Practice Relating to Rule 155. Defence of Superior Orders
In 2004, in its fourth periodic report to the Committee against Torture, Hungary stated:
109. Section 123 of the Criminal Code provides:
(1) A soldier may not be punishable for his act executed upon order, except for the case if he knew that he commits a crime by the execution of that order.
(2) The person giving the order shall be liable for the crime committed upon order as perpetrator.
This provision is to be found in the General Part of the Criminal Code (Act IV of 1978), in chapter VIII, which relates to soldiers. For the purposes of the Criminal Code current members of the armed forces (army, border guards) and the official members of the police, penitentiary institutions and civil security services are to be regarded as soldiers.
114. Section 69 [of Act XLIII of 1996] provides as follows:
“Subsection 1: In performing duties members of the armed forces shall comply with the orders and instructions of their superiors unless they would commit criminal offence by complying.
“Subsection 2: With the exception set forth in subsection 1, members of the armed forces shall not deny compliance with unlawful orders or instructions.
“If the unlawfulness of the order or instruction is evident for the member of the armed forces he shall promptly call his superior’s attention to this fact. If upon that the superior still insists on issuing his order he shall put it in writing upon request to this effect by the subordinate. For the execution of unlawful order or instruction that person who has issued the order or the instruction shall be liable.”
118. Soldiers (within the meaning of the Criminal Code) who do not comply with orders are in violation of section 354 of the Criminal Code governing disobedience to orders.
119. With the exceptions specified above, soldiers shall not deny unlawful orders.
120. From these legal provisions it follows that within the circle of persons qualifying as soldiers subordinates shall be under the obligation of complying with orders unless they positively know that compliance would constitute a criminal offence. They shall not be punishable if they do not know that by complying with the order they commit a criminal offence since section 123 of the Criminal Code excludes the punishment of such persons. In that case, the person who has issued the order shall be liable. If the subordinate has recognized that by complying with the order he would commit a criminal offence and nevertheless still complies with the order, he shall be liable for the offence as perpetrator.