Practice Relating to Rule 101. The Principle of Legality
In Decision No. 53/1993, the Constitutional Court of Hungary stated:
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 of 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 …
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.
The Court further stated:
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 … 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.
In 2004, in its second periodic report to the Committee on the Rights of the Child, Hungary stated: “Pursuant to the Criminal Procedures Act, the principle of nullum crimen sine lege
is a guaranteed rule.”