The issue of limitation in the context of transitional justice

Abstract

The present study aims to present the difficulties of transitional justice in Hungary following the change of systems. Following the regime change, it was a legitimate need in a substantial part of society in Hungary to punish the main perpetrators of the previous communist dictatorship for the crimes committed by them, either symbolically or actually. This type of ‘punishment’ may take place in a democratic society in two ways: either because of a political decision, or in the form of prosecution by a court. From the 1990s onwards, Hungarian decision-makers were characterized by the absence of ability to cope with the question. In my study relating to the statute of limitation, in addition to the description of the concept of limitation and the applicable Hungarian regulation in force, on the one hand I introduce those crimes which are not subject to the statute of limitation under international law, on the other hand I present the different approaches of the question of suspension of the limitation period in some successor states in order to determine and provide a solution to whether the statute of limitation could have been a real obstacle to criminal accountability. In this context, my study addresses, among several other issues, the breakthrough of the prohibition of retroactive effect, the issue of limitation and the question whether there is a need for transitional justice at all. The problem of limitation in connection with the historical justice arises in the fact that, although the current Hungarian legislation in force is aware of the concept of crimes which were not subject to the statute of limitation, however, during the darkest period of the communist dictatorship, such a concept did not yet exist in Hungarian law. The Hungarian laws in force in the 1950s did not yet recognize the category non-obsolete crimes, Thus, for example under Article 25 of the Compilation of Substantive Criminal Law (Act II of 1950) in force in 1956, the limitation period for acts threatened with death or life imprisonment was only 15 years, which, however, ceased to be punishable. In my opinion, which can be considered as one of the results of my research, in the absence of a mandatory legal background similar to German or Czech, it is a special legal reasoning that can justify the lack of limitation, the rules of which are presented in detail in my study. This is the legal reasoning on the basis of which the accountability of former party leaders could have been established under both domestic and international law. That is the legislative reasoning based on which – contrary to the decision of the Constitutional Court – in my opinion, legal liability would (would have been) take place, regardless of the fact, whether it was a plea or in the context of a traditional criminal proceedings.