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CASE OF
KORBÉLY v. HUNGARY
(Application
no. 9174/02)
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1929 and lives in Szentendre,
Hungary. He is a retired military officer who was serving a sentence
at Budapest Prison when the application was introduced.
A. The indictment and background to the events
- On
14 December 1993 the Budapest Investigation Office started an
investigation into alleged crimes against humanity perpetrated in the
town of Tata during the 1956 uprising. On 20 April 1994 the applicant
was heard as a suspect.
- On
27 December 1994 the Budapest Military Public Prosecutor's Office
indicted the applicant for his participation in the quelling of a
riot in Tata during the 1956 uprising. He was charged with having
commanded, as captain, a military squad of some 15 officers in an
assignment, on 26 October 1956, to regain control of the building of
the Tata Police Department, which had been taken over by armed
insurgents, and with having shot, and ordered his men to shoot at,
civilians. Several persons died or were injured in the incident.
B. The first-instance and Constitutional Court
proceedings
- On
29 May 1995 the Military Bench of the Budapest Regional Court
discontinued the criminal proceedings, holding that the crime with
which the applicant was charged – homicide and incitement to
homicide, rather than a crime against humanity – was
statute-barred.
- On
8 June 1995 the prosecution appealed.
- On
28 November 1995 the Supreme Court suspended the appeal proceedings
pending the outcome of a case before the Constitutional Court
concerning the constitutionality of Act no. 90 of 1993 on the
Procedure concerning Certain Crimes Committed during the October 1956
Revolution and Freedom-Fight.
- On
4 September 1996 the Constitutional Court annulled the entirety of
Act no. 90, holding that,
“thereby, the impediment to the Hungarian
authorities' prosecuting and sanctioning [the perpetrators of] war
crimes and crimes against humanity, as defined in international law,
has been removed.” (Constitutional Court decision no. 36/1996.
(IX.4.)
- On
6 December 1996 the Supreme Court quashed the decision of 29 May 1995
and remitted the case to the investigating authority (pótnyomozás).
It instructed the authority as follows:
“[...] it must be clarified whether the elements
of the findings of fact and the conditions laid down in the [Geneva]
Conventions can be identified in the circumstances. On this basis, it
can be determined whether the impugned conduct constituted a crime
against life or a crime against humanity, not susceptible to
prescription. [...] In order to reach a well-founded decision, the
chronology of the armed conflicts during the October 1956 revolution
and freedom-fight must be established in the findings of fact. On
this basis, it will be possible to ascertain whether the armed forces
of the revolution were under a responsible command, exercised control
over part of the country's territory and were acting in a sustained
and concerted manner.”
- In
the resumed proceedings, on 16 February 1998 an expert military
historian presented his opinion on the above questions.
- The
military prosecutor argued that the applicant was guilty of crimes
against humanity, prohibited by Article 3(1) of the Geneva Convention
relative to the Protection of Civilian Persons in Time of War
(“Geneva Convention”), adopted on 12 August 1949, and was
punishable under sections 166(1) and 166(2) of the Criminal Code,
which concern homicide.
- Defence
counsel argued that the Geneva Convention was not applicable to the
facts of the case and that, in any event, its application would run
counter to the principles of nullum crimen sine lege and nulla
poena sine lege, given that it had not been properly proclaimed
in Hungary.
- On
7 May 1998 the Military Bench of the Budapest Regional Court
discontinued the criminal proceedings against the applicant. It held
that, in view of the Constitutional Court's decision no. 53/1993
(X.13.), the Geneva Convention might in principle ground the
applicant's criminal liability. However, in order to define the
notion of an “armed conflict not of an international
character”, Article 1 of Protocol II Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conflicts (“Protocol II”),
was to be taken into consideration. Relying inter alia on the
opinion of the expert military historian, the court held that no such
armed conflict was in progress in Hungary on 26 October 1956, and
therefore neither the Geneva Convention nor Protocol II applied to
the case. In particular, the court held that it could not be
established, in view of the opinion of the expert historian, that the
opponents to the applicant's squad had been under responsible command
or exercised such control over a part of the country's territory as
to enable them to carry out sustained and concerted military
operations.
C. The appeal and review proceedings
- On
the prosecution's appeal, on 5 November 1998 the Supreme Court,
sitting as a second-instance court, upheld this decision. This court,
which had obtained the opinion of a third expert military historian,
held inter alia as follows:
“The opinion was well-founded and convincing in
all aspects. In addition to the description of the well-known
principal events between 23 and 26 October 1956, the expert dealt in
detail with the situation and actual power of the government's armed
forces and that of the revolutionary armed forces. He examined in
detail the course of military actions and the related events of the
revolution, both as regards each district of Budapest and all the
counties. His conclusions are essentially in conformity with ... the
opinion issued by the Institute for the History of the 1956 Hungarian
Revolution on 26 July 1994. ... During the night of 23/24 October
1956, the first spontaneously organised armed groups came into
existence, especially in those parts of Budapest where they
confronted the Soviet army, which was progressing unexpectedly. These
armed groups were opposing the central power, although several of
them maintained regular negotiations with the Government of the
Hungarian People's Republic and the Ministry of Defence. The armed
groups did not operate under any central command, because by the time
the joint command of the national guards (nemzetőrök)
and the government's forces was established under the leadership of
Béla Király, appointed by Prime Minister Imre Nagy, the
armed conflicts in the country had essentially already ceased.
Consequently, it is self-evident that, although the armed groups
maintained a loose network of information between themselves, they
did not perform their military operations in various parts of the
country in a concerted manner. ... The anti-government forces, active
in various parts of the country, did not aim, in the territory of the
3 to 4 square kilometres controlled by them, to exercise power or to
create the institutions of the branches of power; their objective was
to disturb and impede the activities of the government forces. ...
In the light of the well-known events of the October
1956 revolution and freedom-fight and the other circumstances
established in the findings of fact, it is unequivocal that the 1956
revolution and freedom-fight started spontaneously on 23 October
1956. During the four days which had elapsed by 26 October 1956, the
level of organisation required by the notion of an armed conflict of
a non-international character had not been attained. It can directly
be deduced from the first-instance court's complete – and
therefore, authoritative – findings of fact that the
revolutionary armed groups were not under responsible command, nor
did they exercise such control over a part of the territory as to
enable them to carry out sustained and concerted military operations
and to implement the Geneva Conventions properly. Against the
aforementioned background, it must be concluded that, in the course
of the October 1956 revolution and freedom-fight, not all the
elements of the hypothesis of a crime against humanity within the
meaning of Article 3 common to the 1949 Geneva Conventions prevailed
on 26 October 1956.”
- On
the prosecution's motion for review of 22 January 1999, on 28 June
1999 the Supreme Court's review bench quashed this decision and
remitted the case to the second-instance bench. The Supreme Court
held inter alia as follows:
“... the courts dealing with the case erroneously
took the view that the conduct with which the defendant was charged,
if proved, should be characterised solely as a crime of multiple
homicide under the domestic law in force at the relevant time ...,
which thus could no longer be assessed from the perspective of crimes
against humanity within the meaning of Article 3 common to the Geneva
Conventions. ...
Article 3 common to the Geneva Conventions had an
original scope of application, and the Additional Protocol cannot be
assigned a retroactive effect restricting that scope.
Through Article 3 common to the Geneva Conventions, the
community of nations intended to secure safeguards for protected
persons in civil-war situations where the population of a given State
and the armed forces of that State confront each other. The text of
this norm does not contain any further condition in addition to this.
To require further criteria would impair the humanitarian character
of the Conventions. In case the Convention and the Protocol are
interpreted in conjunction, should the resistance of the population
being under attack by the armed forces of the State not attain the
minimum level of organisation required by the Additional Protocol,
Article 3 common to the Geneva Conventions would not be applicable
even if the armed forces of the State exterminate a certain group of
the population or the entire population.
The Commentary (Commentaire IV, page 23) of the
1949 Geneva Conventions, edited by the International Committee of the
Red Cross, provides guidelines on how to interpret the notion of
armed conflicts of a non-international character in that it allows
for the application of this notion in cases of de facto
hostilities and/or if the State's armed forces are engaged.
The fact-finding efforts of the historians and military
historians are very important from the perspective of the history of
Hungary and that of the 1956 revolution and freedom-fight. However,
their views cannot be decisive as regards the interpretation of the
international treaty notion of armed conflicts of a non-international
character.
Independently of [and in addition to] the findings of
fact, it is commonly known (közismert tény) that,
from 23 October 1956 onwards, the central power of the dictatorship
made use of its armed forces against the unarmed population engaged
in peaceful demonstrations and against the armed revolutionary groups
whose organisation was in progress. ... Practically, they waged war
against the overwhelming majority of the population. ... Having
regard to all this, it can be established that an armed conflict of a
non-international character was in progress in the country from 23
October 1956 onwards, as long as the armed forces of the dictatorship
were acting against the population, and until the country was
occupied by the army of the Soviet Union on 4 November, whence the
conflict became international.
Against this background, it was in wrongful application
of the substantive criminal law that the courts dealing with the case
held that the conduct, as described in the findings of fact, did not
constitute crimes against humanity but multiple homicides within the
meaning of the domestic law alone, already statute-barred. ...”
D. The resumed first and second-instance proceedings
and the applicant's final conviction
- In
the resumed second-instance proceedings, the Supreme Court's appeal
bench held hearings on 18 May and 6 September 2000. On the latter
date it quashed the decision of 7 May 1998, essentially for
shortcomings in the findings of fact, and remitted the case to the
first-instance court.
- In
the resumed first-instance proceedings, the Military Bench of the
Budapest Regional Court held hearings on 9, 10, 11, 16, 17 and 18
January 2001. On the latter date it convicted the applicant of a
crime against humanity, which he had committed as the principal of,
and inciter to, a number of counts of homicide (több emberen
– részben felbújtóként –
elkövetett emberöléssel megvalósított
emberiség elleni bűncselekmény). The court
relied on documentary evidence and the testimonies of the accused and
numerous witnesses. The fact that, in addition to the fatalities, two
more persons were wounded was deemed to be an aggravating factor. It
sentenced the applicant to three years' imprisonment and a five-year
deprivation of certain rights. By virtue of an intervening amnesty
decree, the applicant was exempted from serving the sentence.
- The
findings of fact as established by the Military Bench of the Budapest
Regional Court can be summarised as follows. At the material time,
the applicant, then a captain (százados), was serving
as an officer in charge of a training course (tanfolyam-parancsnok)
at the Tata military school for junior officers. Following the
demonstrations and riots in Budapest on 23 October 1956, on 24
October martial law was introduced, under the terms of which any
person bearing arms without authorisation was punishable by death.
The applicant was aware of these provisions which had been announced
on the national radio. Prior to the incident for which he was
prosecuted, at dawn on 26 October 1956 insurgents had unsuccessfully
attacked the military school. During the exchange of gunfire, an
officer had been killed and another wounded. Shortly afterwards, the
building of the local prison and prosecutor's office had been
occupied by the insurgents. The applicant had the task of relieving
the building, an assignment identical to that for which he was later
prosecuted. On this occasion, however, he had managed to convince the
insurgents, without using force, to leave the premises.
- The
insurgents whom the applicant was then ordered to disarm at the
Police Department, had taken control of the building by force in the
afternoon of 26 October 1956. Having overcome the resistance of the
police forces, the insurgents, including a certain Mr K., had armed
themselves with the guns confiscated from the police. Among the
insurgents, Mr K. and another person took command. Their intention
was to execute the Head of the Police Department, but eventually they
refrained from doing so. Mr K. and a smaller group of insurgents
stayed behind in the building, in order to secure their position; Mr
K. informally assumed their leadership.
- Like
his previous assignment, the applicant was specifically ordered to
organise a group of officers, deploy them at the Police Department
and regain control of that building, using force if necessary. Each
member of the applicant's squad, composed of some 15 officers, had a
7.62-mm submachine gun and a pistol; the group was moreover equipped
with two 7.62-mm machine guns and some 25 hand grenades.
- On
their way to the Police Department, the applicant's squad met two
young men, one of whom was carrying a submachine gun. The applicant's
subordinates confiscated the gun and released the two individuals
unharmed.
- The
applicant divided his men into two platoons, one of which stayed
outside, near the entrance to the police building, while the other
went inside. In the yard there were four or five disarmed police
officers as well as five civilians, the latter belonging to the group
of insurgents. On arrival, the officers in the applicant's platoon
aimed their submachine guns at the insurgents. One of the insurgents,
Mr B., stated that they were unarmed. However, one of the disarmed
police officers said that Mr K. had a gun. Mr B. asked the latter to
surrender the weapon. Thereupon, a heated dispute, of unknown
contents, evolved between the applicant and Mr K.
- Finally,
Mr K. reached towards a pocket of his coat and drew his gun. The
applicant, presumably misunderstanding Mr K.'s move, or out of fear,
ordered, in a resolute manner, his men to fire. Simultaneously, he
was firing his submachine gun at Mr K. who, shot in his chest and his
abdomen, died immediately. Of the shots fired on the applicant's
order, one and three shots hit respectively two other persons.
Another insurgent was shot and died of his injuries subsequently. Two
individuals ran out on the street, where the other platoon of the
applicant's men started to shoot at them. One of them suffered a
non-lethal injury on his head; the other person was hit by numerous
shots and died at the scene. When subsequently the applicant was
driving away from the premises on a motorbike, he was shot at by
unidentified persons, fell off the bike and suffered some injuries.
- Relying
on these findings of fact, the court held that the applicant's
conduct was punishable under Article 3(1) of the Geneva
Convention, as perpetrator in respect of the killings inside the
building, and as inciter in respect of the one outside. When
sentencing the applicant, the court compared, pursuant to section 2
of the Criminal Code, the relevant rules of criminal law, as in force
at the time of the commission of the crime, with those of the
Criminal Code as in force at the time of the delivery of the
judgment. It found that the former were more lenient (lex mitius)
and were therefore to be applied to the case.
- On
appeal, on 8 November 2001 the Supreme Court, acting as a
second-instance court, amended this judgment, which became final on
that day. It deleted from the findings of fact the conclusion that
“the applicant, presumably misunderstanding Mr K.'s move, or
out of fear, [had] ordered, in a resolute manner, his men to fire”.
It replaced this part of the reasoning with the following
consideration:
“[It ...] can rightly be deduced that the
applicant heard [Mr B.'s] call that Mr K. should surrender his gun.
Because it was immediately thereupon that a quarrel evolved between
the applicant and the victim and that the victim drew his gun, the
correct conclusion concerning what was on the applicant's mind
(tudattartam) is that he knew: the victim intended to hand
over the gun, rather than to attack with it.”
- As
to the characterisation of the applicant's conduct, the Supreme Court
held that the crime against humanity which the applicant had
committed consisted of having intentionally murdered more than one
person (több emberen elkövetett szándékos
emberöléssel megvalósított emberiség
elleni bűntett). The Supreme Court considered that the
applicant bore no responsibility, as an inciter, for the killing
committed outside the building. In response to a motion for an
aggravated sentence introduced by the prosecution, it nevertheless
increased the principal sentence to 5 years' imprisonment. Given the
increased sentence, the applicant could no longer be exempted from
its execution; however, its duration was to be reduced by one eighth
because of the relevant amnesty provisions.
- On
14 July 2002 the Military Bench of the Budapest Regional Court
dismissed the applicant's request for a re-trial. His appeal to the
Supreme Court was unsuccessful. A repeated request was rejected on 16
June 2004.
- On
22 September 2003 the Supreme Court's review bench declared
inadmissible the applicant's petition for review, without an
examination on the merits, since it was incompatible ratione
materiae with the relevant provisions of the Code of Criminal
Procedure.
- The
applicant's request for a pardon was to no avail. On 24 March 2003 he
started to serve his sentence. On 31 May 2005 he was conditionally
released.
