JOINT DISSENTING OPINION OF JUDGES LOREN ZEN, TULKENS, ZAGREBELSKY, FURA- SANDSTRÖM AND POPOVIĆ

(Translation)

We do not subscribe to either the reasoning or the conclusions of the majority as to the violation of A rticle 7 of the Convention in the present case .

1. The Court initially sets out to determine whether the act in respect of which the applicant was convicted could have amounted to a crime against humanity as that concept was understood in 1956 (see paragraph 77 of the judgment). In that connection, it rightly observes that the definition of the categories of persons who are protected by common Article 3 of the Geneva Conventions and/or Protocol II and the question whether the victim of the applicant ’ s shooting belonged to one of those categories have no bearing on whether the actions prohibited by common Article 3 are to be considered per se to constitute crimes against humanity (see paragraph 80) . Referring to the four primary formulations of crimes against humanity ( Article 6 (c) of the Charter of the International Military Tribunal a nnexed to the London Agreement of 8 August 1945 , Article 5 of the 1993 ICTY Statute , A rticle 3 of the 1994 ICTR Statute , and A rticle 7 of the 1998 ICC Statute), the Court concludes that murder within the meaning of common Article 3 § 1 (a) could have provide d a basis for a conviction for crimes against humanity . However , it considers that “ other elements also need to be present ” for an offence to qualify as a crime against humanity (see paragraph 81), namely international-law elements.

Referring in turn to the presence of discrimination against, and persecution of, an identifiable group of persons and a link or nexus with an armed conflict – elements which have been posited by legal experts but are the subject of much debate [6] – the Court concludes that a more relevant constituent element of crimes against humanity is that they should “form part of ‘ State action or policy ’ or of a widespread and systematic attack on the civilian population ” ( see paragraph 83). On that point, it is incorrect in our view to maintain, as the judgment does, that the domestic courts did not examine whether in 1956 there had been a widespread and systematic attack on the civilian population , seeing that the Supreme Court ’ s review bench held tha t it was common knowledge that the central power of the dictatorship had employed troops against the population engaged in demonstrations and against the armed revolutionary groups that were forming (see paragraph 3 4). As to the contention that the Supreme Court “ did not address the question whether the particular act committed by the applicant was to be regarded as forming part of this State policy ” (see paragraph 84) , it is quite simply at odds with the evidence in the case file and with the historical reality of the events in Tata on 26 October 1956.

Be that as it may, the restraint or caution evident in the conclusion of the judgment leaves open the initial question whether the act in respect of which the applicant was convicted could indeed have amounted to a crime against humanity. The Court thus considers that it is “ open to question whether the constituent elements of a crime against humanity were satisfied in the present case ” ( see paragraph 85), which indicates that it cannot find a violation of Article 7 of the Convention on that basis .

2. The reasoning and grounds put forward by the majority thus focus essentially on the second question : could Tamás Kaszás be regarded as a person taking no active part in the hostilities within the meaning of common Article 3 of the Geneva Conventions ? More specifically, was he a member of the insurgent forces who had “laid down his arms” ? The answer to this question requires an interpretation of the victim ’ s actions at the time of the confrontation and shooting in the Tata Police Department building, where the insurgents were to be found on 26 October 1956. In this instance the Court concludes that “ there is no element in the findings of fact established by the domestic courts which could lead to the conclusion that Tamás Kaszás expressed in such a manner any intention to surrender ” ( see paragraph 91). It therefore considers that he did not fall within any of the categories of non-combatant s protected by common Article 3 and that that provision could not reasonably have served as a basis for a conviction for crimes against humanity (see paragraph 94).

In its recapitulation of the general principles, the judgment reiterates that it is not normally the Court ’ s task to substitute itself for the domestic courts and that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. It rightly points out that this also applies where domestic law refers to rules of general international law or international agreements, the Court ’ s role being confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see paragraph 72). Nevertheless, the majority, without any explanation, head off in a different direction and, on a flimsy, uncertain basis, quite simply substitute their own findings of fact for those of the Hungarian judicial authorities.

In view of the complexity of the task of reconstructing the facts of the case more than fifty years after they occurred, we see no reason to place more reliance on the conclusions reached by the Court than on those of the domestic courts. On the contrary, we consider that the national courts were in a better position to assess all the available facts and evidence.

Admittedly, the domestic courts ’ decisions may have left certain questions unanswered regarding the victim ’ s conduct and the applicant ’ s interpretation of it. However, the possible insufficiency of the reasoning of the Supreme Court ’ s judgment could have raised an issue under A rticle 6 of the Convention but not, in the circumstances of the case, under Article 7 .

Those are the main reasons which have led us to conclude that there was no violation of Article 7 of the Convention in the present case .