Is the recent Russian sanctions Regulation a violation of the nullum crimen principle or a legal necessity?
In the aftermath of the 24 June 2024 introduction of Council Regulation (EU) 2024/1745, which delivered the 14th set of sanctions against Russia for its invasion of Ukraine, a debate is underway whether its instruction to prosecute both intentional and negligent violations of the sanctions is a necessary step to ensure compliance or a violation of the principle of legality, specifically nullum crimen sine lege.
Background
According to Hungarian criminal law, any person who violates any economic, commercial or financial restriction ordered in regulations adopted under Article 75 and Article 215 of the Treaty on the Functioning of the European Union commits the crime of violating an international economic prohibition, which is punishable by imprisonment for a term of one to five years.
The Hungarian Criminal Code defines the above offence as an intentional crime, which is to say that the perpetrator is punishable only if the violation was clearly foreseen, and the perpetrator specifically strives for this violation to happen or accepts the outcome. The Hungarian statutory provision does not provide for the punishment of negligent acts.
EU Regulation 2024/1745
However, the Council Regulation (EU) 2024/1745 under 215 of the TFEU amending Council Regulation (EU) No. 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, seems to provide for the possibility of prosecuting not only intentional, but negligent violations.
According to the newly amended Article 12 of the Council Regulation, “it shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent prohibitions in this Regulation, including by participating in such activities without deliberately seeking that object or effect but being aware that the participation may have that object or effect and accepting that possibility.”
In view of the amended Article, it appears at first glance that because the EU legislation, which essentially renders the negligent commission of an intentional crime punishable, conflicts with domestic Hungarian criminal legislation that does not prosecute the negligent form the crime, the principle of legality (i.e. the principle of nullum crimen sine lege according to which there is no crime without a law adopted by the highest domestic legislative body) may be violated.
The reason is that in Hungary, the principle of legality explicitly applies to the field of Hungarian criminal law and is enshrined both in the Hungarian Criminal Code and in the Hungarian Funamental Statute.
If a person negligently participates in activities that may have an effect of circumventing prohibitions in the regulation, the question arises whether such an EU rule could then be directly invoked before Hungarian criminal courts and whether a person could be found guilty of the negligent commission of an offence characterised in the domestic legislation as exclusively intentional.
According to the prevailing scientific literature, although the regulations of the EU are directly applicable and enforceable under Hungarian law, by themselves they cannot create a “new” offence unless the national legislator adequately incorporates them into domestic law. Furthermore, when incorporating EU law into national law, national legislators must consider their national legal traditions and principles.
In the light of the above considerations, one may conclude that the newly amended Article 12 of the EU regulation is not capable of extending the scope of the originally intentional offence of violating an international economic prohibition to negligent actions, thus requiring appropriate Hungarian legislation. The question remains whether Hungarian authorities will endorse this interpretation, which does not allow EU regulations to directly extend the scope of a domestic criminal provision, or will they rely on the principle of the supremacy of EU law in a bid to prosecute those whose actions circumvent prohibitions through negligence?
Since it cannot be foreseen what the attitude of Hungarian law enforcement, prosecutorial and judicial bodies will be to the newly amended EU legislation, a cautious approach is required from corporations and their representatives who are active in areas affected by the EU regulation. Extra vigilance is recommended when performing activities in the impacted landscape.
The article was co-authored by Martin Kocsó.
For more information on how this regulation might affect the activities of your Hungary-based business, contact your CMS client partner or these CMS experts:
