a) Hungary / b) Constitutional Court / c) / d) 05-03-1992 / e) 11/1992 / f) / g) Magyar Közlöny (Official Gazette), 23/1992 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Rule of law.
General Principles - Certainty of the law.
General Principles - Nullum crimen, nulla poena sine lege.
General Principles - Prohibition of arbitrariness.
Fundamental Rights - Civil and political rights - Non-retrospective effect of law - Criminal law.
Keywords of the alphabetical index:
Transition, justice / Sanction, criminal, reimposition / Statute of limitations, extension / Pardon, restriction / Punishment, mitigation, restriction.
Concerning the question of the constitutionality of the specific provisions of Act IV of 1991 on the Prosecution of Serious Criminal Offences not previously prosecuted for Political Reasons, the Constitutional Court's opinion is the following:
1. Reimposition of criminal punishability for offences whose statutes of limitation had expired is unconstitutional.
2. Extension of the statute of limitation defined by law for criminal offences whose statute of limitation has not yet expired is unconstitutional.
3. Enactment of a law to interrupt the running of the statutes of limitation for criminal offences whose statute of limitation has not yet expired is unconstitutional.
4. The determination of causes for the suspension and interruption of the statute of limitation by a retroactive law is unconstitutional.
5. With respect to the running of the statute of limitation, there is no constitutional basis for differentiating between the State's failure to prosecute for political or for other reasons.
6. The vagueness of the statutory definition stating that the "State's failure to prosecute for criminal offences was based on political reasons" is repugnant to the principle of legal certainty, and as a result, the suspension of the statute of limitation on such a basis is unconstitutional.
7. It is unconstitutional for the Act to incorporate the crime of treason within its scope without consideration of the fact that the legally-protected subject matter has undergone numerous changes under different political systems.
8. Restrictions upon the right of pardon for a partial or total mitigation of punishments, imposed on the basis of the Act, are unconstitutional.
The President of the Republic, having declined to promulgate Act IV of 1991 on the Prosecution of Serious Criminal Offences not previously prosecuted for Political Reasons (henceforth: "the Act"), petitioned for a preliminary review of its constitutionality.
He sought to know whether Article 1 of the Act violated the principle of the rule of law under Article 2.1 of the Constitution and, further, Article 57.4 of the Constitution. In particular, he petitioned, inter alia, as to whether:
a. the recommencement of the statute of limitation conflicted with the principle of the rule of law, an essential component of which was legal certainty;
b. Article 1 of the Act amounted to an unconstitutional retroactive criminal law which violated the doctrine of nullum crimen sine lege especially since the statute of limitation for acts criminalised by the section might have already expired according to the Criminal Code in force at the time the acts were committed;
c. the recommencement of the statute of limitation, which had already expired, violated the rule of law, especially the principle of legal certainty;
d. moreover, overly general provisions and vague concepts violated the principle of legal certainty, e.g. "the State's failure to prosecute its claim was based on political reasons"; and
e. it was a violation of the prohibition of arbitrariness under Article 54.1 and equal protection of citizens under Article 70/A of the Constitution that a distinction was drawn by the law as regards different instances of the same offence being committed, with the state giving different reasons for prosecuting or excusing such offences.
The ambiguity and vagueness of the Act offended the principle of legal certainty and was accordingly unconstitutional. Since the change of system had proceeded on the principle of legality as imposed by the rule of law, the old law had thereby retained its validity and thus, irrespective of the date of enactment, every law had to comply with the present Constitution. It was possible, however, to give special treatment to the previous law where legal relationships created by the old (now unconstitutional) law could be harmonised with the new Constitution; or where, in judging the constitutionality of new laws intended to remedy unconstitutional measures of the previous systems, whether the unique historical circumstances of the transition should be taken into consideration. Such matters were to be resolved in conformity with the fundamental principle of the rule of law, of which legal certainty formed a part, that required, inter alia, the protection of vested rights, the non-interference with legal relations already executed or concluded, and the limitation of the possibility of modifying existing long-term legal relations. As a consequence of legal certainty, already concluded legal relations - as a rule - could not be altered constitutionally either by enactment or by invalidation of existing law. Retroactive modification of the law and legal relations were permitted within very narrow limits. Exceptions to legal certainty were permissible only if the constitutional principle competing against it rendered this outcome unavoidable, provided that in fulfilling its objectives it did not cause disproportionate harm. Accordingly, reference to historical situations and the rule of law's requirement of justice could not be used to set aside legal certainty as a basic guarantee of the rule of law.
As a result, the Act regarding the recommencement of the statute of limitation overstepped the limits of the State's criminal power. These were guaranteed rights, the restriction of which Article 8.4 of the Constitution did not permit, even if other fundamental rights could constitutionally be suspended or restricted. The constitutional guarantees of criminal law could be neither relativised nor balanced against some other constitutional right or duty since they already contained the result of a balancing act, i.e. the risk of unsuccessful prosecution was borne by the State. The presumption of innocence could not therefore be restricted or denied full effect because of another constitutional right: as a result of the State's inaction, once the time limit for prosecution expired the non-indictability thereby acquired was complete. Considerations of historical circumstances and justice could not therefore be used to gain exemption from the guarantees of criminal law since any such exemption would completely disregard those guarantees, a result precluded by the rule of law.
The Act was also contrary to the principle of the legality of criminal law. Articles 8.1 and 8.2 of the Constitution required offences, their punishment and the declaration of the criminality of an act to be regulated only by statute, and stated that the imposition of punishment had to be necessary, proportional and used only as a last resort. It followed from Article 57.2 of the Constitution, on the presumption of innocence, that only a court of law establishing the defendant's guilt could convict him and from Article 57.4 of the Constitution, that such conviction and punishment could only proceed according to the law in force at the time of commission of the crime. The court was therefore required to judge the offence and punishment in accordance with the law in force when the crime was committed unless a new law was passed subsequent to the offence which prescribed a more lenient punishment or decriminalised the act. This was the necessary result of the prohibition on retroactivity embodied in the principle of legal certainty (foreseeability and predictability) which, in turn, stemmed from the rule of law.
The reimposition of the possibility of criminal sanctions for a crime the statute of limitation for the prosecution of which had already expired was contrary to Articles 2.1 and 57.4 of the Constitution. With the expiry, the criminal responsibility of the offender was irrevocably extinguished and he acquired the right not to be punished since the State was unable to punish him during the period prescribed for the exercise of its punitive powers. It did not matter which method was used to reimpose the possibility of punishment (whether the statute of limitation recommenced or ex post facto legislation was imposed to suspend the statute) since their constitutionality had to be viewed in the same light as a law retroactively imposing punishment on conduct which, at the time of its commission, did not constitute a criminal offence.
The statutory extension of a statute of limitation which had not yet expired was also unconstitutional. According to law, the prosecuting authorities could suspend and recommence its running with regard to the offender without informing him with the result that the duration of the suspension extended the statute of limitation: this extended statute of limitation would then represent the minimum rather than the actual time required for termination of the offender's responsibility. Although the statute of limitation did not guarantee that punishability would be extinguished within the initially prescribed time frame, it did ensure the methods of calculating the time expired did not change in a manner detrimental to the offender: the State's punitive powers therefore had to be the same at the time of punishment as at the time of the offence. Consequently the extension of the as yet unexpired statute of limitation was unconstitutional since it would always impose a more onerous burden on the offender. Moreover, determination of whether or not the period had expired could not be decided retroactively by the legislature: no law could therefore retroactively declare that the period was suspended for reasons which the law in force at the time of the offence and during the running of the statute of limitation did not acknowledge as applicable to that criminal offence. The legal facts determining the commencement and duration of the statute of limitation had to exist throughout the duration of the period and what did not constitute a legal fact warranting the suspension of the period could not be declared so retroactively.
The incorporation of the condition that the statute of limitation recommenced "if the State's failure to prosecute was based on political reasons" into the Act was unconstitutional. Legal certainty required the predictability of the behaviour of other legal subjects as well as of the authorities themselves and the condition failed to satisfy this requirement since it did not allow for an interpretation which could be determined with sufficient certainty. Further the differentiation contained in the law allowed the re-enactment of the statute of limitation only for three of many non-prosecuted crimes and then only for non-prosecution of those three crimes based on political reasons: such differences could only be justified if Parliament sought to apply positive discrimination in favour of those offenders whose actions, while not covered, by it could have fallen within the scope of the Act. As the Act revealed no reason which could satisfy the constitutional requirement for positive discrimination, it was accordingly contrary to Article 70/A.1 of the Constitution.