The International Criminal Court and Criminal Liability of the President of the Republic in Bohemia, Moravia and Silesia

Zdeněk Koudelka, Associate Professor, Subdepartment of Constitutional Law and Political Science, Faculty of Law, Masaryk University, Brno, Chech Republic

The Constitution of Bohemia, Moravia and Silesia states that the President of the Republic is not liable in his function[1]; however, this provision shall be considered in context with other constitutional provisions. The mentioned provision is to be interpreted in that way that the president is not liable unless the Constitution states otherwise. The Constitution regulates a particular presidential liability for committing a high treason[2].

The President is usually privileged to be judged by a special court, which is either the upper house of the parliament, a special state court, or a constitutional court. Such a court is competent not only to handle high treason proceedings, but also some other violation of law committed by the president on condition that the president is liable for them. This privilege is quite comprehensible because every liability of the president is necessarily of a political nature[3]. Courts are more suitable for judging the president than the parliament, where the members of the parliament often take their decisions under a strong political influence in such cases. This is especially true of parliaments with strong party discipline that do not decide according to facts and legal conclusions, but according to the standpoint of the party leaders.

The President has sometimes been denied the right to his peculiar political standpoint with reference to his alleged non-liability. The Constitution shall be interpreted as a whole while pointing at a constitutional provision dealing with the non-liability of the president. The President is constitutionally liable for committing a high treason, and the Constitutional Court is competent to remove him from the presidential office. On the contrary, the Constitution sets forth that the Government is liable because it is dependent on the majority in the Chamber of Deputies. Nevertheless, if the Government acts unlawfully and disposes of obedient deputies, it will stay in power. On the contrary, if the government is the best possible but loses the majority in the Chamber of Deputies, it will fall. The ministers who are deputies at the same time will be liable for unlawful conduct only provided that the government loses the majority of the deputies. Should the government stay in power, the liability is out of question. Leaders of the political parties bind their deputies to support the government, and they are not going to deprive one another of the legislative immunity.

It is crucial to distinguish between the political liability, which does not involve a legal sanction, and the legal liability, where the possibility of a punishment occurs. In times of monarchy, each of the parliament chambers was entitled to accuse the ministers within the State Court[4]. In Czechoslovakia during 1920-1960, the parliament was entitled to judge the members of the government, to impose a pecuniary punishment on them and to send them to prison for its non-payment[5]. In the past, the British parliament[6] not only removed some deputies from their office and deprived them of their property, but also let them be beheaded. Jan Svatoň states that with reference to a longstanding non-use of this right and with reference to a legal custom as a British source of law, the legal liability of ministers ceased to exist, and in 1841 a political liability developed instead[7]. However, this question is still to discuss because Svatoň himself gives an example of dissolution of the House of Commons by the king in 1784 after a longstanding non-use of the institution of dissolution of the House[8]. In Belgium[9], Denmark[10], Finland[11], France[12], or Austria[13] members of the Government are judged by special courts in which sometimes the deputies do sit. The legislative immunity does not cover the legal liability of the members of the Government.

In the Czech Republic, there is a possibility to remove president from his position due to his unlawful conduct. Therefore, the President has freedom to decide how to use his constitutional competences in order to keep his constitutional commitment and to execute his competences in the interests of the state. Leaving out the constitutional provision on the non-liability of the president is correct. Nevertheless, a more important move seems to be the enactment of legal liability of the members of the government for committing a high treason.

Jaroslav Krejčí holds both the political and legal liability to be a suitable measure while the presidential competences are being strengthened. Krejčí suggests that the political liability should be put into effect by the possible removal of the president by the people. Such a removal should be initiated by the parliament, as it was done in the Weimar Republic[14]. Should the people not accept the proposal to remove the president from his office, new term of office for the president and dissolution of the House of Deputies would be the next step. This measure secures the president from obviously unjustified proposals[15]. The same way of political liability and removal of the president from his office by the people exists in Slovakia[16] and Austria[17] as well. Besides, the possibility of re-election is sometimes considered as a sign of political liability. A President who wishes to be re-elected should exercise his powers considering his good re-election expectations . Nevertheless, Jaroslav Krejčí does not consider it to be a sign of political liability. According to Krejčí, the right to remove president from his office within his election period without his acting unlawfully shall be considered as a sign of political liability[18].

The Rome Statute of the International Criminal Court and the Czech Constitutional Order

The Statute introduced international liability for the crimes of genocide, crimes against humanity, war crimes and crime of aggression[19] including the liability of a head of state[20]. The International Criminal Court in Hague, Netherlands, has jurisdiction over these matters. On July 08, 2009, the Czech President Václav Klaus ratified the Rome Statute of July 17, 1998; however, the consent with the ratification of the Statute had been expressed by the former president Václav Havel. Both chambers of the Parliament approved the Rome Statute by the 3/5 majority of votes as a treaty pursuant to Art. 10a and 39/4 of the Constitution[21]. It is questionable if the treaty conforms to the Czech Constitution on the issue of the immunity of the president. The government as a submitter stated in the explanatory note that an international treaty pursuant to the Art. 10a of the Constitution may amend or supplement the constitutional order, although formally it is not a substituent part of the constitutional order. Václav Klaus did not approve of this standpoint and pointed out the first judgment of the Constitutional Court concerning the constitutionality of the Lisbon Treaty on European Union[22].

The standpoint of the former governments was that before the Rome Statute is ratified, a few amendments of the Constitution must be passed (concerning immunities of some public officials, competences of the president to grant individual pardon and general pardon and concerning the prohibition to force the state citizens to leave the country)[23]. The standpoint of the president was grounded because international treaties have priority over common acts, but these are not a part of the constitutional order. International treaties do not take priority over constitutional acts, but only over common acts. Due to the aforementioned fact, constitutional acts take priority over international treaties in case of a contradiction. The discussed case presents that the constitutional regulation of the immunity of the president takes priority over the commitments to the International Criminal Court, which, however, also applies to other constitutional officials whose immunity is regulated on the constitutional level. This rule does not apply to the ones whose immunity is regulated by a common act[24]; in such cases the Rome Statute would be applied[25].

The aforementioned facts were the reason why the president originally tried to postpone the ratification; he ratified it after more than eight months. The reservations of the president concerning the ratification of the Rome Statute of the International Criminal Court[26] were published by the Department of Legislature and Law of the Office of the President of the Republic.

Jiří Malenovský holds international treaties according to Art. 10a of the Constitution for acts on a constitutional level[27]. The author does not agree with this opinion because international treaties, regardless of the domestic procedure of their approval, have priority only over common statutes; they do not dispose of the constitutional legal force. International treaties are not a part of the Czech constitutional order. Should international treaties have the constitutional legal force, then the Constitutional Court review, according to Art. 87/2 of the Constitution concerning their constitutionality, would be useless. An international treaty with the constitutional legal force would indirectly amend the Constitution, and no controversy would occur. The reason for the constitutional review is to prevent the ratification of an international treaty which would contradict the Constitution. This incompatibility could be put right only by an express amendment of the Constitution; an alternative is to adapt an international treaty by transforming it into the constitutional order in the form of a special constitutional act. The Constitutional Court expressly adds to this,

„In the case of a clear contradiction between the Czech Constitution and the law of the European Union, the Czech constitutional order, especially its material core, takes priority“[28].

It is to point out that the European Union law also comprises the primary law, which is treaties ratified by the president after the consent given in a referendum or given by a constitutional majority in the Parliament according to Art. 10a of the Constitution. In spite of the fact that the author of this contribution rejects the theory of the material core of the Constitution which only serves as a tool to usurp power by the Constitutional Court[29], the standpoint is acceptable because the Constitutional Court considers the priority of the constitutional order as a whole, not only as priority of the material core. Nevertheless, there is a case of unconstitutional use of the concept of material core by the Constitutional Court when it applied the concept of material core to international treaties[30]. Jan Kysela adds to this:

„The constitutional order cannot be implicitly amended by an international treaty pursuant to Art 10a of the Constitution“[31].

Conclusion

An international treaty takes priority over a common act but not over a constitutional act in the legal order of Bohemia, Moravia and Silesia. Therefore, the provisions of the Rome statute on liability of public officials shall not be applied if they contradict the constitutional order. The president is liable only for committing high treason on the basis of an action of the Senate before the Constitutional Court. The Czech Republic cannot extradite the president for prosecution to the International Criminal Court. However, facts of crimes pursuant to the Rome Statute can accomplish the facts of high treason, because in such a case there appears to be conduct against the democratic order that protects fundamental rights of other persons.

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