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From what I understand so far, heads of state generally enjoy immunity from prosecution from the judicial system throughout the duration of their term of office.

To give particular examples, Elizabeth II is immune from prosecution in the United Kingdom, (although this protection does not extend to other members of the Royal family) and the impeachment of President Trump demonstrates the rigmarole of holding the head of state of the United States to account.

Firstly, what is the justification of such a protection? Especially in democracies such as the US and the UK, it seems to me to be counterintuitive that any citizen may be seen as above the law.

Secondly, are there any countries where the head of state is not immune, and in particular, have there been any cases where a head of state has been successfully sentenced while still in office?

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    It is disputable whether the President of the United States is immune from prosecution. There is nothing in the Constitution that sets out such immunity, and this claim of immunity has never been tested in the courts. – Joe C Dec 20 '19 at 21:23
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    Also, a US President is immune (if indeed s/he is) only during the term of office, and could be prosecuted for illegal acts after leaving office. This was actually planned for Richard Nixon after he resigned, but Ford granted him a Presidential pardon - something that IIRC was fairly controversial at the time. – jamesqf Dec 21 '19 at 5:13
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    Elizabeth II is the queen of the United Kingdom, Australia, Canada, New Zealand, and 12 other Commonwealth realms, but she isn't a citizen of any of them. – Peter Taylor Dec 21 '19 at 15:44
  • @PeterTaylor Do you have a source for that? It’s my understanding that she is a British citizen, as she was born in the country, but not a subject, as it doesn’t make sense for her to be a subject of herself. – CDJB Dec 21 '19 at 15:49
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Three different explanations, which mix to different degrees:

  • A holdover from feudal times.
    The Queen graciously allows her subjects to have a parliament, and she summons it to tell them what she wants her government to do in the next term. At least formally. We all know who wrote that speech.
    Similarly, the sovereign cannot be arrested by her subjects. Why, that would be a revolution.

  • Immunity for official acts, not private ones.
    In many systems, a head of government could be arrested for drunk driving, or embezzlement, or similar acts done in a private capacity, but not if he or she was acting in an official capacity. The legal remedies for that are different.
    The EU advocate general just decided that German provincial officials may not be imprisoned for contempt of a court when they fail to implement a court order, instead the court can/must fine the provincial government. So the taxpayer pays a fine to the taxpayer.

  • Parliamentary immunity.
    There is a long tradition of having members of parliament immune from prosecution unless the parliament makes an exception to allow it. This is to stop a tyrannical government from simply arresting most of the parliament until they like the remaining majorities. In parliamentary systems, the head of government is often also a member of parliament.
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    Parliamentary immunity is also sometimes justified by avoiding distractions from an important rôle. Compare the Spanish system of aforados: members of parliament can only be tried by the Supreme Court, so if they are tried there will be no appeals to keep the matter dragging on. – Peter Taylor Dec 21 '19 at 15:48
  • Re the Queen: "In constitutional monarchies the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by them as they were created by the sovereign for the protection of his or her subjects." (source). And in the UK, criminal cases are "The Queen vs..." (written as "R vs..."). Admittedly, there is a distinction here between the Queen and the Crown, but the point still holds. – Steve Melnikoff Dec 23 '19 at 9:29

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