CASE OF KORBÉLY v. HUNGARY

(Application no. 9174/02)
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
1.  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
2.  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.
3.  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
4.  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.
5.  On 8 June 1995 the prosecution appealed.
6.  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.
7.  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.)
8.  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.”
9.  In the resumed proceedings, on 16 February 1998 an expert military historian presented his opinion on the above questions.
10.  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.
11.  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.
12.  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
13.  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.”
14.  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
15.  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.
16.  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.
17.  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.
18.  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.
19.  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.
20.  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.
21.  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.
22.  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.
23.  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.
24.  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.”
25.  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.
26.  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.
27.  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.
28.  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.