1. Introduction
1. This draft report reviews the honouring of the obligations
and commitments made by the Principality of Monaco on joining the
Council of Europe on 5 October 2004.
2. In March 2005, in accordance with Resolution 1115 (1997) setting
up the Monitoring Committee and
Opinion 250 (2004) on Monaco's application for membership of the Council
of Europe, the Committee appointed two co-rapporteurs, Mr Pedro
Agramunt (Spain, EPP/CD) and Mr Leonid Slutsky (Russia, SOC), to monitor
the situation in Monaco. They undertook four fact-finding visits
in all to the country and presented a first report to the Assembly's
June 2007 session on behalf of the Monitoring Committee, which led
to the adoption of
Resolution
1566 (2007) on the honouring of obligations and commitments by Monaco.
3. In connection with the preparation of this second monitoring
report, the co-rapporteurs visited Monaco in October 2008 then in
July 2009 to assess progress in implementing
Resolution 1566 (2007). The Monegasque authorities’ display of full and wholehearted
co-operation allowed a great deal of information to be gathered
for this report. We thank the Monegasque delegation for the excellent
organisation of this visit and Ms Karine Marquet, Secretary to the
parliamentary delegation of Monaco’s National Council, for her invaluable assistance
and co-operation.
4. The preliminary draft report on Monaco's honouring of its
obligations and commitments was examined by the Monitoring Committee
at its meeting in January 2009 then sent to the Monegasque authorities
for comment within a maximum period of three months. On 5 June 2009
the Monitoring Committee considered the comments by the various
parties or coalitions of parties represented in the National Council,
and by the Government of the Principality.
2. Franco-Monegasque
treaties and Council of Europe conventions
2.1. Co-operation treaties
with France
5. The Convention signed in November 2005 "to adapt
and develop administrative co-operation between the French Republic
and the Principality of Monaco",
which replaced the 1930 convention,
was finally ratified by the French parliament in June 2008. The
new agreement, which was applied by the two countries even before
ratification, enables Monegasque nationals to fill all posts in
their country's civil service, including the most senior ones, in
particular the offices of Minister of State, Government Counsellor
for the Interior, Director of Judicial Services, Director of Public
Safety and Director of Fiscal Services, which under the 1930 convention were
traditionally reserved for French nationals.
6. Even though the 2005 Convention represents major progress
in modernising the Principality's relations with France, Article
6 stipulates that in the case of functions and posts that affect
both countries' "basic interests", particularly the aforementioned
five posts, "consultations between the two parties will ensure that the
senior persons concerned enjoy their mutual trust". In our last
report, we expressed the hope that the "mutual trust" condition
would enable the Prince to appoint Monegasques to these senior posts.
At present, four government members are Monegasques.
7. We welcome the French parliament's recent ratification of
the 2005 Convention as confirmation of the Principality's sovereignty vis-à-vis France. We reiterate that
practice alone will tell whether the new Franco-Monegasque agreements
signify substantial recognition by France of the Principality's
full sovereignty and not just purely formal modifications. We will
therefore follow developments in the application of the 2005 Convention’s
provisions in practice with interest and hope that a growing number
of senior functions and highly responsible posts will be filled
by Monegasque nationals in the near future.
2.2. Council of Europe
conventions
8. By 3 August 2009, Monaco had ratified 40 Council
of Europe conventions out of 205 and had signed 3 others, namely
the First Protocol to the European Convention on Human Rights (ETS
No. 009), the Revised Social Charter (ETS No. 163) and the Council
of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse (CETS No. 201).
9. The Principality ratified the European Convention on Human
Rights and its Protocols Nos. 4, 6, 7 and 13 on 30 November 2005,
accompanied by two declarations and a number of reservations. On
10 March 2006 Monaco also ratified Protocol No. 14 to the Convention
for the Protection of Human Rights and Fundamental Freedoms, amending
the control system of the Convention (CETS No. 194).
10. Three months after the adoption of
Resolution 1566, on 18 September 2007, Monaco ratified the European
Convention on the Suppression of Terrorism (ETS No. 090).
11. The Criminal Law Convention on Corruption, the Convention
on Mutual Assistance in Criminal Matters and the European Agreement
relating to Persons Participating in Proceedings of the European
Court of Human Rights were ratified on 19 March 2007. On 24 December
2008, Monaco ratified the Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data (ETS No. 108)
and its additional protocol regarding supervisory authorities and
transborder data flows (ETS No. 181).
12. At a still later date, 30 January 2009, the European Convention
on Extradition (ETS No. 024) and additional protocols (ETS Nos.
086 and 098) were ratified. Monaco also ratified Protocol No. 14bis
to the Convention for the Protection of Human Rights and Fundamental
Freedoms (CETS No. 204) on 1 July 2009.
2.2.1. The European Social
Charter (revised)
13. Monaco was also required to ratify the Revised European
Social Charter (ETS No. 035) within two years of accession, that
is not later than 5 October 2006. The Charter was signed on 5 October
2004 but has still not been ratified.
14. Ratification was already on the agenda in 2006, but the government
decided to allow itself more time to reflect on ratification in
view of recent developments in the case-law of the European Court
of Human Rights, in particular the
Demir
and Baykara v. Turkey judgment of 21 November 2006.
15. We repeated our view that this Turkish case was not relevant
and once again expressed our incomprehension at the government’s
position based on the opinion of a single expert.
16. During our October 2008 visit, the authorities told us that
they could envisage ratification of the Revised Social Charter by
the end of the year, once the
Demir and
Baykara v. Turkey case had been reviewed by the Grand
Chamber of the European Court of Human Rights. In its judgment on
the case, delivered on 12 November 2008,
the Grand Chamber
of the Court confirmed that the Court could refer to articles of
the revised Social Charter and the case-law of the European Committee
of Social Rights even if the state concerned (eg Monaco) had not
ratified this treaty, as one among a number of factors to take into
account when interpreting the provisions of the European Convention
on Human Rights, which alone are directly applicable, in particular
Article 11 on freedom of association.
17. Thus, Monaco's ratification of the Social Charter in itself
would make no difference whatsoever to this state of affairs. It
has nothing to fear from ratifying the European Social Charter.
Whether or not it does so, it could still be faced with a European
Court interpretation of Article 11 of the Convention based on the
Charter.
18. In their comments on our preliminary draft report, and during
the co-rapporteurs’ latest visit, the authorities took note of the
new Demir and Baykara precedent which ended doubts about the scope
of the Court judges’ powers of interpretation, a cause of anxiety
for the authorities in connection with the ratification of the revised
Social Charter.
19. Furthermore, HSH Prince Albert II, the Minister of State and
the President of the National Council assured us that the ratification
of the Social Charter could come about as soon as the Council of
State had given its opinion on the question of the Social Charter’s
applicability in Monegasque law and on the measures necessary for
its transposition into domestic law, expected in the course of September
2009, having been requested by the Prince. HSH Prince Albert told
us that he wished to see the Charter ratified by the end of the year.
20. We also wish to recall at this juncture that at the time of
our initial visits the government told us that under Article 14
of the Constitution the ratification, if made, would be made by
Sovereign Order and not by a vote of the National Council because
it ought not to entail any entry of a budgetary heading. The Prince
would notify the National Council of it through the Minister of
State, before ratification. In our opinion, however, the ratification
of the Charter should entail amendment of existing legislative provisions,
as will probably be confirmed by the opinion of the Council of State.
As a further step in the significant progress of relations between
the government and the National Council which followed the constitutional
reform of 2002, and in accordance with Article 14 of the Constitution,
we invite the Minister of State to consult the National Council
beforehand
on the Charter and any reservations, in a spirit of compliance with
the laws but also of transparency in the democratic process actuated
by accession to the Council of Europe.
2.2.2. Protocols Nos.
1 and 12 to the European Convention on Human Rights (ECHR)
21. Within a year of accession, Monaco was also meant
to ratify the First Protocol to the ECHR safeguarding property rights,
the right to education and the right to free elections (ETS No.
009). Moreover,
Opinion
250 (2004) provided that Protocol No. 12 on the collective enforcement
of a general prohibition of discrimination (ETS No. 177) was to
be signed within one year of its coming into force and ratified
within five years. Protocol No. 12 came into force on 1 April 2005
and should therefore have been signed by 1 April 2006. These two
undertakings have not so far been met.
22. Protocol No. 1 has been ratified by 45 out of 47 member states,
Switzerland and Monaco alone have not ratified.
The
main argument put to us is that ratification of Protocol No. 1 would
result,
ipso facto, in application of
Article 14 of the Convention, which prohibits discrimination in
enjoyment of the rights safeguarded by the Convention. The issue
is a delicate and complex one in view of the geographical and demographic
makeup of the Principality, and especially the minority status of
the population of Monegasque nationals.
23. Priority of employment for nationals, residents and inhabitants
of the adjacent municipalities, qualifications and skills being
equivalent, and the eligibility of Monegasques for moderate-rent,
state-owned housing, are measures deemed essential to the preservation
of a community of nationals on Monegasque territory and thus to
the country’s very survival. These constraints would form impediments
both to Monaco’s ratification of Protocol No. 1 and to the signature
of Protocol No. 12.
24. The authorities nonetheless recall in their comments on the
preliminary draft report that the national preference in respect
of social support is not a discriminatory factor in so far as the
forms of assistance granted to Monegasques are complementary to
a social protection system of great liberality towards the entire
working and retired population of the territory, irrespective of
nationality. We find that this argument militates in favour of the
ratification or signature of Protocols Nos. 1 and 12.
25. We would recall in this connection that in paragraph 9 of
its Opinion 250 the Assembly “acknowledges the particular situation
of a country such as Monaco where the indigenous population is numerically
smaller than the total number of people working and/or living there.
It considers that, in interpreting the commitments which Monaco
is to honour, the Council of Europe should take account of this
situation which has led the authorities to introduce preferential
schemes, chiefly benefiting Monegasque nationals, in respect of
work and employment, housing and social welfare. It notes, in this
connection, that the social security system is accessible to all
people working in Monaco”.
26. In their comments on the preliminary draft report, the Monegasque
authorities consider that the unconditional implementation of Protocols
Nos. 1 and 12 would cause profound upsetting of the social equilibrium,
which they cannot countenance. We would nevertheless point out once
again that Monaco freely and formally undertook to ratify Protocol
No. 1 and to sign Protocol No. 12 within one year of accession. Ratification
of the one and signature of the other could possibly be carried
out with the formulation of appropriate reservations taking into
account the peculiarities of Monaco. The authorities have said that
they are willing to pursue dialogue on this issue, and we would
wish this consultation to be placed in the context of the post-monitoring
dialogue which will be established at the conclusion of the monitoring
procedure.
2.2.3. The Convention
on Cybercrime
27. The Convention on Cybercrime (ETS No. 185) was to
be ratified by October 2009 in order to comply with the commitment
to ratify it within 5 years of accession. We encouraged the authorities
to go ahead with this ratification as soon as possible in so far
as it did not raise any particular problems. During our last visit,
we received confirmation from the authorities that the examination
of the Convention had raised no significant objection to its ratification
and confirmed that it should soon occur although it was not exactly
a priority of the government. We invite them to enlist the aid and
expertise of the Council of Europe in this sphere in order to take
the measures necessary to arrive at ratification.
2.3. The ratification
procedure for international treaties and the role of the National
Council
28. Since the 2002 constitutional reform, and under Article
14 of the Constitution, the National Council has been required to
give its agreement to the ratification of treaties where they affect
constitutional organisation, entail changes in existing legislative
provisions, involve participation by the National Council in an
international organisation or create a budgetary cost of a new kind
or with a new purpose. We considered this insufficient.
29. The Assembly, in its
Resolution
1566 (2007) on honouring of obligations and commitments by Monaco, recommended
that the Monegasque authorities “redraw the list of international
conventions and treaties in respect of which the National Council
must pass a ratification law in accordance with Article 14 of the Constitution
and meanwhile submit initially to the National Council any draft
reservations or declarations to a treaty in respect of which the
National Council must pass a ratification law.”
30. As regards treaties which it is for the National Council to
ratify in the cases provided for in Article 14 of the Constitution,
the ratification procedure still does not include prior consideration
by the National Council of any reservations and declarations which
it is planned to make when a particular treaty is ratified. We feel
it is abnormal, for example, that the National Council, despite
being called upon to approve ratification of the European Convention
on Human Rights, was not informed beforehand of the reservations
and declarations which the Principality was intending to make. The
members of the National Council whom we met expressed their regret
that this situation persisted and that the government was reluctant
to espouse transparency.
31. According to the government, Article 14 of the Constitution
specifies the cases in which ratification requires an approving
law and the exhaustive list of these cases is in no way "artificial"
but has been drawn up in accordance with precise and reasoned considerations.
In addition, prior examination by the National Council of reservations
and declarations to a ratification would implicitly but necessarily
mean restricting the Prince's authority in the field of international
relations. While, in those cases laid down in the Constitution,
rejection of a bill approving ratification bars ratification of
the international treaty, adoption of the bill does not compel the Prince
to ratify the international treaty in question. The making of reservations
and declarations is inherent in the discretionary powers which the
Prince enjoys in exercising his authority. The government states
that no constitutional revision is envisaged in that respect.
32. Elected members of the National Council stressed the fact
that they had no wish to restrict the powers of the Prince. Nonetheless
they felt, and we entirely agree, that voting on ratification of
a treaty without having been acquainted with the reservations and
declarations was tantamount to asking them to sign in a state of ignorance.
33. We reiterated that Monaco should fall into step with European
standards in this field and ensure that the national parliament
was totally involved in the treaty ratification process, though
without prejudice to the powers of the Prince.
34. Furthermore, regarding the international treaties ratified
by the Prince without the intervention of the National Council,
the Constitution expressly provides for the cases in which a law
is required.
35. The government states that an implementing Sovereign Order
is issued both in the case of treaties or agreements ratified solely
by the Prince and in the case of those requiring a law where certain
provisions call for implementing measures. Whether or not ratification
is subject to the enactment of a law has no legal bearing on the
need for issuing a Sovereign Order. A law is a measure preceding
ratification, whereas the issuance of an implementing Sovereign
Order is subsequent to ratification.
36. The fact is that in cases where a law is not necessary, new
offences and criminal penalties can be created by the sole means
of a Sovereign Order implementing an international treaty that provides
for such offences and penalties, whereas Article 20 of the Constitution
provides that no penalty may be imposed or applied except in accordance
with the law.
Note that any conviction in
the absence of a corresponding law which specifies the criminal
offence established in a Sovereign Order could result in violations
of Article 7 of the European Convention on Human Rights, which enshrines
the same principle of compliance with statute.
37. Both the Prince and the government told us that these orders
had been adopted as a matter of urgency, in particular to respond
to the recommendations of international organisations on fighting
international crime, money laundering and drug trafficking. However,
it has proved that the Principality’s undertaking arising from the
ratification of an international treaty may indeed entail an obligation
to take other implementing measures of a legislative kind.
38. According to the government, this has already been done in
respect of the law on the criminal liability of legal persons passed
in June 2008, almost two years after the promulgation of Sovereign
Order No. 605 of 1 August 2006 implementing the United Nations Convention
against Transnational Organised Crime. The authorities stated that
in view of the schedule of the National Council and the government
and the corresponding workload of the administration, the legislative
process could not be concluded any faster.
39. Nor indeed were we told of any case of a criminal conviction
in the absence of corresponding legislation. We could ascertain
during our various talks with representatives of different judicial
departments and the authorities that the European Convention on
Human Rights and the case-law of the Court formed an integral part
of the body of reference material used by lawyers and members of
the judicial service.
40. We asked that all implementing measures in criminal-law matters
be transposed into the corresponding legislative texts and that
the reform of the Penal Code be carried out as soon as possible
in order to incorporate all the offences and related penalties which
at present are set out solely in Sovereign Orders, and afford a sufficiently
extensive criminal justice apparatus to diversify penalties according
to the seriousness of offences.
41. We appreciate that the reform of the Penal Code, like that
of the Code of Criminal Procedure moreover, is a huge task and that
given the size of the Monegasque administration it requires considerable
resources and time. Which is why we call on the Monegasque authorities
to enlist the expertise of the Council of Europe in order to optimise
resources and speed up the process of the necessary modernisation
of the Monegasque legal system.
3. Domestic law
42. Key laws were passed from 2006 to 2008 amending certain
provisions of the Code of Criminal Procedure and the Penal Code
on conditions of pre-trial detention, police custody, telephone
intercepts, punishment of crimes and offences against minors, and
the liability of legal persons.
43. The enactment of the law on associations in December 2008
means that Monaco has fulfilled all its undertakings regarding domestic
law set out in
Opinion
250 (2004).
3.1. The law on associations
44. At the time of our visit in October 2008, Monaco
had not yet passed the law on associations. It was already being
debated and should have been passed during the National Council’s
spring 2007 session.
45. The National Council was not satisfied with the bill (No.
728) tabled by the government on associations and federations of
associations, and felt that to avert certain abuses it was of fundamental
importance to reinforce checks on the use made of public funds paid
to subsidised associations and to ensure effective monitoring in
this area. The government, which was opposed to the retention of
an amendment of this kind in legislation intended to establish the
proper conditions for freedom of association, opted to make financial checks
on individuals and private-law entities receiving public funds the
subject of a separate piece of draft legislation. Bill No. 812 on
the financial supervision of subsidised associations was officially
tabled in April 2006 and at once underwent close scrutiny by the
Legislation Committee, which expressed regret at the absence of substantive
revisions and was compelled to make numerous changes. The National
Council attached particular importance to having the two bills,
which were inseparable from each other, debated and voted on together.
46. The government however withdrew the draft law, Bill No. 812.
In the interests of consensus, the National Council accepted the
government's proposal, even though the legislation on the financial
supervision of subsidised organisations was no longer on the agenda.
47. After more than five years of debate, Law No. 1355 on associations
and federations of associations was finally approved by the National
Council on 18 December 2008.
3.2. The law to combat
domestic violence
48. A private member’s bill tabled by a group of majority
parliamentarians was approved by the National Council on 28 April
2008 and was intended to make provisions offering protection from
and establishing penalties for domestic violence between couples,
whether or not married, of opposite sexes or the same sex. The bill
would insert a part V entitled "unmarried cohabitation" and a new
Article 196-1 into Book 1 of the Monegasque Civil Code, worded as
follows: "Unmarried cohabitation consists in a
de facto union, characterised by
a shared life of a stable and continuing nature between two persons
of opposite sex living as a couple." After examining this proposed
wording referred to it for report, the Committee on the rights of
women and the family considered it necessary to delete the words
"of opposite sex" to avoid any discrimination based on sexual orientation.
After a stormy debate
the proposal, as amended, was approved by the National Council,
against the advice of the Minister of State. We were shocked to
discover that in the course of this debate in the National Council,
homophobic views were expressed by a senior public authority.
49. The Minister of State has 6 months as from the bill’s adoption
to signify his decision to the National Council concerning his intended
action on the text, either to convert the private member’s bill
into a draft law or to interrupt the legislative process. In their
comments on the preliminary draft report, the Monegasque authorities
have informed us that the governmental legislative services are
currently preparing the draft law against domestic violence committed
between persons living or having lastingly lived under one roof, irrespective
of the type of relationship between the perpetrator and the victim(s).
50. The Monegasque authorities informed us that the draft law
should be tabled in the Assembly by the end of 2009. Again according
to the authorities, in its present state of preparation it contains
provisions on the criminalisation, prosecution and punishment of
the specific offences of violence under one roof. Moreover, administrative
measures and technical stipulations on psychological supervision,
prevention, education and information would be issued, with the
aim of achieving genuine synergy between public safety, the judicial departments
and the specialised medical and welfare teams.
3.3. The law on political
parties
51. In its
Resolution
1566 (2007) on the honouring of obligations and commitments by Monaco,
the Assembly recommended that the Monegasque authorities begin considering
the case for a law on political parties, in particular to ensure
greater transparency in party financing. The recommendation was
repeated in
Resolution
1619 (2008) on the state of democracy in Europe concerning the functioning
of democratic institutions in Europe and the progress of the Assembly’s
monitoring procedure. The various parties represented in the National
Council, whether in the majority or the opposition, gave us confirmation
of the necessity of drafting a law to regulate at least the funding
of election campaigns.
52. The various parties represented in the National Council expressed
the wish to see a significant increase in reimbursement of expenses
incurred during election campaigns, at present limited to 25 000
Euros, given that the expenses declared by political parties involved
in the 2008 election campaign amount to over 300 000 Euros for the
parties currently represented in the National Council.
53. The “Rally and Issues” Group told us that it was working to
draft a private member’s bill on political parties in the Principality
of Monaco. We encourage the National Council and the government
to press ahead with this in order to arrive at a law ensuring greater
transparency in the funding of political parties, as also recommended
by MONEYVAL.
54. We are convinced that in the absence of taxation, hence of
tax assessment or inspection, in the Monegasque system, it is advisable
to develop greater transparency and a mature process which should
be regulated by legislative texts also applying to political parties
or movements. On this depends the voters’ confidence in the democratic
process and in their elected representatives, as well as in the
country’s good governance.
4. Functioning of
democratic institutions
4.1. The Parliamentary
elections of 3 February 2008
55. We recall that Monaco held parliamentary elections
on 3 February 2008. The results of the ballot produced a parliament
composed of members of two of the three lists that ran in the elections,
with UPM (Union for the Principality) obtaining 21 out of the 24
seats and RE (Rally and Issues) winning 3 seats.
56. In its report on the observation of these elections held on
3 February 2008, the Ad hoc Committee of the Bureau of the Assembly
concluded that given the particular situation of Monaco, the election
had taken place largely in line with Council of Europe electoral
standards. The Electoral Commission had conducted its work in an
impartial and professional manner, displaying considerable transparency
and efficiency.
57. The Ad Hoc Committee was confident that these elections marked
an important milestone along the road of Monaco’s further integration
into the Council of Europe, and it concluded with a number of recommendations.
58. While no particular problems had been reported concerning
media behaviour at the last elections, the Ad Hoc Committee thought
that the Monegasque authorities could consider introducing new media
legislation that would, amongst other things, specifically address
media behaviour during the electoral campaign.
59. The Ad Hoc Committee reiterated the Assembly’s recommendation
that the Monegasque authorities take into account the expediency
of enacting a law on political parties, not least with a view to
ensuring the transparency of party funding.
60. Our talks with the National Council members highlight the
need for election campaigns to be more precisely regulated and funded
with complete transparency. The UPM majority supports the idea that
the official election campaign should commence several weeks before
the national elections and not a mere 8 days previously as is the
case at present. Of course, and as in most European countries where
parliamentary elections are concerned, speaking time on the government-controlled
medias should reflect the strength of each political force’s National
Council membership.
4.2. The National Council
61. Strengthening the prerogatives of the National Council
has been the subject of intense negotiation and is still central
to the Parliamentary Assembly’s concerns.
62. The 2002 constitutional revision conferred new powers on the
National Council which is trying them out as the need arises. The
Council of Europe had asked for these changes to the Constitution
so that Monaco could become a genuine “pluralist democracy” within
the meaning of the Council of Europe statute.
63. In its
Opinion
250 (2004), the Assembly recommended that the Monegasque authorities
further broaden, within five years of its accession, the powers
of the National Council, particularly as regards supervision of government
action, the annual presentation of the governmental programme, the
right of legislative initiative, and the budgetary debate, in the
hope that the institutions would evolve in the course of time.
64. In its
Resolution
1619 (2008) on the functioning of democratic institutions in Europe,
the Parliamentary Assembly recommended that the Monegasque authorities
continue the reform process in order to strengthen further the role
of the National Council and to improve the system of checks and
balances.
65. The 2002 constitutional reform preceding accession to the
Council of Europe allowed the powers of the National Council to
be substantially increased, though without unseating a system based
on collaboration, consultation and negotiation between the powers.
Neither the fundamental principles of the apportionment of powers
nor the nature of the relations between them were affected, and
today the Principality is endowed with institutions founded on a
consensual logic.
66. During our visit in October 2008, the members of the National
Council, irrespective of their political affiliation, complained
of the lack of a genuine working relationship between the government
and the National Council. Both the majority and the opposition stress
that the powers of the National Council as stipulated in the 2002
revised Constitution would be enough to guarantee the independence
of the legislature vis-à-vis the executive
and the balance between the institutions. During our latest visit
in July 2009, we gained the impression that things had moved in
the right direction, with the National Council acquiring an ever
firmer foundation and independence as the institution matured.
67. However, the constitutional provisions are not yet being fully
applied, failing the transposition into implementing legislation
which would permit their application. The National Council members
also criticise the attitude of the government, which still does
not practice transparency (particularly as regards the vote on the budget
or legislative initiatives). As a result, the National Council is
unable to act as a genuine counter-force.
68. In the debates in the National Council on the 2009 budget,
which the government presented in December 2008, the National Council
members publicly questioned the government's working methods and criticised
the lack of dialogue and the fact that it treated the National Council
as nothing more than a rubber-stamp body. Notwithstanding a Finance
Committee report calling on members not to approve the budget, it was
finally adopted after more than 70 hours' debate by 14 votes to
5, with 4 abstentions. These debates showed that parliamentarians
are gaining experience of institutional relations and are increasingly
exploiting the powers vested in them by the 2002 revised Constitution.
The Minister of State, who, in accordance with the current Constitution,
itemised the government's annual programme, has himself acknowledged
that the government's working method was perhaps not ideal and that
for next year consideration had to be given to the timetable of
government activities, so that the debate with the National Council
could be better organised and more interactive.
69. The UPM majority members have moreover asked that the government
give an account each spring session of its general policy, in order
to initiate dialogue on political action and prompt a real debate.
During our meeting with the Prince last July, he declared that the
extension of the powers of the National Council desired by the Assembly
can be achieved by including the presentation of the governmental
programme and the discussion of the initial and rectified budgets
in the annual joint meetings between the government and the National
Council on the economic and social situation in the Principality.
70. With regard to legislative initiative, our contacts felt that
the government regularly availed itself of the possibility of withdrawing
a private member’s bill if it disagreed with the substance, thereby
negating de facto the National
Council’s power of legislative initiative. As a result, certain
members of the National Council said that, regrettably, they lacked
the power to implement the programme on which they had been elected.
71. By way of an example, in June 2005 the National Council unanimously
adopted a private member’s bill to amend Law No. 771 of 25 July
1964 on the organisation and functioning of the National Council,
aimed at modernising its activities and, in particular, improving
the rights of the opposition, always under the terms of and in accordance
with the 2002 revised Constitution.
72. For reasons that were strongly criticised at the time by members
of the National Council, the government, while not disagreeing on
the substance of this bill, decided to interrupt the legislative
process and take no further action. At elected members' insistence,
a working group on the organisation and functioning of the National
Council has since been set up by the Council and the government
so that the two institutions can jointly determine ways to achieve
improvement and modernisation of the rules governing the Assembly's activities.
We were told that the working group would be meeting in late October
2008 and that the modernisation of the National Council’s rules
of procedure would be undertaken in 2009, immediately after the adoption
of the law on the functioning of the National Council.
73. In their comments on the preliminary draft report, the Monegasque
authorities confirmed that the consultations between the National
Council and the government were proceeding in order to arrive at
an amendment of Law No. 177. At all events, we received no information
on the actual outcome of these consultations, and we regret that
four years on, the legislation and rules of procedure governing
the National Council's operations are still not compatible with
the 2002 Constitution.
During our last visit in
July 2009, no progress was observed. We believe that this issue
should be addressed as a matter of priority by the government.
74. Improving the functioning of parliament and strengthening
its prerogatives, particularly by passing the legislation on the
National Council's functioning and modernising its rules of procedure,
are essential for the balance of powers between Monegasque institutions,
so that the country is better prepared for its future. We fully
support the efforts made on both sides (National Council and government)
and wish to point out that the Council of Europe, and particularly
the Parliamentary Assembly, could assist the process with their
relevant experience.
75. We are well aware that the opposition’s role in the National
Council is not comparable to that found in parliamentary democracies.
At present, however, it is regrettable that the rights of the opposition
are not formalised in official texts. The opposition members expressed
the wish to be associated more systematically and formally with
the parliamentary committees of political importance.
76. Whereas in our first monitoring report on Monaco we noted
that the National Council was in the process of trying out the new
powers vested in it by the 2002 constitutional revision, today we
observe plain progress in the position and role of the National
Council in practice. Numerous reforms called for by the National
Council were undertaken by the government from 2003 onwards (state-owned
housing construction programme, home ownership on easier terms for
Monegasques, tabling of a bill on termination of pregnancy, etc.)
77. The authorities also informed us that their assembly’s facilities
and material resources, including funds, had been substantially
increased to cope with the parliamentarians’ heavier national and
international workload. Furthermore, a new building is now under
construction to meet the growing needs of the National Council.
78. Some of its members told us, however, that the deficiencies
of the rules of procedure placed them in sometimes difficult situations
in coping with the burden of their parliamentary office at the same
time as their full-time jobs, in the absence especially of resources
for creating parliamentary assistants’ posts.
79. Our attention was drawn to the charge laid against the President
of the National Council in 2007, a few months before the parliamentary
elections, during a parliamentary session. Monaco’s highest judicial
authority (the Review Court) finally found the action unlawful and
therefore declared it null and void.
80. In this connection, it might help improve the efficiency of
the National Council if an elected representative’s status was defined,
and this might also clarify the rules of immunity, which is crucial
to the observance of separation of powers and the undisturbed exercise
of the legislative mandate.
4.3. Local Democracy
81. Monaco has neither signed nor ratified the European
Charter of Local Self-Government, no doubt because the Principality
historically comprises a single municipality whose boundaries correspond
to those of the state.
82. The view of the Congress of Local and Regional Authorities
of the Council of Europe, shared by eminent lawyers, is that the
creation of a Monegasque municipal structure is basically in compliance
with the Council of Europe’s principles of local democracy.
83. In the constitutional revision of 2002 (see Article 87 of
the Constitution) the municipality’s financial independence was
somewhat strengthened. A new law on local self-government was passed
by the National Council on 6 June 2006 and came into force on 29
June 2006. In our discussions with the mayor and municipal council,
we received confirmation that as a result of this law, since 2007,
the municipality had acquired more financial and budgetary independence,
making it much easier for the municipal authorities and mayor to
do their work.
84. Monaco ratified the European Outline Convention on Transfrontier
Co-operation between Territorial Communities or Authorities (ETS
No. 106) in December 2007, and the protocols thereto.
85. With regard to ways of involving foreign residents (three-quarters
of Monaco’s population) more closely in the management of public
life at local level, a town hall website has been set up, designed
to inform all users about the life of the municipality. However,
the question of foreigners’ participation in local elections is
not contemplated.
4.4. The role of the
media
86. We described the media landscape in our last monitoring
report on the Principality.
87. According to the journalists we met, there is still a problem
of access to information because the government continues to confuse
communication and information. The press centre remains a government department
which, they claim, imposes the circulation of its information bulletins.
Even though the media landscape remains varied, there is no investigative
journalism and journalists appear to rely on information supplied
by the government via the press centre, since the various government
departments apparently do not pass on information but refer inquiries
directly to the centre, which thus acts as an information filter.
We still consider it essential to develop a more open and transparent
policy on access to information.
The Council of Europe's expertise
on this subject might be sought.
88. The journalists we met also told us that they practiced self-censorship
with regard to the Prince and his family. Here it should also be
noted that Monaco has entered a reservation concerning Article 10
of the European Convention on Human Rights, according to which:
"The provisions of Article 10 of the Convention apply without prejudice
to the provisions, on the one hand of Article 22 of the Constitution
establishing the principle of the right to respect for private and
family life, especially concerning the person of the Prince whose inviolability
is guaranteed in Article 3, sub-paragraph 2, of the Constitution
and, on the other hand, of Articles 58 to 60 of the Penal Code concerning
the offence of contempt
of the person
of the Prince and His family."
89. All our contacts deplored the National Council’s lack of direct
access as legislative power to the local television channel. At
present, access to the television channel Monaco Info is controlled
by the press centre which is subordinated to the government, a position
which was actually described to us as censorship of parliament and
denial of democracy.
90. At a more general level, as regards the handling of information
about the National Council on Monaco Info, the UPM majority would
draw attention to a consistently biased selectiveness. Indeed, some
arguments of interviews or communiqués originating from the National
Council are not broadcast where contrary to the stances of the government.
91. As an example, it mentions a question on the sensitive issue
of established foreign residents
(enfants du
pays), which vanished during editing in connection with
the European Conference of Presidents or Speakers of Parliament
(22-23 May 2008). More recently when Ms Sophie Thevenoux, just appointed
Government Counsellor on Finance and Economy, paid her inaugural
visit to the National Council on 20 March 2009, one of the sentences
of the National Council’s communiqué not mentioned on the air concerned
the request, hitherto rejected by the government, for the introduction
of objective criteria and a joint board to allocate state-owned
premises for professional use. Moreover, at the meeting of the Sub-Committee
on Human Rights of the Council of Europe Parliamentary Assembly,
held in Monaco on 10 March 2009, the interview with Mr Jean-Charles
Gardetto, Chairman of the External Relations Committee, referring
in particular to the absence of magistrates from Monaco at the meeting,
was totally censored.
5. Rule of law
5.1. The functioning
of justice
92. We examined the Monegasque judicial system in our
last report.
Moreover,
it was already clear from the report by the eminent lawyers that
there were no major problems with the functioning of justice in
Monaco and that the country's legal system duly guaranteed the enjoyment
of fundamental rights and freedoms.
93. The Principality indeed possesses a complete and effective
judicial system, particularly as regards procedural time limits,
which rarely exceed 6 months or 1 year in all courts.
94. Various reforms have taken place or are under way to modernise
the system and bring it into line with Monaco's international obligations.
95. The justice and freedom law, No.1343, was approved under urgent
procedure on 26 December 2006. It amended the Code of Criminal Procedure
so as to:
- protect the rights
of persons in police custody;
- regulate telephone intercepts;
- limit the duration of detention on remand, according to
the offence committed;
- establish compensation arrangements for arbitrary detention.
96. The National Council is currently considering a general reform
of the Code of Criminal Procedure, but according to the Director
of Judicial Services it does not have the necessary resources to
undertake a detailed analysis. We would emphasise that the Council
of Europe has sound expertise in this field and could provide the
Monegasque authorities with assistance.
97. We had already underlined that the Penal Code and the Code
of Criminal Procedure alike dated back to 1966 and definitely needed
revision. The main examples we have been given concern the impossibility
of criminal action against certain unlawful acts for want of their
definition as offences in the statute book. The problem was confirmed
by Monaco's investigating judges, who were sometimes forced to terminate proceedings
because there was no provision defining such and such a crime in
the legislation.
98. The Director of Judicial Services, Mr Philippe Narmino, told
us that there were no plans at present for a comprehensive reform
of the Code of Criminal Procedure, but the Monegasque authorities
were filling any gaps as and when they appeared. According to the
Monegasque authorities, criminal legislation is regularly amended
either to be brought into line with the stipulations of international
conventions to which the Principality of Monaco accedes, or to be
consistent with the development of custom and thought in the Principality’s
multi-community society. For example, in December 2007, the crimes
and offences against children law, No. 1344, filled an existing
legal vacuum by introducing the notion of abuse of weakness into
the Penal Code. More lately still, Law No. 1349 of 25 June 2008
amending Book I of the Penal Code instituted the criminal responsibility
of legal persons.
99. In our last report we also identified a problem when the state
itself was found to be at fault, since there was no legislation
providing for enforcement against the state or a public-law corporation.
However, Mr Philippe Narmino informed us that the state of Monaco
has never refused to comply with judgments of the European Court
of Human Rights. Besides, the responsibility of the state can be
questioned before a legal or administrative jurisdiction and many
cases are brought against the state, questioning for example whether
or not it is responsible for contracts or other matters. He does
not consider legislation to that effect necessary since practice
shows that the system does function de
facto without the state failing in its obligations.
100. We also pointed out earlier that there was no possibility
under Monegasque law of obtaining a retrial in the event of a finding
by the Court of a violation of the European Convention on Human
Rights. Mr Narmino has informed us that his officials are currently
working on draft legislation, which is being considered by a multidisciplinary
committee. Once it has been finalised and approved by the Director
of Judicial Services it will be presented to the National Council,
although he was unable to give us a date. We encourage this initiative and
invite the authorities to continue this work expeditiously.
101. As regards the functioning of the judiciary itself, considerable
modernisations of the system are awaited. As long ago as 2004, the
National Council was to examine a bill on the administration of
justice and a new statute for judges to replace that laid down in
the laws of 1918 and 1965 on the administration of justice, with the
aim, inter alia, of setting
up a judicial service commission for breaches of discipline and
reorganising judges' career structure. On our visit in October 2008,
Mr Narmino and Ms Brigitte Grinda-Gambarini, President of the court
of first instance, confirmed the imminence of this reform.
102. In particular, section 22 of Bill No. 779, tabled by the government
in May 2004, provides for the future judicial service commission
to have 6 members, 2 of whom will be ex
officio (the Director of Judicial Services, who will
be its chairman, and the First President of the Review Court) and
3 will be appointed respectively by the Council of State (which
is not a court), the National Council and the Supreme Court (but
not from its own members). The National Council has proposed the
addition of one member elected by the judiciary.
103. Although the government appears to have accepted this last
proposal, it would be appropriate to check whether the envisaged
membership of the judicial service commission is in line with European
standards, and particularly with the 1998 European Charter on the
Status of Judges, bearing in mind that appointed members may not
be civil servants, judges or lawyers and that judges will therefore
be in a minority on this body. It will also be necessary to state
clearly whether the commission's opinions on appointments are consultative
or binding, as well as which posts are concerned.
104. In its evaluation report on Monaco adopted in October 2008,
the
Council of Europe's Group of States against Corruption (GRECO) considers
that the Director of Judicial Services currently has considerable discretion
in arrangements for the selection, appointment and careers of judges
and prosecutors, which raises a number of queries about the independence
of the institutions responsible for investigating, prosecuting and trying
corruption offences especially. Referring to the bill on the administration
of justice and the status of judges and the proposal to set up a
judicial service commission, GRECO considers the bill to be a very welcome
initiative, which might also be an opportunity to discuss and review,
together with the French authorities, the arrangements for selecting
seconded judges from France, since the Monegasque authorities were
unable to describe with any precision the criteria used by France
to choose the three candidates it had to propose for each vacant
post. Finally, the current rules governing French secondments (renegotiated
in 2005 and brought into effect in 2008) – a three year period,
renewable once, as with all other seconded French personnel – pose
practical problems because of the excessively rapid turnover that
results. GRECO also considers that this could affect the independence
of judges and prosecutors faced with the pressure of renewal as
the end of their first three-year term approaches. The renewal of
their secondments is not by right for judges, and the decision depends
on the respective intentions of the French and Monegasque authorities.
According to the GRECO report, while the former period of up to
twenty years was far too long, the current one is too short, and
a reasonable balance has to be struck.
105. The executive, in the form of the Director of Judicial Services,
also has a predominant and largely discretionary role in the exercise
of disciplinary authority over prosecutors, and to a lesser extent
judges. GRECO recommends that the authorities, in consultation with
the French authorities where necessary, a) complete the proposed
reorganisation of the judiciary and establish a judicial body that
would be responsible for the recruitment, appointment, promotion
and training of Monegasque and seconded French judges, together
with disciplinary and other aspects of their careers; and b) review
the arrangements for the secondment of French judges to offer more
safeguards for their independence, particularly at the time of possible
renewal of secondment.
106. According to the Monegasque judicial authorities, the government
bill on the administration of justice and the status of judges and
prosecutors, still in preparation, provides for the delivery of
an opinion by the judicial service commission on appointment to
a judicial office and on promotion and career development. Guided
by the key ideas in the explanatory memorandum to the 1998 European
Charter on the Status of Judges, the bill is reported to provide
in particular that after two years in the judicial service auxiliary
magistrates receive final appointment as judges or substitutes subject
to the approval of the judicial service commission. In other words, it
is an approval which exceptionally is binding on the appointing
authority. The judicial service commission’s opinion is also stipulated
where the terms of service required to receive automatic promotion
are reduced to take account of the judicial officer’s merits, and
for appointments, regardless of the grade at which they are made.
The bill will thus bring all magistrates under the same system.
107. Regarding the independence of the judiciary, the bill in hand
should afford some improvements while again enshrining the guarantees
of independence constituted by the principle of tenure or the conditions
of disciplinary action. It will limit the disciplinary power of
the Director of Judicial Services whose sole function will be to
bring actions for breaches of discipline, whereas the ordering of
the sanction will rest with the judicial service commission.
108. At present the bill is still under consideration pending the
current French reform of judicial investigation, particularly where
members of the prosecution are concerned, from which the Monegasque
Government may take inspiration.
109. Turning to the legal profession in Monaco, there is still
talk of modernising the law on the profession of barrister, among
other things in order to extend the membership of the Bar Council.
At our meeting with the recently appointed Attorney-General, Mr
Jacques Raybaud, we learnt that he had just received proposals from the
relevant professional organisations, to which he would give close
attention. Since the profession comprises some 28 barristers for
the whole country, we believe important that disciplinary questions
must be tackled with great thoroughness and regulated by law.
5.2. Combating corruption
and money laundering
5.2.1. Combating corruption
110. Monaco signed and ratified the Council of Europe
Criminal Law Convention on Corruption (ETS No. 173) on 13 March
2007, and it came into force on 1 July 2007, which entailed automatic
accession to GRECO.
111. Monaco does not appear on Transparency International’s annual
index of perception of corruption. Judicial statistics on corruption
have only recently been established. As to incoming applications,
the Attorney General’s staff registered 39 international letters
rogatory concerning corruption offences between 2002 and late December
2007.
112. The ratification of the Criminal Law Convention on Corruption
(ETS No. 173) and participation in GRECO were a first step for the
Principality of Monaco in introducing anti-corruption measures,
and it was indicated that GRECO’s evaluation report
would serve as a basis for
wider reflection and for the introduction of new measures. Corruption
is thought to be a negligible phenomenon in Monaco, but the country
attaches great importance to the preservation of its image, which
may potentially result in cases not being brought to justice. Monaco
has no record hitherto of any convictions or even court decisions
in this area, despite the presence of sectors sometimes considered
to be at risk of corruption, and the marked inadequacy of anti-corruption measures
and internal/external controls over administration and public officials,
often ignorant of the few preventive measures that do already exist.
GRECO has identified further deficiencies that could explain the few
cases uncovered to date.
Finally,
it has also been found that there is room for improvement in the
status of prosecutors and judges, including the protection of prosecutorial
work in criminal matters.
113. From a constitutional standpoint, GRECO has concluded that
"there is little in the way of political counterbalance in Monaco",
given the peculiarities of the constitutional system, granting the
Prince a prominent role whereas Parliament (the National Council)
has limited powers and the media have very restricted access to
information held by the authorities.
114. Having regard to its assessment of relevant Monegasque law
and practice, GRECO has addressed no fewer than 28 recommendations
to Monaco and has invited the Monegasque authorities to report on
their implementation by 30 April 2010 at the latest.
115. For our part, we urge the Monegasque authorities to implement
the GRECO recommendations, where appropriate making use of Council
of Europe assistance to draw up the various programmes and items
of draft legislation.
5.2.2. Combating money
laundering
116. The Committee of Experts on the Evaluation of Anti-Money
Laundering Measures (MONEYVAL) adopted its most recent report on
Monaco in December 2007, following a visit to the country in November 2006.
117. According to MONEYVAL, since its previous report in 2003 the
Monegasque authorities have made several changes to the legislation
and regulations to supplement Monaco’s anti-money laundering apparatus. In
particular, they have amended the provision of the Penal Code making
a criminal offence of money laundering, introduced additional customer
identification measures, adopted a variety of legislation regulating electronic
transfers, relations with politically exposed persons and the activities
of correspondent banks, and ratified a number of international conventions.
118. The volume of suspicious transaction reports has increased
in recent years, particularly those originating from casinos and
accountants. According to MONEYVAL, supervision of the financial
institutions, in particular on-site supervision, needs to be significantly
strengthened, as does the number of staff assigned for this purpose.
119. In recent years, the Monegasque financial system has become
increasingly more concentrated as a result of a series of mergers
and acquisitions starting in 2003 and the arrival of big names in
the world of finance and wealth management. The financial sector
is dominated by private banking activity and fund management companies.
In late 2005, the total value of assets managed by Monegasque banking
establishments was 70 billion euros. By the end of 2006, credit
establishments and portfolio management had a turnover of 2.1 billion
euros and represented 15.6% of total turnover of the private sector
in Monaco. Most of the banks’ activities were concerned with non-resident
customers (Italy, Germany, Belgium, northern Europe), who in 2006
accounted for 66% of customer deposits.
120. According to the Monegasque authorities, occurrences of laundering
in Monaco nearly always stem from predicate offences committed abroad,
evidence for which requires investigations abroad. Proceedings tend
to be lengthy because investigations depend on the co-operation
of foreign authorities. The main types of predicate offences are
difficult to identify. MONEYVAL believes that, like any major financial
centre, Monaco has to deal with very sophisticated forms of money
laundering that are mainly concerned with the second and third stages
of the process: conversion and integration.
121. National and international co-operation and co-ordination
mechanisms have been set up between the competent authorities responsible
for implementing anti-laundering arrangements, which appear to work properly
and ensure that information circulates. However, the effectiveness
of some co-operation machinery between supervisory authorities in
particular could be improved.
122. In June 2000 the Principality of Monaco alongside Andorra
and the Principality of Liechtenstein was kept on the list of unco-operative
tax havens drawn up by the Organisation for Economic Co-operation
and Development (OECD) as it has not given any undertakings regarding
the transparency or the effective exchange of information for taxation
purposes. MONEYVAL notes though that Monaco does respond to requests
for mutual assistance in matters regarding organised tax fraud and
related crime, subject to compliance with the specialty rule.
123. For over a year the Principality de Monaco which, in the light
of its banking, fiscal and financial practices has always considered
it unjustified to be kept on this list, has approached the European
Union and the OECD in order to be struck off. Discussions on this
are still in progress and passed a milestone with the signature
of a letter of intent from the Minister of State His Excellency
Mr Jean-Paul Proust to Mr Angel Gurría, Secretary General of the
OECD, conveying Monaco’s official undertaking to conclude an anti-fraud
agreement with the European Union by the end of 2009, and bilateral
agreements of the same kind with non-European Union countries. These
treaties presumably concern exchange of information in tax matters,
according to OECD criteria, on the basis of vouchers transmitted
by the requesting states and would probably result in legislative measures
of internal transposition. The government did not forward a copy
of this letter of intent to the National Council.
124. Besides, the Principality very lately embarked on a new strategy
by signing as a first step on 15 July this year an agreement between
Monaco and Belgium authorising the circulation of tax information.
Monaco contemplates the signature of ten more conventions on fiscal
transparency in order to meet OECD standards and get off the grey
list of tax havens.
125. MONEYVAL considers that Monaco has a satisfactory legal framework
to combat money laundering and financing of terrorism, although
the evaluators regretted the fact that, in general, the legal provisions
are not very detailed or otherwise supplemented by detailed secondary
legislation and instructions. They recommend ways in which certain
aspects of the system could be strengthened.
126. On 23 July 2009 the National Council passed Law No. 136 on
the prevention of money laundering, financing of terrorism and corruption.
The law was enacted as a matter of urgency under the strategy seeking to
change Monaco’s image and get off the OECD grey list, and required
the holding of three extraordinary sessions. Moreover, the three
National Council members of the “Rally and Issues” group decided,
for the first time since the present legislature began, not to take
their seats in the public sitting where the vote on the law was
taken. According to the opposition, the government made the urgency
extreme by placing intolerable pressure on the National Council
which thus could not enjoy the necessary time and detachment for
normal consideration of a text with major implications. It was adopted
three months after tabling in the National Council.
127. The authorities describe the draft law as entirely in conformity
to the MONEYVAL recommendations. The assessment of the law by MONEYVAL
will take place at its plenary meeting in Strasbourg from 21 to 24 September
2009.
6. Human rights
128. Concerning the national human rights safeguards,
we refer to the report of the Council of Europe Commissioner for
Human Rights, Thomas Hammarberg, following his visit to Monaco (20-21
October 2008)
and
reiterate the Commissioner’s recommendations inviting the Monegasque
authorities to set up an independent institution for the protection
of human rights, able to receive complaints from individuals on
human rights issues. To ensure full compliance with international
standards, the incumbent of this office should be appointed by the
National Council, the duties of office defined by a law, if not
the Constitution, and its functional, financial and material independence
guaranteed.
6.1. Combating discrimination
129. Our last report considered in some detail the specific
issues of Monegasque national identity, the particular situation
of established foreign residents ("
enfants
du pays"), nationality laws, naturalisation and national
preference regarding social assistance and the right to housing.
Since
we do not wish to repeat ourselves, we refer readers to the last
report for detailed particulars and will confine ourselves here
to what has happened since. Readers are also referred to the aforementioned
report of the Council of Europe Commissioner for Human Rights.
130. Most significantly, in May 2007 the European Commission against
Racism and Intolerance (ECRI), the Council of Europe's independent
human rights monitoring body specialising in problems of racism
and intolerance, published a report on Monaco.
131. ECRI notes that since joining the Council of Europe, Monaco
has taken a number of measures to combat racism and intolerance,
including the ratification of a large number of international legal
instruments, including the European Convention on Human Rights.
132. Monaco has also made a declaration whereby the country recognises
the competence of the Committee for the Elimination of Racial Discrimination
to examine complaints alleging violations of the rights set out
in the International Convention on the Elimination of All Forms
of Racial Discrimination. The Monegasque authorities have also honoured
a number of commitments made when the Principality joined the Council
of Europe, such as enacting a law on the statement of grounds for
administrative decisions. They have furthermore enacted a law on
freedom of public expression, which punishes incitement to racial
hatred. The Monegasque authorities have set up a commission to assist
victims of despoilment in the Principality during the Second World
War and have adopted a code of conduct for police officers which
includes the principle of non-discrimination.
133. According to ECRI some steps still remain to be taken. Apart
from the expected signature and ratification of Protocol No. 12
to the European Convention on Human Rights and its general non-discrimination
clause, conferment of Monegasque nationality is still by sole authority
of the Sovereign Prince and applicants are not informed of the reasons
for a refusal. The Principality still needs to adopt anti-discrimination
provisions in civil and administrative law and criminal law provisions
which punish racist acts. The racist motivation of a crime is not
regarded as an aggravating circumstance when the sentence is determined.
Procedural safeguards are needed with regard to persons subject
to a turning back or deportation order. Safeguards are also required
with regard to the preferential rules applying to Monegasques and
certain others in the employment sector. This will serve to protect
workers who do not benefit from such rules against any discrimination
in the application of this system.
134. The ECRI therefore recommends that Monaco ratify Protocol
No. 12 to the European Convention on Human Rights, ensure that the
Constitution contains provisions granting equal status to everyone
within the Principality’s jurisdiction, include anti-discrimination
provisions in civil and administrative law, amend criminal legislation
to include provisions against racist acts, such as allowing the
racist motivation of a crime to be considered as an aggravating
circumstance, and ensure that the preference granted to Monegasques
and certain others in employment matters is coupled with legal protection
against racial discrimination. Finally, ECRI considers it necessary
to set up a specialised body for the protection of human rights,
whose tasks would include combating racism and racial discrimination.
135. We encourage the Monegasque authorities to implement the ECRI
recommendations and inform us of the relevant measures taken.
6.2. Prevention of torture
and inhuman or degrading punishment or treatment
136. The European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT) visited Monaco
from 28 to 31 March 2006, and the Government of the Principality
of Monaco authorised publication of the first report in May 2007.
137. The CPT heard no allegations of torture or serious bodily
ill-treatment from persons who had been detained by the police,
and received no other evidence of such conduct. This positive impression
was confirmed by information which the CPT gathered from other sources,
in particular judges, lawyers and members of the medical profession.
138. In this connection, let us point out that the case of
Prencipe v. Monaco, the first
judgment of the European Court of Human Rights finding a violation
of the Convention by the Principality, did not disclose a violation
of Article 3 (torture; inhuman or degrading punishment or treatment).
The Court nevertheless found a violation of Article 5§3 (pre-trial
detention) and ordered the State authorities to pay the applicant
6 000 euros for redress of non-material damage. The various laws
enacted from 2006 to 2008 amending certain provisions of the Code
of Criminal Procedure and the Penal Code with regard to conditions
of pre-trial detention especially should avert this type of violation
in future.
139. It should be recalled that under the Neighbourhood Agreement
between France and Monaco of 18 May 1963, persons convicted in Monegasque
courts serve their sentences in French prisons. In practice, persons who
are finally sentenced to imprisonment are transferred to the Nice
short-stay prison, and then to other places of detention in accordance
with the French prison system. In principle, Monaco’s short-term
prison is not intended for serving prison sentences and should only
be used for detention on remand or for persons serving the final
part of their sentence.
140. The Monegasque authorities have made serious efforts to comply
with certain CPT recommendations, particularly the reform of the
Penal Code regarding conditions of police custody.
In addition, the doors of the short-term
prison remain open longer. However, the educational facilities,
particularly for young persons, are poor and sporting activities
are limited. Finally, the Monegasque authorities carried out work
on the visiting rooms in December 2007 to comply with the CPT recommendations.
In addition to these improvements, the frequency of visits has been
reviewed and these are now authorised for 45 minutes twice a day,
five days a week.
141. Access to the telephone is still limited. Everyone who is
admitted is entitled to make a call to inform their family. Thereafter,
only convicted persons can make a call, once a month. The European
Prison Rules recommend that prisoners be allowed to communicate
with the outside world as frequently as possible, particularly by
telephone. Prisoners awaiting trial must be granted greater access
to means of communication with the outside world, except where specifically
and individually prohibited by the judicial authorities.
142. In their comments on the preliminary draft report, the Monegasque
judicial authorities informed us that investigating judges and members
of the prosecution department were being consulted about telephone conversations
with the outside world. Far more flexible regulations, particularly
for prisoners awaiting trial, are due to be issued.
143. We congratulate the Monegasque authorities on the steps taken
and invite them to make further efforts to implement the remaining
CPT recommendations.
7. Conclusions
144. Monaco will soon have been a member of the Council
of Europe for five years. In the monitoring procedure that commenced
immediately after its accession, the two co-rapporteurs fully supported
the efforts of the Monegasque authorities and encouraged them, where
necessary, to honour their obligations and commitments towards the
Organisation. Our objective has been, and remains, to ensure that
the monitoring procedure can be terminated as rapidly as possible.
145. This report shows that serious work has been accomplished
with regard to conventions and legislation. Given that the Principality
of Monaco has honoured most of its obligations and commitments and
that the remaining obligations and commitments are being fulfilled,
we would recommend that the Assembly consider the current monitoring
procedure completed. The implementation of other reforms in the
matters itemised in our preliminary draft resolution will be closely
watched in the context of the post-monitoring dialogue with the Monegasque
authorities which the Monitoring Committee will conduct on behalf
of the Assembly.
* * *
Reporting committee:
Committee on the Honouring of Obligations and Commitments by Member
States of the Council of Europe (Monitoring Committee)
Reference to committee:
Resolution 1115 (1997)
Draft resolution unanimously
adopted by the committee on 9 September 2009
Members of the committee:
Mr Serhiy Holovaty (Chairperson),
Mr György Frunda (1st Vice-Chairperson), Mr Konstantin Kosachev (2nd Vice-Chairperson),
Mr Leonid Slutsky (3rd Vice-Chairperson),
Mr Aydin Abbasov, Mr Pedro Agramunt
Font de Mora, Mr Miloš Aligrudić,
Mrs Meritxell Batet Lamaña, Mr Ryszard Bender,
Mr József Berényi, Mr Luc van den Brande,
Mr Mevlüt Çavuşoğlu, Mr Sergej
Chelemendik, Ms Lise Christoffersen, Mr Boriss Cilevičs, Mr Georges Colombier, Mr Telmo Correia, Mrs
Herta Däubler-Gmelin, Mr Joseph Debono Grech, Mr Juris Dobelis,
Mrs Josette Durrieu, Mr Mátyás Eörsi, Ms Mirjana Ferić-Vac, Mr Giuseppe
Galati, Mr Jean-Charles Gardetto,
Mr József Gedei, Mr Marcel Glesener, Mr Andreas Gross, Mr Michael Hagberg, Mr Holger
Haibach, Ms Gultakin Hajibayli, Mr Michael Hancock,
Mr Davit Harutyunyan, Mrs
Olha Herasym’yuk, Mr Andres Herkel, Mr Kastriot Islami, Mr
Mladen Ivanić, Mr Michael Aastrup Jensen, Mr Miloš
Jevtić, Mrs Evguenia Jivkova, Mr Hakki Keskin,
Mr Haluk Koç, Mrs Katerina
Konečná, Mr Jaakko Laakso,
Mrs Sabine Leutheusser-Schnarrenberger, Mr Göran Lindblad, Mr René van der Linden, Mr Eduard Lintner, Mr Pietro Marcenaro, Mr
Bernard Marquet, Mr Dick
Marty, Mr Miloš Melčák, Mrs
Nursuna Memecan, Mr Jean-Claude Mignon,
Mr João Bosco Mota Amaral,
Mrs Yuliya Novikova, Mr Theodoros
Pangalos, Mrs Elsa Papadimitriou, Mr Alexander Pochinok, Mr Ivan Popescu, Mrs Maria Postoico, Mrs
Marietta de Pourbaix-Lundin,
Mr Christos Pourgourides,
Mr John Prescott, Mrs Mailis Reps, Mr Andrea Rigoni, Mr Ilir Rusmali,
Mr Armen Rustamyan, Mr Indrek
Saar, Mr Oliver Sambevski, Mr Kimmo Sasi,
Mr Samad Seyidov, Mr Sergey
Sobko, Mr Christoph Strässer, Mrs Chiora Taktakishvili,
Mr Mihai Tudose, Mrs Özlem Türköne, Mr
Egidijus Vareikis, Mr José
Vera Jardim, Mr Piotr Wach, Mr Robert Walter,
Mr David Wilshire, Mrs Renate Wohlwend,
Mrs Karin S. Woldseth, Mrs Gisela Wurm, Mr Andrej Zernovski.
N.B.: The names of the members who took part in the meeting
are printed in bold
Secretariat of the committee:
Mrs Chatzivassiliou, Mr Klein, Ms Trévisan, Mr Karpenko