enter into force other provisions of the Conventions by separate agreement and, indeed, State Parties shall endeavour to do so. Thus, the punishment of the "grievous violations of rights" in article 3 requires a separate agreement. But according to the International Court of Justice, the prohibitions registered in article 3 are based on "elementary consideration of humanity" and may not be breached in the course of any armed conflict, irrespective whether it is international or domestic in nature. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 4 (June 27) at 114. It is also by reference to the definition of crimes against humanity that article 3 of the Conventions is invoked by the U.N. Report (para. 47) authorizing the creation of an International Tribunal for the prosecution of crimes committed in the territory of the former Yugoslavia. Thus, the statute of limitation for the punishment of the activities enumerated in common article 3 of the Geneva Conventions does not expire either; in case these offenses do not fall within the category of war crimes defined by article I (a) of the New York Convention - - either with respect to the scope of protected persons or because of the manner of the commission of the act - - they would be unavoidably covered by the non-applicability of statutory limitations requirement imposed by article I (b) of the Convention on crimes against humanity.

c) The Constitutional Court also calls attention to the fact that the retroactive non-applicability of statutory limitations contained in the New York Convention applies exclusively to criminal offenses defined by international law and enumerated in the New York Convention. In this way they are distinguished from the similarly defined criminal offenses of domestic law. For instance, homicide qualifies as crime against humanity only if it is committed on a "massive scale" or as part of a "large scale regular attack". The Constitutional Court points out that the appropriateness of classifying a specific criminal offense a war crime or crime against humanity is, in the last instance, supervised by the community of nations, in the event those cases are submitted to international human rights committees or tribunals.

d) A defining characteristic of war crimes and crimes against humanity is that they are punished irrespective whether or not they violated the laws of the country in which they were committed. With respect to crimes against humanity, article 1 (b) of the New York Convention reiterates - - and for all criminal offenses defined in article I - - it extends this principle to the retroactive non-applicability of statutory limitations as well. Thus, whether the proclamation of the Geneva Conventions has properly taken place is of no moment, nor whether the obligation assumed by the Hungarian state to implement them had occurred prior to the date designated by the Law as the temporal limit of its scope (October 23, 1956, that is). The criminal liability of the commissioners remains by international law and subsequent domestic legislation may give effect to the full scope of liability.

5. To remedy the constitutional concerns raised in connection with article 2 of the Law, the Constitutional Court could have terminated the conflation of article 3 of the Geneva Convention and those articles which contain the definition of the "grievous violations of rights". However, such a solution could only have been achieved by striking out either those articles of the Law related to article 3 of the Geneva Convention, or those invoking the other articles of the Conventions. Since in principle the retention of either article would be constitutional, as the parliamentary sources do not shed light on whether the legislature's intent was primarily to reiterate the non-applicability of statutory limitations for punishing "grievous violations of rights" or whether its emphasis was prompted merely by the interpretation of the New York Convention and - - if it were the latter - - whether its intention was to embrace the restrictions on the scope of protected persons and activities which unavoidably accompany the punishment of "grievous violations of rights", the Constitutional Court did not opt for this solution.

In its 38/1993. (VI. 11).AB resolution the Constitutional Court stated that the court avoids the nullification of a legal rule if the constitutionality of the system of law and legal security may be secured without recourse to such a measure. In such case, the Constitutional Court defines, by constitutional requirements, that sphere of interpretation which, whenever complied with, permits the legal rule to be in harmony with the Constitution. (IV. (2) a)).

Consonant with this position, and also in order to dispel the legislature's possible doubts, the Constitutional Court found it necessary that the constitutional requirements imposed in connection with the application of article 33 § (2) of the Penal Code, defined with binding force by the first part of the holding of this resolution, be made more concrete and also binding with respect to the international law criminal offenses contained in article 2 of the Law. By this procedure the declaration of unconstitutionality of article 2 of the Law became avoidable; and article 2 of the Law merely became part of that broader framework in which, irrespective of the pace of future legislative action, by the binding force of the Constitutional Court's resolution, the provisions of the Geneva Conventions may be constitutionally applied.

Budapest, 1993 October 12.

Dr. Ádám Antal Dr. Géza Kilényi

Justice Justice

Dr. Tamás Labady Dr. Péter Schmidt

Justice Justice

Dr. András Szabó Dr. Ödön Tersztánszky

Justice Justice

Dr. Imre Vörös Dr. János Zlinszky

Justice Justice

References: National Laws and Regulations
Constitution: Art. 7 and 57
Criminal Code, 1978: Art. 2 and 33 .


References: International Treaties and Documents
Third Geneva Convention 1949: Art. 2 , 3 , 4, and 130
Fourth Geneva Convention 1949: Art. 2 , 3 , and 147
UN Convention on Statutory Limitations 1968: Art. 1 .