Thursday, 13 November 2008

Violation of European Convention in 1956 Hungary Prosecution

The European Court of Human Rights has ruled that Hungary violated article 7 of the European Convention on Human Rights, which prohibits retroactive criminal prosecution: Korbely v. Hungary. The case concerned a Hungarian national convicted of crimes against humanity with respect to participation in the quelling of a riot or disturbance during the 1956 uprising.
The law in the judgment (and, apparently, in the ruling of the Hungarian courts) is somewhat confusing, because the European Court seems to muddle the distinction between serious violations of common article 3 to the Geneva Conventions and crimes against humanity. It treats a violation of common article 3 as a crime against humanity, which cannot be right.
There are interesting discussions of the threshold for a non-international armed conflict (hence, the application of common article 3), as well as the contextual elements of crimes against humanity. In particular, the Court seems to support the views of Cherif Bassiouni (with which I agree), by which a State policy is a requirement for crimes against humanity. However, Professor Bassiouni’s views are rather in the minority, and they are directly contradicted by case law of the International Criminal Tribunal for the former Yugoslavia (Kunarac appeal).
This is an example of a rather strict application of article 7 of the European Convention. For another recent example, see Kononov v. Latvia, about which I made comments in an earlier blog. Most of the European Court’s case law has been rather more generous to States. Recent examples are Kolk and Penart v. Estonia and Jorgic v. Germany. Older ones include the German border guards case and the British spousal rape cases. The International Criminal Tribunal for the former Yugoslavia has taken a similarly flexible approach to the retroactivity rule, following a tradition that dates back to Nuremberg.
For the judgment:
Webcast of the hearing before the Grand Chamber:

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