The Court of First Instance
- Organisation and operation
- Judges with specialised functions
- Founding Laws
The Court of First Instance is a collegiate court that hears civil (Court of First Instance) and criminal cases (Correctional Court).
All of the judges sitting on the Court of First Instance are therefore competent to hear both civil and criminal cases.
The tribunals of the Principality exercise jurisdiction over citizens of Monaco as well as those of other countries.
The Court of First Instance hears:
- At first instance, all civil or commercial cases, which because of their nature or value, fall outside the jurisdiction of the Justice of the Peace
- Similarly at first instance, as the ordinary court in administrative matters the Court of First Instance hears all cases other than those for which the Supreme Court or other tribunal has jurisdiction under the constitution or by law
- On appeal, the Court of First Instance examines judgments handed down at first instance by the Justice of the Peace and arbitration awards on civil or commercial matters, as well as judgments over which it has jurisdiction by law
The Correctional Court hears:
- At first instance, all offences that are categorised as serious offences (délits) and which are punishable by penalties generally limited to 5 years of imprisonment and a maximum fine of 90,000 euro
- Minor offences where closely connected with a more serious offence
- In criminal matters, offences committed by minors of 18 years of age, provided that the minor is not being prosecuted at the same time as adults
- On appeal, the Correctional Court examines judgments handed down by the police magistrate
Organisation and operation
All hearings at the Court of First Instance are presided over by three judges.
The tribunal is made up of one president, one or two vice presidents and one or more chief judges, judges and assistant judges. The court has only one chamber; depending on the needs of the service, the president can delegate his powers to one of the vice-presidents or to a judge.
In order to be valid, cases must be referred to the Civil Court of First Instance by summons served by a court bailiff, which must indicate:
- The name of the tribunal that is to hear the claim
- The date and time of the court appearance
- The full identity and domicile of the plaintiff and addressee of the summons
- The name of the person to whom the summons will be presented
- The name, place of residence and signature of the bailiff
- The subject of the claim and a brief statement of the grounds
The normal period of notice for a summons on a person domiciled in Monaco is six clear days; this period may extend to 30, 60 or 90 days depending on where in Europe or other continents the person to be summonsed is domiciled. The president of the court is at liberty to shorten that period if so requested.
Cases are referred to the Correctional Court:
- As a result of referral from the examining judge or from higher courts in the event of an appeal
- By direct referral from the Public Prosecution Department or the plaintiff
- As a result of the voluntary appearance of both parties
- Or through appearance of accused upon notification by the Public Prosecution Department
In all cases, the notice of referral must set out the alleged facts with which the defendant is accused and accurately record the documents of the proceedings.
There must be a period of at least three clear days between the summons and the appearance date, failing which both the summons and any judgment handed down in absentia will be invalid.
Where the person summonsed is resident outside Monaco or is of no known abode, the period of notice required is at least 30 clear days.
Parties can appear before the court either in person or represented by an avocat-défenseur registered at the relevant Bar Association.
Any party represented or assisted by an avocat-défenseur will be considered to be domiciled with the latter unless claim is made to the contrary.
For all hearings parties can entrust the defence of their case to a lawyer registered with a Bar Association abroad. In this case prior authorisation of the president of the court to which the case has been referred is necessary for this lawyer to be able to plead in front of Monegasque courts.
This authorisation is subject to the assistance of a Monegasque avocat-défenseur during proceedings and conclusions, except for the defence of persons accused in front of the Correctional Court.
Parties appearing in person
A party who appears in person at the court may choose self-representation except in cases where the court has prohibited that person from doing so, recognising that emotion or inexperience would prevent the case from being argued to an appropriate standard or with the required clarity.
Parties who are neither domiciled nor resident in the Principality are required to take up residency there on request of the president of the court.
Conduct of proceedings before the Court of First Instance
Once a summons for appearance has been duly recorded at the registry, the defendant is obliged to appear before the court. This appearance is usually made by an avocat-défenseur who represents the defendant.
During the preparatory investigation, lawyers forward to each other the documents they intend to use and exchange written submissions. When the parties consider that the case is ready to be heard, the president of the court sets a date for the hearing.
At that hearing, counsel for the both the plaintiff and the defendant speak and, on conclusion of the oral pleadings, their dossiers are handed over to the tribunal. The case is then adjourned for deliberation and the date for the pronouncement of judgment is announced.
Judgment is handed down at a public hearing between seven days and eight weeks later.
The defendant must appear in person before the Correctional Court assisted, if necessary, by a lawyer. In cases where the offence does not carry a prison sentence the defendant may be represented by a lawyer. A defendant who fails to enter an appearance is judged in absentia.
In appeal hearings, the president first questions the defendant. The witnesses are then heard and the plaintiff, if appropriate, makes his submissions. The Public Prosecution Department then makes its case and the defendant and party liable for damages present their defence. The defendant must be the last to speak.
Judgment is then handed down from the bench or the case is adjourned for further deliberation.
If the accused is remanded, the court imposes the punishment prescribed by law and rules on damages.
If the accused is not remanded the court announces an acquittal.
Judges with specialised functions
Judges at the Court of First Instance, who preside over the judgment of civil and criminal cases, may also be assigned specialised functions, either on a full time basis such as the Examining Judge or the Guardianship Judge, or for individual cases or other assignments (cases regarding the family, accidents in the workplace or bankruptcy, overseeing expert appraisals, etc.).
The Examining Judge
The work of the Examining Judge relates solely to criminal issues.
For judges on the bench, the investigation (or inquiry) involves determining the existence of offences, establishing the circumstances in which they were committed, identifying the alleged perpetrators and, if there is sufficient evidence against the parties concerned, charging them and sending them before the court that will hear the case.
Organisation and operation
In Monaco Examining Judges are selected from among the members of the Court of First Instance and appointed by sovereign ordinance for three years, on the recommendation of the president of the Court of Appeal and the advice of the Public Prosecutor. Their mandate may be renewed for successive periods of the same duration. During the period of their mandate, judges may be removed from investigations only at their own request, or with the approval the Court of Revision which is given in accordance with the rules on disciplinary matters.
The tribunal currently has two examining offices each headed by two judges. In relation to the provision of written information, they must have the assistance of a registrar or, failing that, an individual sworn in by the Examining Judge specifically for that purpose.
Cases are referred to the Examining Judge either at the request of the Public Prosecution Department or as a result of a complaint brought by an injured party (against persons unknown or by way of an application to join civil proceedings). The Examining Judge may also intervene in cases involving serious crimes or cases of flagrante delicto. An investigation must be opened into all serious crimes.
In carrying out his duties, the Examining Judge is empowered to take all measures that he considers necessary to establish the truth.
He or she may, for instance:
- Visit the scene to draw up a report recording the corpus delicti and state of the crime scene and to interview witnesses
- Order searches to be carried out or undertake searches himself
- Appoint one or more experts to prepare the required expert reports
- Interview witnesses whose evidence he considers to be useful
- Issue subpoenas, warrants for a suspect or witness to be brought before him or, indeed, arrest warrants
Where it is necessary to make inquiries abroad, the Examining Judge will send a letter of request for judicial assistance to the relevant foreign authority, through the intermediary of the Public Prosecution Department (3).
Except in relation to the questioning of accused persons, the Examining Judge may delegate specific investigative measures to police officers.
The Examining Judge alone has the power to decide, during the investigation, to release, place under court supervision or detain the accused.
The Examining Judge gives decisions in the form of reasoned orders.
In accordance with the principle of the right to appeal, the Public Prosecutor may, in all cases, appeal the orders issued by the Examining Judge. This right of appeal is also granted to accused persons and plaintiffs, where they can demonstrate an interest in this, subject to the conditions laid down in the Code of Criminal Procedure.
Appeals are heard by the Court of Appeal sitting in chambers as an investigating court. If an Examining Judge fails to appear, the Court of Appeal, sitting in chambers, is also competent to take decisions in his place, at the request of a prosecuting party.
More generally, the president of the Court of Appeal ensures that the examining offices function correctly. He ensures that there is no delay in proceedings. He checks on the situation of persons placed in custody. During the first week of each quarter he receives a detailed report of on-going proceedings from each Examining Judge.
The president of the Court of First Instance may, in the interests of the proper administration of justice, replace an Examining Judge with another Examining Judge at the reasoned request of the Public Prosecutor acting either of his own accord or at the request of one of the parties.
If he must preside over a trial, the Examining Judge may not hear a case into which he has conducted investigations.
(3) The Public Prosecutor addresses the international letter of request to the Department of Justice, whence it is forwarded to the Ministry of Foreign Affairs in order for the relevant foreign authority to be notified through diplomatic channels. Once the request has been served it is returned to the Examining Judge through that same channel. Monegasque tribunals also have the power to issue international letters of request, subject to the same requirements.
The Guardianship Judge
The duties of Guardianship Judge are carried out by a judge of the Court of First Instance, appointed for a period of three years by decree of the Secretary of Justice. Temporary Guardianship Judges may be appointed in the same way.
The Guardianship Judge is competent to decide, in cases stipulated by law, on difficulties in family relations.
As such, he may take the necessary measures for the protection of minors or of incapacitated adults. In these cases he can automatically claim jurisdiction. In addition, he alone is competent to modify a minor’s care where parents are separated or divorced.
In such cases he determines the level of contribution to the care and education of the minor that must be paid by the parent with whom the minor does not habitually reside. The Guardianship Judge rules, in the interests of the child, on the conditions of parental custody or the difficulties arising from this. He can, in the interests of the child, grant correspondence or visiting rights to members of the child’s family or other persons.
The Guardianship Judge also receives the consents required for the simple adoption or legitimising adoption of a minor (1).
In cases where the refusal of consent by the father, mother or guardian of the minor is considered abusive he can override this decision and give consent for adoption.
The Guardianship Judge is also charged with overseeing legal administration, guardianship and other measures taken concerning incapacitated adults.
Organisation and Operation
The Guardianship Judge does not give decisions in public. In the exercise of his responsibilities he is assisted by a registrar or, if the latter is unable to assist, by a person sworn in by the Guardianship Judge for this task. Furthermore the Department of Justice provides him with the assistance of a social worker to carry out, under his authority, any task involving the acquisition of information, supervision or enforcement that is considered necessary.
In criminal matters involving juvenile offenders, in accordance with the special arrangements set in place in 1963 for such offenders, the Guardianship Judge replaces the Examining Judge and, in his place, takes all the measures which he deems appropriate (e.g. inquiries, placement of the minor in a supervised monitoring centre, renouncement of any claim for damages, declaration of discharge or supervision orders).
If the Guardianship Judge refers the juvenile offender to the Correctional Court, this court makes its decision based on the report of the Guardianship Judge.
In all matters, orders of the Guardianship Judge must include a statement of reasons and may be referred to the Court of Appeal, which takes a decision in chambers within a month of the appeal (2).
(1) Legitimising adoption generally corresponds to full adoption, as recognised in French law.
(2) Rulings of the Guardianship Judge are exempt from registration. In case of appeal the parties are exempt from consignation. Documents relating to the proceedings are exempt from stamp duties. Rulings from the Court of Appeal and the Court of Revision are registered without charge.
The Judge for Accidents in the Workplace
The role of the Judge for Accidents in the Workplace was established not by a code of law but under social legislation, namely the amended Act No 636 of 11 January 1958 (loi n° 636 du 11 janvier 1958 ), amending and co-ordinating the legislation on the notification of accidents at work as well as issues of compensation and insurance.
He is required to act as a conciliator in all disputes that may arise between the victim of an accident in the workplace, that person’s representatives and beneficiaries and the employer’s insurance company or the employer himself. It should be noted that Monegasque employment law does not confer competence to social security funds in this matter, but requires each employer to take out a special policy with an insurance company, known as an assureur-loi.
Organisation and Operation
The Judge for Accidents in the Workplace is selected from among the judges sitting on the Court of First Instance. He is appointed on the recommendation of the president of the Court of First Instance for a three-year period, by order of the president of the Court of Appeal. If the appointed judge is unavailable, he is replaced by another member of the court or by the Justice of the Peace, appointed in accordance with the same procedures.
Like the Examining Judge, the Judge for Accidents in the Workplace has an office comprising a registrar and a secretariat.
If required the Judge for Accidents in the Workplace undertakes the investigations and research deemed necessary to identify the causes, nature and circumstances of the accident. If conciliation between the parties cannot be achieved, he refers the case to the Court of First Instance.
The Conciliation Judge for Divorce or Separation Proceedings
The Conciliation Judge hears petitions in cases of divorce or separation.
His role is to seek to achieve reconciliation between the spouses by interviewing each of them separately and then together.
Organisation and Operation
If reconciliation is unsuccessful, he issues a non-reconciliation order and authorizes the plaintiff to file for divorce before the Court of First Instance. By that same order, he lays down the provisional measures governing the residence of the spouses, their personal effects, advances to cover the costs of proceedings, applications for maintenance, interim custody, visitation rights and conditions regarding the education of children.
No application to set aside the decision on those provisional measures may be made but the decision may be appealed within a week of notification.
The Motions Judge
Under Articles 851 and 852 of the Code of Civil Procedure, the president of the Court of First Instance or the judge delegated by him, may issue a petition submitted to the Motions Judge on revenue stamped paper.
This is a procedure that, in particular circumstances, enables intervention with no preliminary adversarial debate. Petitions are enforceable immediately after their registration except in cases where, due to the urgency of the matter, the judge orders that it be enforceable before this formality.
It is possible to make a summary application for an interim order against a petition in cases provided for by law or if, in the absence of any legal impediment, permitted by the judge.
The Summary Judge
In urgent matters, one judge, namely the president of the Court of First Instance or the judge delegated by him, can, in the form of a court order, decide to take provisional summary measures for any case.
The summary court order is handed down following adversary proceedings. The order is enforceable but is not considered to be the final authority on the issue being judged. The summary order does not therefore settle the on-going proceedings.
Parties may appear in person or be represented by a lawyer. If voluntary appearance is not made a summons can be served. The time limit for appearance must be at least one day for persons resident in Monaco.
In cast of great urgency, the president of the Court of First Instance may allow a shorter time limit (short notice, i.e. days, or very short notice, i.e. hours).
No application to set aside the summary order may be made but the order may be appealed within the two weeks following its pronouncement or notification.
The Sentence Enforcement Judge
The Sentence Enforcement Judge is appointed annually by the Secretary of Justice to monitor the enforcement of penal sentences, particularly in relation to:
- Release on probation; under which the sentence is suspended for a period of three to five years, on condition that the convicted individual complies with the measures of aid or supervision stipulated by law
- Cases where a prison sentence is to be enforced in instalments: if the sentence handed down in a penal case is less than three months, the judge decides on the arrangements and may withdraw this benefit from a convicted person who fails to comply with the obligations
- Release on parole: the judge supervises the support measures designed to encourage and support the efforts of a person released on parole to achieve social reintegration and domestic and occupational rehabilitation
Organisation and Operation
Orders issued by the Sentence Enforcement Judge are not open to appeal.
The Bankruptcy Judge
The role of the Bankruptcy Judge relates solely to collective proceedings for the settlement of liabilities, more usually described as bankruptcy
The judge is responsible for monitoring the proceedings, avoiding any delays, monitoring the operations and actions of the receiver(s), who is (are) also named in the same court order.
He is empowered to obtain from appropriately qualified persons all of the information that he deems necessary to assess the situation of the company and its prospects of recovery. For instance, he may summon the creditors to a meeting, appoint or remove by court order one or more of the auditors mandated to assist him in supervising the work of the receivers, take protective measures, etc.
Organisation and Operation
The Bankruptcy Judge is appointed by the Court of First Instance, hearing commercial disputes, in its decision to suspend payments or liquidate the company.
Orders issued by the bankruptcy judge are published in the Journal de Monaco and may be referred to the Court of Appeal, which must rule on them within a month.
(4) This procedure, which is based on article 406 of the Code of Criminal Procedure, is regularly applied in the Principality and causes no particular difficulties.
(5) The authority to grant parole lies with the Secretary of Justice, subject to the conditions of form and duration as stipulated by Sovereign Ordinance no. 4034 of 17 May 1968 ( l'Ordonnance Souveraine n° 4.035 du 17 mai 1968 ).
The Judge Responsible for Overseeing Expert Reports
The Judge Responsible for Overseeing Expert Reports is appointed either by the Summary Judge or by the Court of First Instance to monitor and supervise the requests for expert reports commissioned by those courts.
For that purpose, the judge summons the parties and the experts to a meeting in order to establish when the process will commence and to fix the expert’s retainer to be paid by way of advance. The judge has absolute authority to change the task of the expert, the time-limit for submission of the report and even, in some cases, to replace the expert.
Code of Criminal ProcedureCode de procédure pénale
- Constitution of the Principality
- Sovereign powers
- Executive powers
- The foundations of Monegasque justice and Monegasque Law
- The Supreme court
- The Department of Justice
- The Monegasque Institute for training in the legal professions
- 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