Resolution CM/ ResDH (2011)296 [1]

Execution of the judgment of the European Court of Human Rights

Korbely against Hungary

(Application No. 9174/02, judgment of 19/09/2008 – Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the failure to observe the principle of " no punishment without law " due to the conviction of the applicant in 2001 for certain acts committed in the course of the Hungarian revolution in 1956, which had not been characterised as crimes against humanity at the material time (violation of Article 7) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011) 296

Information about the measures to comply with the judgment in the case of

Korbely against Hungary

Introductory case summary

This case concerns the failure to observe the principle of " no punishment without law " ( nullum crimen , nulla poena sine lege ) because in 2001 the domestic courts convicted the applicant, a retired military officer, of a crime against humanity under international law for having killed Tamás Kaszás and János Senkár in the course of a military operation during the Hungarian revolution in 1956 (violation of Article 7). The Court held that the domestic courts had not determined whether the killings had met the additional criteria without which they could not be characterised as a crime against humanity, and in particular whether they were to be regarded as forming part of a state policy involving massive and systematic attacks on the civilian population such as to bring it within the sphere of crimes against humanity, as this notion was to be understood in 1956. The Court also held that Tamás Kaszás was not a non-combatant protected by Article 3 common to the 1949 Geneva Conventions since he was leader of an armed group of insurgents and carried a concealed handgun. Moreover, he had failed clearly to signal his intention to surrender and had refused to surrender his weapon. Following a dispute, he had drawn his gun with unknown intentions in the applicant ’ s presence.

I. Individual measures

The Court did not award any just satisfaction because the applicant did not submit any claim on this account.

The applicant was conditionally released in May 2005 and the proceedings in his case were reopened before the Supreme Court which delivered a new judgment on 9 February 2009 (Bfv.X.1055/2008/5), convicting the applicant of the attempt ed multiple , intentional homicide constituting a crime against humanity. In its new judgment with more detailed reasoning, the Supreme Court took into account the judgment of the European Court and various elements of international law. In particular, it analysed the material condition of a non-international armed attack, the subjective condition on the part of the perpetrator performing the prohibited conduct as an enforcer of state policy, as well as the subjective condition on the part of the victim who does not directly or no longer take s part in the armed conflict. The Supreme Court concluded that the crime against humanity could not be established for the offence committed regarding the injury of Tam á s Kasz á s , as it could not be concluded without any doubt that he fell under the protection of (common) Article 3 of the Fourth Geneva Convention. The situation was judged differently, however, in respect of the defendant ’ s conduct against J á nos Senk á r , S á ndor Fasing , B é la R ó nav ö lgyi and Istv á n Bal á zs .

Consequently, given that the applicant was allowed to have his case be reopened following the judgment of the Court, no further individual measure was considered necessary by the Committee of Ministers.

II. General measures

The translation of the Court ’ s judgment was transmitted to the Office of the National Council of the Judiciary, which is in charge of the administration of the judiciary , with a view to familiarising the courts with it. The judgment was also transmitted to the Office of the Attorney General and the Supreme Court with a view to initiating review proceedings. It has been made available on the website of the Ministry of Justice and Law Enforcement (www.irm.gov.hu) and was published in professional journals. The competent committees of the Hungarian Parliament were informed of the measures taken for the implementation of this judgment.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Hungary has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers by tacit procedure in accordance with the decision taken at the 1128 th meeting (December 2011) under item F.