PRESIDENT Christofias may sleep soundly at night in the knowledge that no one can force him to resign – but he could face the music once he becomes a civilian, circa 2013.
He has roundly come under fire for refuting the conclusions made by Polys Polyviou in his probe into the Mari blast, which put the responsibility firmly at the feet of the president.
Since they were announced on Monday there have been repeated calls for Christofias’ resignation but he says he has no plans to do so.
Under the Constitution, the President of the Republic is immune from prosecution as well as from civil action during his term of office.
Article 45 states that the President shall not be liable to any criminal prosecution during his term of office, except for the charge of high treason or of moral turpitude.
Moreover, the Attorney-general and no one else has the means to lift the President’s immunity during the latter’s term in office.
Regarding offences involving dishonesty (e.g. theft) or moral turpitude (rape, molestation), the President may be prosecuted after the Attorney-general petitions the Supreme Court.
In either case, the Supreme Court must give its assent to the Attorney-general to have the President’s immunity lifted – but again, only for the two aforementioned types of offences.
Now if the head of state were to, say, accidentally run over and kill a pedestrian he could end up in the dock, but only after he ceases to be President.
The same article notes that the President “shall not be liable to prosecution for any offence committed by him in the execution of his functions but he may be prosecuted for any other offence committed during his term of office after he ceases to hold office.
Moreover, no action shall be brought against the President in respect of any fact or omission committed by him in the exercise of any of the functions of his office.”
To sum up, the President cannot be either prosecuted or sued while he’s running the country, but once he re-enters civilian life he is liable for breaking the law at the time he was President.
In the unlikely event that President is prosecuted for high treason or offences involving moral turpitude, he or she “shall be suspended from the performance of any of the functions of his office.”
Article 45 adds: “The President on any such prosecution shall be tried by the High Court; on his conviction his office shall become vacant and on his acquittal he shall resume the performance of the functions of his office.”
What’s more, the office of the President of the Republic becomes vacant: upon his death; upon his written resignation addressed to the House of Representatives upon his conviction for high treason or any other offence involving dishonesty or moral turpitude; due to a “permanent physical or mental incapacity or absence, other than temporary, as would prevent him to perform effectively his duties.”
In the event the office of the President remains vacant, the vacancy “shall be filled by a by-election which shall take place within a period not exceeding 45 days of the occurrence of such vacancy.”
Bottom line: only the Attorney-general can prosecute the President or force his resignation by threatening to lift his immunity.
And while many hold Christofias responsible for the Mari disaster that led to the deaths of 13 people, some of the victims’ families are reportedly considering suing the President for criminal negligence.
One family, that of a naval officer killed in the blast, are suing the Republic for over €2 million in damages. Though the lawsuit names President Christofias as responsible for the events of that day, Christofias is not personally liable.
According to lawyer Dinos Paspalides, the President becomes liable only after he has left office.
And even if a family should later decide to take Christofias to court accusing him of the crime of criminal negligence or manslaughter, this can only be done through the Attorney-general’s office – as for example in the case of the Helios air crash.
In the wake of Mari report released Monday, a lot has been said the President’s criminal or civil liability.
Yesterday, a group belonging to the “Indignant Movement” said it would petition parliament to lift the President’s immunity. They also gave politicians a week to deliver, and if not they will hand in their electoral books.
But as lawyer Pavlos Angelides explains, parliament on its own can do nothing to cause the President’s immunity to be lifted.
“It’s a misconception. Only the Attorney-general can do such a thing, and even then, only for offences involving high treason or dishonesty,” Angelides said.
He said charges of criminal negligence or manslaughter are unrelated to offences of the type of high treason or moral turpitude, “no matter how far you want to stretch it.”
The report by Polyviou recommends that the Attorney-general consider the possibility of various crimes having been committed, including that of criminal negligence, causing death through a rash and reckless act, as well as the crime of manslaughter.
This has led to a great deal of speculation on whether Polyviou had the President in mind as well.
Paspalides stresses, however, that Polyviou’s was not a criminal investigation: “the criteria are different. In the Mari hearings, the investigator [Polyviou] did not require hard proof to form an opinion. But in a criminal case, the criteria are far stricter: here, you need to prove guilt beyond a reasonable doubt.
“For instance, when Defence Minister Costas Papacostas and Foreign Minister Marcos Kyprianou told Polyviou that Christofias knew the munitions were hazardous, and when Christofias does not refute this convincingly, then Polyviou tends to believe the former two. But that’s not how it would work in a criminal case.”
