Information Note on the Court’s case-law 111

August-September 2008

Korbely v. Hungary [GC] - 9174/02

Judgment 19.9.2008 [GC]

Article 7

Article 7-1

Nullum crimen sine lege

Conviction in respect of an act which did not constitute an offence under the relevant international law at the time of its commission: violation

Facts : The applicant was a retired military officer. In 1994 he was indicted for his participation in the quelling of a riot in Tata during the 1956 revolution. He was charged with having commanded, as captain, a 15-strong squad in an assignment to regain control of a police department building which had been taken over by insurgents, and with having sh ot, and ordered his men to shoot, at civilians. Several people died or were injured in the incident, which according to the findings of the domestic courts, was triggered when one of the insurgents removed a pistol from a coat pocket after being told to ha nd over the weapon.

The trial court initially discontinued the criminal proceedings on the grounds that the offences with which the applicant was charged constituted homicide and incitement to homicide, rather than crimes against humanity, so that their p rosecution was statute-barred. Ultimately, however, the applicant was convicted under Article 3(1) of the Geneva Convention of 1949 of a crime against humanity through multiple homicide and sentenced to five years’ imprisonment. He served part of his sente nce before being conditionally released. Before the European Court, he complained that he had been convicted in respect of an act which did not constitute a criminal offence at the time of its commission.

Law : The Court had to determine whether, at the tim e of its commission, the applicant’s act constituted an offence defined with sufficient accessibility and foreseeability by domestic or international law. The applicant was convicted of multiple homicide, which the Hungarian courts regarded as a crime agai nst humanity punishable under the Geneva Conventions. The conviction was thus based exclusively on international law. Since the Geneva Conventions satisfied the accessibility test, the Court turned to the issue of foreseeability. In deciding that issue, it examined, firstly, whether the applicant’s act was capable of amounting to a crime against humanity as that concept was understood in 1956 and, secondly, whether it could reasonably be said that the victim of the alleged offence was “taking no active part in the hostilities”.

(a) Whether the applicant’s act was capable of amounting to a crime against humanity : Although murder within the meaning of common Article 3 could have provided a basis for a conviction for crimes against humanity committed in 1956, other elements also needed to be present. These derived not from common Article 3 but from the international-law elements inherent in the notion of crime against humanity at the time. Certain of these appeared relevant, notably the requirement that the cri me in question should not be an isolated or sporadic act but should form part of “State action or policy” or of a widespread and systematic attack on the civilian population. The domestic courts, however, had confined their examination to the question whet her the insurgents came under the protection of common Article 3 and did not examine the further question whether the killing had met the additional criteria necessary to constitute a crime against humanity, in particular, whether it was to be seen as form ing part of a widespread and systematic attack on the civilian population. Although the Supreme Court had found that the central authorities had effectively waged war on the civil population, it had not addressed the question whether the applicant’s act wa s to be regarded as forming part of that State policy. It was thus open to question whether the constituent elements of a crime against humanity had been satisfied in the applicant’s case.

(b) Whether the victim could reasonably be said to have taken no a ctive part in the hostilities : The applicant’s conviction was based on the finding that one of the victims was a non-combatant for the purposes of common Article 3. That provision extended protection to persons taking no active part in hostilities, includi ng members of armed forces who had laid down their arms. The deceased had clearly taken an active part in the hostilities as he was the leader of an armed group of insurgents who had engaged in acts of violence, taken control of the police building and sei zed the officers’ weapons. The question was, therefore, whether he had laid down his arms. The domestic courts found as a fact that he had secretly been carrying a handgun and had not clearly and unequivocally signalled an intention to surrender. Instead, he had embarked on an animated quarrel with the applicant before drawing his gun with unknown intentions. It was precisely in the course of that act that he had been shot. Accordingly, In the light of the commonly accepted international-law standards appli cable at the time, the Court was not satisfied that the deceased could be said to have laid down his arms within the meaning of common Article 3 or that he fell within any of the other categories of non-combatant.

Accordingly, it had not been shown that it was foreseeable that the applicant’s acts constituted a crime against humanity under international law.

Conclusion : violation (eleven votes to six).

© Council of Europe/European Court of Human Rights This summar y by the Registry does not bind the Court.

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