2008 | 6(89) | 71-86
Article title

CRIMINAL RESPONSIBILITY OF THE PRESIDENT OF THE FIFTH FRENCH REPUBLIC (Odpowiedzialnosc karna prezydenta V Republiki Francuskiej)

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The significance of the issue of President's responsibility grows with an increasing role of his office in the practice of operation of the national system of government. The strong position of French President and his political authority has been firmly established in the history of the Fifth Republic. President's responsibility is regulated by Article 68 of the Constitution of 1958. Despite interpretative disputes among theoreticians, the matter has not attracted attention of practitioners until the presidency of Jacques Chirac. Then, a doubt was raised whether during the exercise of the function of a head of state, he could be heard as a witness in relation to matters taking place before assuming the office. The decisions of the Constitutional Council and the Court of Cassation (Cour de Cassation) did not provide unequivocal answer to this question, and this was the reason for the change of criminal-law status of the President. On the basis of the amendment of the Constitution of 1958, adopted by the Constitutional Act of 23rd February 2007, a peculiar model of Presidential responsibility, called an institutional responsibility, was created. This model established the possibility, hitherto unknown to the French law, of removal of the President from office (destitution). The key element underlying the constitutional reform was a strong conviction that, from the moment of his election, the President ceases to be an ordinary citizen/subject to trial (n'est pas un citoyen/justiciable ordinaire). This is so because the President of the Fifth Republic, elected in universal and direct election, is the highest representative of the Nation and guarantor of existence of the State. For this reason, the President cannot be held responsible (irresponsabilité) for the activities carried out in his official capacity, except for acts subject to jurisdiction of the International Criminal Court (Article 53-2 of the Constitution) or incompatible with the dignity of his office (Article 68 of the Constitution). As concerns other activities undertaken either before assuming the function or during the exercise of the office, but unconnected with it, any proceedings to which the President would be a party are prohibited during the period of the holding of office by the President (inviolabilité). Of special importance is the place reserved in this model for the sovereign who assesses the performance of the duties by the head of state, initially, by its representatives and then, in direct elections. Under the political system of the Fifth Republic characterized by a strong Presidency the scope of non-responsibility (irresponsabilité) is to be determined by the Nation which have the final say.
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  • Katarzyna Kubuj, Instytut Nauk Prawnych PAN, ul. Nowy Swiat 72, 00-330 Warszawa, Poland
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