Elévülés? Visszaható törvényhozás? : Csapdahelyzet és jogtechnikai semlegesség a jogban

Varga, Csaba (2012) Elévülés? Visszaható törvényhozás? : Csapdahelyzet és jogtechnikai semlegesség a jogban. IUSTUM AEQUUM SALUTARE, 8 (1). pp. 103-115. ISSN 1787-3223

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Abstract

PRESCRIPTION? RETROACTIVE LEGISLATION? Traps in Law and the Neutrality of Legal Technique Eventually, the new Transitory Rules to the Basic Law Art. 2/1 excludes presciption for those “crimes specified by the law and committed against Hungary or persons in the name, interest or consensus of the party-state during the communist dictatorship which, running counter the criminal law in force at the time of the deed committed, were not prosecuted for political reasons”. In its execution, the Law No. CCX of 2011 specifies the circle of both the deeds and those who may have committed them as to be considered within the former provision. As the paper’s argument holds, any such posterior declaration by the legislator is only legitimate when drawing Ernst Fraenkel’s classical line between two sides of the same dictatorial state: the normal one with prescription period passing on and the abnormal one when the state degenerated into criminal perpetrator where prescription cannot even begin. Accordingly, specification ought not to involve further selection from within the latter’ domain, for it would necessarily embody legal policy consideration with the strive for its retroactive validation. At the same time it is to be noted that the line between retro- and pro-activity so much as the prohibition of analogy in criminal and tax matters with the underlying principles of nullum crimen/nulla poena sine lege are elevated to almost catechistic heights exclusively in Europe, as an after-effect of feudal miserability once caused by the abusive practice of Christian princes as absolutistic monarchs, only broken by the French revolution. Albeit as means–even if counter proposed mostly for their in-built technique–they are neutral, can serve various ends, and are to be justified as a curative measure especially when former legislation is systematically abused. Or, as the old sagesse holds, the instrumental principle of »lex non reagit« may not prevail over the fundamental validity of the tenet »salus rei publicae suprema lex esto«.

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