Imunitatea sefului de stat în fata instantelor penale din Europa si Statele Unite ale Americii. Studiu de drept comparat
Head of State Immunity before domestic criminal Courts from Europe and the United States. A Comparative Law Analysis

Summary/Abstract: This paper deals with the subject of head of state immunity in comparative and international law before domestic courts. Starting from the landmark – element of a domestic court being the forum involved, the analysis follows the immunity of head of state in comparative law, focusing on the major European continental legal systems (France, Belgium, Spain, Germany, Italy) and the most important commonal law ones (United Kingdom and the United States). The study underlines, as well, the manner in which these courts have applied international law dispositions in cases of foreign heads of states. First of all, the French system is examined, starting from the 1958 Constitution and its dispositions on head of state liability and immunity until the modifications from 2007. Besides the legal text analysis, the trial against the than sitting president Chirac is examined, this being the first trial against a head of state in France, since the trial against Pétain. The signifiance of the Chirac trial is underlined, as this was the major factor behind the 2007 modification of the French Constitution. From the perspective of international law, the case law of the French courts is presented in the cases of Gaddafi and Kabila. In the next section, following the above mentioned pattern, the constitutional provisions dealing with head of state immunity in monarchies are presented, namely, Belgium and Spain. Besides the legal text analysis, relevant aspects of the application and interpretation of international law aspects in the case law of Belgian and Spanish courts are underlined. The study continues with another exponential system from the European continental law system, Germany. The relevant legal provisions from the German Constitution are in-depth analysed, through a permanent connection with cases from the jurisprudence of the German constitutional courts, namely, the Honecker and Krenz trials. From the perspective of the foreign head of state immunity in the case law of the German courts, the focus is on the Honecker, Saddam Hussein, Videla and Jiang Zemin cases. Eventually, the last European continental law system presented is the Italian one. After the study of the provisions of article 90 from the Italian Constitution, the existence and scope of the substantive law immunity and of the controversial procedural immunity are determined. In the end, it is scrutinized the modality through which the Italian jurisprudence has applied the so-called „constitutional fair-play”, as proposed by the doctrine. In the follow up, the analysis moves on to some of the most important common law systems, Great Britain and the United States of America. After an overview of the particularities of the common law system versus the continental one in general and, more specifically with regard to head of state immunity, the statute of the sovereign on the domestic level in Great Britain is presented. The controversial aspects surrounding the Burell case are underlined in order to reach some conclusion regarding the immunity of the Queen. In the context of the American system, the analysis primarily focuses on the case law of the Supreme Court and its conclusions in the Johnson, Nixon and Clinton cases. A detail research is dedicated to the impeachment procedure, as well as to the impeachable crimes and the connection between the constitutional procedure and the usual one. In the end, due to the numerous cases involving foreign head of state immunity in international law before American courts, a special section is dedicated strictly to the study of this delicate issue.

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