Penal statute of the president of the French Republic

In French Right, the penal statute of the President of the Republic indicates the statute of the criminal responsibility President of the French Republic, with regard to the infringements which it could make in the performance of his duties, but also before with or out of its functions.

The justification of a derogatory statute to the common right

August 1st

It was always constant that the President of the Republic or the chief of the French executive profits from a derogatory situation.

Indeed, the President of the Republic was always the guaranteeing one of the continuity of the State. If it is the subject of a penal instruction, this continuity would be called into question.

Moreover, to make it possible to the penal jurisdictions to condemn the President of the Republic in exercise in front of the penal jurisdictions would make it possible for those to be involved in the exercise of the political power, which is prohibited by the Loi the 16 August 24th, 1790.

Constitutional and political history

IIe Republic

The II {{E}} Republic, in what it is mainly inspired by the Constitution of the United States of 1787, establishes a political responsibility and penal of the President of the Republic. The Constitution of November 4th, 1848 lays out thus, with its article 68:

The president of the Republic, the ministers, the agents and agents of the public authority, are responsible, each one in what relates to it, of all the acts of the government and the administration.
- Any measurement by which the president of the Republic dissolves the National Assembly, extends it or puts obstacle at the exercise of its mandate, is a crime of high treason| Constitution of 1848

The formation of the High Court of justice and the procedure in front of it are the subject of the articles 91 to 100 of the Constitution. In particular, article 100 lays out explicitly that:

The president of the Republic is justiciable only to the High Court of justice.
- It cannot, except for the case envisaged by article 68, being continued that on the charge carried by the National Assembly, and for crimes and offenses which will be determined by the law|Constitution of November 4th, 1848

One can thus observe on the one hand, that the Constitution of IIe République is clear and comprehensible, which is not necessarily the case in Ve République.

the crime of high treason is juridically defined: it is, within sight of the letter and of the spirit of the Constitution, a coup d'etat (having necessarily failed) which is sanctioned here.
the applicable procedure is defined: the high court is seized for the “crimes of State”, without call nor appeal to the Supreme Court, on the request of the National Assembly.

However, the spirit of this Constitution is different from that which one could find thereafter: establishing a balance of power, it is possible for the legislator to carry out, following the example what occurs to the United States, a procedure of impeachment , i.e. a criminal responsibility for the acts and the facts made in the exercise of the mandate of President.

However, this procedure could not have been applied, Louis-Napoleon Bonaparte having made a success of a coup d'etat on December 2nd, 1851.

IIIe Republic

The III {{E}} Republic, the President of the Republic has a particular penal statute. The constitutional law of February 25th, 1875 relating to the organization of the public authorities lays out, with its article 6:

The President of the Republic is responsible only in the case of high treason|Constitutional law of February 25th, 1875

It is supplemented by the article 9 of the law of February 24th, 1875 relating to the organization of the Senate.

The Senate can be made up in Court of justice to judge either the President of the Republic, or the ministers, and to know attacks made against the safety of the State|Constitutional law of February 25th, 1875

It is noted that this constitution of the Senate in “High court” is only suppletive. One can thus derogate from it, and it is what will be made at the time of the Procès of the marshal Pétain. Indeed, the lawsuit of Philippe Pétain is the only example of the real application of the penal statute of the President of the Republic.

The lawsuit of Pétain

It is on the base of the constitutional laws of IIIe République that Philippe Pétain was translated in front of the High Court of justice starting from the July 23rd 1945. Pétain is then shown of Atteinte to the state security and, of course, of Trahison.

This one was chaired by Mongibeaux, president of the Court of appeal, assisted of Donat-Guigue, chair Court of criminal appeal of the Court of appeal, and Picardy, first president of the Court of Appeal of Paris. 24 sworn parliamentary was present, primarily made up of deputies not having voted the full powerss with the Pétain Marshal, or being abstained. It is thus noticed that it is not the option of the Senate made up in Court of justice which was retained.

Mornet was the public prosecutor: honorary president of the Court of appeal, he was only magistrates present not to have lent oath to Pétain.

Pétain was not judged according to the common right, although the composition of this High court is similar to that of a special Court of Assizes “ ”. The number of sworn there is reinforced, but it is especially the quality of these sworn which precedes, since they are members of Parliament, resistant, which judges Pétain. In the species, one can doubt the character necessary of a High Court of justice, have regard to the manifest gravity of the facts which were reproached to him: a Court of Assizes of common right would have been enough. Moreover, it is to give to Pétain the quality of president of the Republic.

Pétain was condemned there to death, but the Général De Gaulle commuted this sorrow to prison with perpetuity, and he died in prison.

IVe Republic

The component of 1946 thus taken, following this tragedy event, the initiative to specify directly in the French Constitution the penal statute of the President of the Republic. Thus, article 42 of the Constitution of IVe République lays out:

The president of the Republic is responsible only in the case of high treason.
Il can be put in charge by the National Assembly and returned before the High Court of justice under the conditions envisaged at article 57 below| Constitution of 1946

Article 57 laying out, with its second subparagraph:

The National Assembly rules with the secret vote and absolute of the members composing it, except for those which would have to take part in the continuation, the instruction and the judgment|Constitution of 1946

The President of the Republic is then justiciable to the same manner that are to it the ministers. This similarity was broken only in 1993, with the institution of the Court of justice of the Republic.

Under Ve République: a fuzzy statute

Contain IX - The High Court of justice (Constitution of October 4th, 1958)

The weakness of article 68

The clearness of article 68 is only apparent. Guy Carcassonne thus could show that, according to whether it is considered that article 68 forms a unit, or if it is considered that the two sentences are autonomous between them, the interpretation who is retained by it changes completely.

If it is considered that the first sentence and the second form a unit, one from of deduced logically that the President of the Republic is responsible only for the crime of high-treason, who during the performance of his duties, and which before the High Court of justice.

If it is considered that the first and the second sentence are on the contrary distinct, the direction is radically different. It is concluded that the President is responsible only for the crime of high-treason in the performance of these duties, but which one can show it of any infringement made in these functions afterwards. Moreover, within sight of the second sentence, if it can be put in charge only by the High Court of justice, nothing says that it can put it in charge only for the crime of high treason, but also for other infringements which it could have made.

This contradiction presents a serious legal security issue, since according to interpretation that one gives some, the penal statute of the President changes radically. If a President of the Republic commits an offense during the performance of these duties, one will not be able, in the facts, to judge it, since no jurisdiction could be declared qualified.

The interpretation of the constitutional and legal judge thus appears necessary.

The Decision International penal court of the Constitutional council

Décision International penal court redirects here.

In its decision 98-408 cd. of January 22nd, 1999, relating to the statute of the International penal court, the French Constitutional council has in an incidental way given its interpretation of article 68:

The Constitutional council thus made a reading described as “autonomous” of the second sentence, and thus considered that article 68 laid down a privilege of jurisdiction to the profit of the President of the Republic. He can then be judged only by the High Court of justice, and this, only during his mandate.

The Breisacher stop of the Court of appeal

Arrêt Breisacher redirects here.

The Court of appeal, in its stop Breisacher returned by the Plenary assembly on October 10th, 2001, will have another reading of article 68. The Court limits the privilege of jurisdiction to the only high treason; the second sentence of article 68 does nothing but prolong the first sentence. The legal judge is, according to the Court of appeal, qualified for the acts achieved by the President apart from his functions, and for the former acts.

That does not mean however that the judge can convene the President, because as recalled by the Court: " close to article 3 and title II of the Constitution, article 68 must be interpreted in the sense that being elected directly by the people to ensure, in particular, the regular operation of the public authorities as well as the continuity of the State, the President of the Republic cannot, throughout its mandate, being heard like assisted witness, nor to be put in examination, city or returned for an unspecified infringement in front of a penal jurisdiction of common right ". The Court of appeal, legal jurisdiction, thus interpret initially the Constitution, which can pose a problem. But in the second place, the public action (and regulation) are thus suspended until the end of the mandate: a request for convocation must be regarded as inadmissible.

The Court clearly rejects the interpretation of article 68 of the Constitutional council, by considering that it is not held in the species by its decision. Article 62 of the Constitution however specifies that " the decisions of the Constitutional council are essential on the public authorities and all the administrative authorities and jurisdictional " , whereas the applicant considering that “the decision of the Constitutional council of January 22nd, 1999 which ruled on the constitutionality of article 27 of the bearing treaty statute of the International penal court does not have any authority of thing judged with regard to the penal judge”.

Concretely, the conclusion of the two Courses would be the same one: the President cannot be convened by an examining magistrate. But the base differs: for the Constitutional council, this judge is inefficient, then so that the Court of appeal, it is quite qualified, even if it cannot intervene.

The Commission April

Commission April redirects here.

The Commission April was a French Commission of twelve wise, chaired by Pierre April, which were consisted the Décret of July 4th 2002 and were invited by the President of the French Republic Jacques Chirac to formulate proposals on the penal statute of the Head of the State, following the interrogations on article 68, with the decision International penal court of the Constitutional council, and the stop Breisacher of the Court of appeal.

This commission proposes to institute a widened immunity of the presidential function, which suspends the continuations against the acts made before with the mandate and to the detachable Actes of the functions as well as measurements of obligation to appear in the capacity as witness when they are matched constraint by the police force. However immunity does not mean impunity; with the expiry of its mandate, the criminal prosecutions and civil against the Head of the State could be committed or continued with this fundamental guarantee that the terms of limitation are suspended during the mandate.

But work of the commission April and the constitutional project also bring an innovation: the high treason would be removed and replaced by “a failure with its duties incompatible with the exercise of its mandate”. It is thus a question of founding a responsibility for new policy in France.

Divorce

Have regard to its legal immunity, the President of the Republic can divorce, during its mandate, only by " assent mutuel" , in other words only procedure of Divorce not blaming any parts. For example, a Divorce for fault cannot be called upon against the Head of the French State, which is penally inviolable. Its statute becomes again that of a Citoyen lambda since its mandate is completed

The case of a Divorce of a President of the Republic in function recently ariseeed with the Divorce, the 18 October 2007, of Nicolas Sarkozy and Cécilia Ciganer-Albéniz, by mutual assent, as the presidential penal statute envisages it.

The constitutional reform of February 23rd, 2007

After a first attempt at reform by the means of a constitutional private bill presented in the Council of Ministers on July 2nd, 2003, the statute of the President of the French Republic was the subject of a constitutional reform, approved by the Congress on February 19th, 2007. It thus replaces title IX of the Constitution of 1958:

Unique article
Title IX of the Constitution is replaced by the following provisions:

“ TITLE IX
“ THE HIGH COURT
“ Article 67. - the President of the Republic is not responsible for the acts achieved in this quality, subject to the provisions of articles 53-2 and 68.
“It can, during its mandate and in front of no jurisdiction or French administrative authority, necessary being to testify either that to be the subject of an action, of an act of information, instruction or continuation. Any preclusion or term of limitation is suspended.
“The authorities and procedures to which it is thus made obstacle can be begun again or committed against him with the expiry of a one month deadline following the suspension of the functions.
“ Article 68. - the President of the Republic can be relieved only in the event of failure with his duties obviously incompatible with the exercise of his mandate. The dismissal is pronounced by the Parliament made up in High court.
“The proposal for a meeting of the High court adopted by one of the assemblies of the Parliament is transmitted at once to the other which decides in the fifteen days.
“The High court is chaired by the President of the National Assembly. She rules within one month, with secret bulletins, on the dismissal. Its decision is of immediate effect.
“The decisions taken pursuant to this article are it in the majority of two thirds of the members composing the assembly concerned or the High court. Any delegation of vote is prohibited. Only the favorable votes with the proposal for a meeting of the High court or with the dismissal are listed.
“An organic law fixes the conditions for application of this article. ”

The parliamentary debate

The original bill constitutional had been filed in it, while following the Commission proposal April. However, this project, filed in by Jacques Chirac, who has the constitutional matter initiative according to the article 89 of the Constitution of 1958, on a proposal from the Prime Minister. The bill constitutional had thus vocation to be presented by the Prime Minister Jean-Pierre Raffarin.

This project was not put at the day order commission constitutional laws, legislation and general administration of the republic that during the year 2006, and named Philippe Houillon like his rapporteur on October 18th.

In his report/ratio, Philippe Houillon, president of the Commission of the laws, consider, taking again Guy Carcassonne, that two readings of article 68 are possible, one “literal”, other the “analytical one”. The interpretation of the Constitution would thus be made very difficult by the existence of a “dilatory compromise”, “a compromise on the words which masks, on the bottom, of the contradictory intentions, born in the species from the history. ”. The definition of high-treason is also discussed, like its nature, penal, or political. The procedure is also criticized: the existence of a public ministry close the High-Court, ensured by the public prosecutor of the French Supreme court of appeal, of a charged commission of the instruction, ensured by 5 magistrates of the seat of the Court of appeal, the obligation of a committal for identical trial by the Senate like the National Assembly, confer, according to Philippe Houillon, “unquestionably on the procedure followed before the High Court of justice a jurisdictional character which maintains the blur the border between criminal responsibility and political responsibility of the Head of the State”. It thus becomes necessary to reform this statute and to put an end to this “ambiguity”, which is contrary with a “requirement of responsibility”.

For Mr. Houillon, it is necessary to protect the presidential function, in order to respect the principle of separation of the capacities and the continuity of the State. The responsibility for the President of the Republic could not be committed “for all the acts which it achieves to fill the duties with his load, qualified sometimes nondetachable acts of its functions”. This responsibility must be sanctioned by a dismissal, either for a crime of high-treason, connoted historically, but for a “failure with its duties obviously incompatible with the exercise of its mandate”, taking again the formula of the Commission April.

Evolution of the protection of the President of the Republic

August 1st

The nature of the responsibility for the President of the Republic: policy, or penal?

August 1st

Random links: