MILITARY JURISDICTION IN HUNGARY AT THE TIME OF THE DUALISM (1867-1918) ROLAND KELEMEN MILITARY JURISDICTION IN HUNGARY AT THE TIME OF THE DUALISM (1867-1918) Published by Hungarian Society for Military Law and Law of War Budapest, 2017 Proofreading by Richárd Németh This book was materialized in the frame of the programmes of the Hungarian Ministry of Justice aimed to raise the standard of legal education. The printing of this book had been made available by the support of the Ministry of Defence to the Hungarian Society for Military Law and Law of War. Copyright © 2017 by Roland Kelemen All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, mechanical, electronic, photocopying, recording or otherwise without the prior written permission of the Publisher and the Author. Publisher in Chief: Dr. Pál Kádár PhD. brigandier general Cover art copyright © 2017 by Richárd Németh Editor: (név) ISBN 978-615-00-0837-0 For my childhood friends; Ricsi, Tibi, Zoli and Zsolti. „In one hand the special nature of the army, which is manifested in the strict discipline, and in the other hand the special spirit of the military order which leads to a perception of honour differs from civil honour, are requiring the creation of a different military criminal code and setting up a different military penal authority.”1 1 BALOGH, Arnold (1902) 'A franczia katonai igazságszolgáltatás reformja [The Reform of the French Military Jurisdiction]', Jogtudományi Közlöny, Vol. 48, p. 408. TABLE OF CONTENTS The Author’s Preface ......................................................................... 9 I. Snapshots of the Dualist Hungary – The Position and Role of the Criminal Law and the Military Criminal Law in the State of the Monarchy ..................................................................................... 13 1. Social, Economic and Political Conditions at the Time of the Monarchy ............................................................................................ 14 2. The Hungarian State in the Time of Dualism – The Place of the Military Law and The Military Criminal Law in the Dualist State ............ 20 II. Military Criminal Jurisdiction From the Compromise to the National Legislation............................................................................ 31 1. The Issue of the Military Jurisdiction Before the House of Representatives (1867-1903) ................................................................. 31 2. The Regulation of the Organization and Competences of the Military Jurisdiction From 1867 to the Belle Époque .............................. 45 3. The Military Criminal Jurisdiction in the Years Before the National Legislation........................................................................................... 57 3.1. The Supreme Judicial Authority ...................................................... 58 3.2. The Scope of the Military Criminal Procedure .................................. 60 3.3. The Organisational System of Military Jurisdiction........................... 63 3.3.1. The Disciplinary Punitive Power ........................................ 64 3.3.2. The Peacetime Organization of Military Jurisdiction ............ 67 3.3.3. The Nature of the Mobile Courts ........................................ 72 III. The First Hungarian Military Criminal Prosecution – Imbalanced National Legislation in the Field of the Military Criminal Law ..................................................................................... 74 1. Road to the National Legislation ........................................................ 75 2. The Press Coverage and the Parliamentary Debate of the Military Criminal Prosecution ........................................................................... 89 3. The System of the Military Criminal Proceedings (Law Articles XXII –XXXIII of 1912) .......................................................................... 108 3.1. The Scope of the Honvéd Military Criminal Prosecution ................... 112 3.2. The Proceedings and the Organization of the Hmcp .......................... 117 3.2.1. The General System of the Military Criminal Jurisdiction (Peacetime System) .................................................................... 124 3.2.2. Rules of the Instant Judgment According to the Hmcp ......... 136 3.2.3. Rules Concerning the Arbitration of the Armies in the Field According to the Hmcp ...................................................... 139 4. Legislation of World War I. Involving Military Jurisdiction ................. 141 Closing Thoughts................................................................................ 151 MILITARY JURISDICTION IN HUNGARY AT THE TIME OF THE DUALISM 9 THE AUTHOR’S PREFACE Military Judge Gyula Gerő put the following thought on paper in 1907: „the literature of the Hungarian military criminal law is a poor plantation”. Military Judge Arthur Szilágy went so far he said that the military criminal law is the stepchild of the jurisprudence. It is a question of fact that only two comprehensive works were made about those days’ military criminal law until the early twentieth century, in 1888 from the pen of Military Judge Kálmán Pap – who tried to summarize the topic in a really detailed way, handed over his own practical experience – and the above mentioned thesis was published by Arthur Szilágy in 1896. However, if we look at the legal literature of the Belle Époque, we could see that a large amount of studies were published about each institutions of the evolving new legislations in parallel with the codification of the military formal law. The studies of Károly Edvi Illés, an excellent criminalist of the era, must be definitely emphasised; these reflected on each issues of the renewing legislations very well. Also Ödön Szentirmay, judge of the Curia, author of high quality studies, has proven to be productive; he examined certain institutions of the military criminal law in force and also undertook a historical outlook. Beside them László Mendelényi, Alfréd Dolenschall and Gyura Gerő also tried to introduce the military criminal law’s area with many publications. The work of Military Judge Jenő Apáthy in the time of the First World War is extremely outstanding. From his studies we can get to know the judgment for armies in field in Serbia occupied by the army of the Monarchy; he introduced the concept and the highlighted necessity of leading cases in the context of military judgment. His works from 1918, in which he collected the leading cases of the Supreme Honvéd2 Court are really significant and stopgap – it is still hard to find such things in the examined area. Seeing the specialty of the Hungarian forces came from the common army he also introduced the possible deviations from the leading cases of the Monarchy’s other high level military courts in this books. 2 Since there is no unified English name for the Hungarian term ’honvéd’, I will use the original Hungarian word, because it is important to preserve its core meaning; ’honvéd’ is a compound word created from the homeland (hon) and the defending (véd) parts (’defenders of the homeland’). The full name of the army is Magyar Királyi Honvédség; in English: Royal Hungarian Honvéd Army (the inverted word order is intentional; contemporary chronicles mainly used this phrase for the Hungarian part of the Common Army). 10 MILITARY JURISDICTION IN HUNGARY AT THE TIME OF THE DUALISM Emil Schultheisz, Ferenc Cziáky, László Jilly and Nándor Levente were also military criminalists must be highlighted from the following decades. Emil Schultheisz left his mark mainly in the area of military substantive law; besides, certainly, he examined procedural law issues in many of his studies. The “A katonai büntetőtörvénykönyv magyarázata [The Explanation of the Military Penal Code]” published in 1931 is a unique creation of the area. His book, the “A katonai büntetőtörvény zsebkönyve [Pocket Book of the Military Penal Code]” from 1943 is also significant. In addition to his activity as a publicist, it is remarkable that László Jilly participated in the editing of the defence justice column of the Magyar Katonai Közlöny for years. Just like in the case of Schultheisz, his annotations were also published for the military criminal code in 1933. His publication, “A katonai igazságszolgáltatás jelentősége és szükségessége békében és háborúban [The Significance and Necessity of the Military Jurisdiction in the Time of War and Peace]” can be considered as an epochal work. Ferenc Cziáky was the first, who started to investigate the military criminal law in a monumental, historical way; his book of 1924 remained a reference basis for researchers in this area until present day. Nándor Levente is one of the most prominent scientists with his award winning work about the jurisdiction of the armies in field. János Habony’s work published in 1977 from the period of the state socialism titled as “A katonai bíróság előtt [Before the Military Court]” can be highlighted because of its significance in the examined area, and we also have to mention his creation titled as “"Büntetőjogi ismeretek új kézikönyve – A fegyveres erők hivatásos állománya számára [New Pocket Book of Criminal Law Knowledge – For the Professionals of the Armed Forces]”. From this era, Zoltán Kovács’s work is also notable, whose book with the title of “A katonai büntetőjog kézikönyve [The Pocket Book of the Military Criminal Law]” printed in 1958 is also