The foundations of Monegasque justice and Monegasque Law
1. The foundations of Monegasque justice and its independence
The Constitution of 17 December 1962 includes Chapter X entitled “Justice”, which determines the principles upon which the judicial system is based.
In particular, the provisions of Chapter X of the Constitution enshrine the principle of delegated justice, under which the judicial power belongs to the Prince who delegates its full exercise to the courts and tribunals (1).
These render justice in His name (Art. 88). This delegation of power conforms to another fundamental principle of the whole rule of law, that of the separation of the administrative, legislative and judicial functions, which is also enshrined in the Constitution (Art. 6).
As a result of the combined application of these constitutional provisions, the judiciary is completely independent of executive power with regard to judicial procedures and decisions, most evidently, but also with regard to the administration of justice.
For this reason, the Prince’s Government does not have a Minister of Justice. Judicial administration is consequently carried out by an independent department: the Department of Justice. At the head of the department the Secretary of Justice has, within his area of responsibility, powers comparable, both in their nature and their scope, to those devolved to the Minister of State for the general administration of the Principality. As is the case with the latter, the Secretary of Justice is responsible to the Prince alone for the performance of his duties.
Similarly, the principle of judicial independence is guaranteed by the Constitution (Art. 88). This provision specifically concerns judges exercising the functions of the court, namely those called upon, through their decisions – collegial or individual – to settle the disputes submitted to them by the parties involved and under the conditions determined by law.
In application of this principle, the sitting judges are irremovable(2), which means they cannot be dismissed, suspended or transferred under the same conditions which apply to civil servants.
Still with the aim of ensuring judicial independence, the Constitution also states that the organisation, competence and functioning of the courts, as well as the statute of the magistrates, are fixed by law (Art. 88). They cannot therefore emanate from regulatory power, except in accordance with the law, thus providing a significant guarantee(3).
(1) In judicial matters, the only powers belonging to the Prince, as is the case for Sovereigns and Heads of State of other countries, are of a royal nature, namely granting pardon and amnesty (Art. 15 of the Constitution).
(2) Irremovability does not apply to magistrates from the Public Prosecution Department, which is a hierarchical body that is headed by the Public Prosecutor, nor to Referendaries. The functions of the referendary are the first to be exercised in the Monegasque judicial hierarchy. Referendaries are usually placed in the Court of the First Instance, and may, by order of the First President of the Court of Appeal, be assigned to the Public Prosecution Department.
(3) A facility for distribution between the two domains of law and regulation, comparable, for example, to the system established by the French Constitution of 1958, does not exist in Monaco. However, the Monegasque Constitution does affect certain matters concerning legislative jurisdiction, and hence this is the case with the organisation, jurisdiction and functioning of the courts, and the statute of the magistrates.
2. Monegasque Law
Applying the French Codes
Overall, Monegasque law is largely derived from French law. This is due to the long, close and privileged relationship uniting the two countries.
Thus, the French Codes, enacted under the First Empire, were applied to Monaco between 1793 and 1816. In order to overcome the unsuitability, in certain matters, of the French legislation to the particularities of the Principality, Codes specific to Monaco were later enacted, such as the Commercial Code of 5 November 1866, the Criminal Code of 19 December 1874 and the Civil Code of 21 December 1880. Subsequently, Prince Albert I, decided to confer upon Baron de Rolland, a French magistrate, the responsibility of drafting of two new codes: the Code of Civil Procedure and the Code of Criminal Procedure, which were enacted in 1896 and 1904 respectively.
Until the beginning of the 1960s, these five Codes formed the core of the Monegasque positive law, only undergoing minimal amendments.
The creation of the Monegasque Codes
However, on 26 May 1954, the Sovereign Prince ordered the creation of a Commission for Updating the Codes. The Commission was specifically tasked with proposing the revisions to the Monegasque legislation required in order to adapt it to the new needs of persons under the jurisdiction of Monegasque courts, and to contemporary standards. Since its creation, this organisation has been presided over by the Secretary of Justice, President of the Council of State, and was originally composed of four Councillors to the Court of Revision. The Commission’s work led to the enactment of a new Code of Criminal Procedure in 1963, and then a new Criminal Code in 1967. Today its composition is supplemented with professors of law, magistrates of other Monegasque jurisdictions, members of the Bar and representatives of the National Council and the government administration.
To this day, in spite of the French influence, many particularities of Monegasque law are quite noticeable in very diverse areas: family law, nationality law, company law, collective procedures for settlement of liabilities, criminal law, criminal proceedings, civil procedure, administrative law, etc.
A review of Monegasque law published in 2000 made it more comprehensible, and since 2011 a “Monegasque Code” has been published in Lexis Nexis, which brings together institutional texts, codes, and a selection of uncodified texts, particularly in the legal domain.
- Constitution of the Principality
- Sovereign powers
- Executive powers
- The foundations of Monegasque justice and Monegasque Law
- The Supreme court
- The Department of Justice
- The Remand Prison of Monaco
- The High Council of Judges and Prosecutors
- The Public Prosecution Department
- The Justice of the Peace
- The Court of First Instance
- Specialised Courts and Judges
- The Court of Appeal
- The Court of Revision
- The Criminal Court
- The General Court Registry
- The Officers of the Law
- Legal aid
- Assemblies and constitutional bodies