Practice Relating to Rule 160. Statutes of Limitation
Hungary’s Criminal Code (1978), as amended in 1998, provides that statutory limitations will not apply to war crimes and crimes against humanity.
In Decision No. 53/1993, the Constitutional Court of Hungary stated:
1. In the application of article 33 § (2) of Law IV of 1978 on Penal Code (hereinafter referred to as “the Penal Code”) it is a constitutional requirement that the non-applicability of statutory limitations may only be determined with respect to those criminal offenses which have not lapsed according to Hungarian law in effect at the time of the commission of the offense; except if international law classifies the offense as a war crime or crime against humanity, declares or makes possible the non-applicability of statutory limitations, and Hungary has assumed the obligation by international law to preclude the applicability of statutory limitations.
2. The Constitutional Court holds that it is consistent with the Constitution if article 33 § (2) of the Penal Code is applied without regard to 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 Parties, international in character, as determined by common Article 3.
The Court further stated:
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” … 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 exist, for the punishment” … of enumerated war crimes and crimes against humanity.
Article 7 § (2) of the European Convention and article 15 § (2) of the International Convention [1966 International Covenant on Civil and Political Rights] 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.
In addition, the Court stated:
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.
The Constitutional Court points out that the New York Convention of 1968 imposes the non-applicability of statutory limitations requirement not only on those behaviours 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’.
… [T]he statute of limitation for the punishment of the activities enumerated in common article 3 of the Geneva Conventions does not expire … 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 … 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.
In 1996, the Constitutional Court of Hungary held that the provision of Hungary’s Penal Code on the imprescriptibility of war crimes and crimes against humanity could only be applied to grave breaches in international conflicts and prohibited acts under common Article 3 of the 1949 Geneva Conventions.
In 1967, during a debate in the Third Committee of the UN General Assembly on the question of the punishment of war criminals and of persons who have committed crimes against humanity, Hungary stated:
21. … The recent adoption … in the Federal Republic of Germany of an Act under which statutory limitation would be applied to war crimes was a setback to the development of international law …
22. It was impossible to accept the arguments of those who favoured the application of statutory limitation to war crimes on the grounds that that principle was recognized in domestic legislation, for it was not ordinary crimes that were in question … Legal technicalities could not … be allowed to prevent the punishment of those who were responsible for war crimes and still not been brought to justice … The Hungarian Government had therefore established the non-applicability of statutory limitation to war crimes by legislation decree, in 1964.