The Supreme court
From a historical point of view, the Monaco Supreme Court holds a very important place as it was established by the Constitution of 5 January 1911.
It is thanks to this Constitution, adopted by the Sovereign Prince Albert I and drawn up by renowned French and international jurists (Louis Renault, André Weiss, Jules Roche) that the Principality became an effective constitutional monarchy (1). It was founded on democratic principles underlying the structure of government institutions (elected parliament and government, a local authority, independent tribunals and courts), and Title II established fundamental rights and freedoms.
In order to protect and safeguard these rights and freedoms, it also established a higher court, the Supreme Court, which is deemed to be the oldest constitutional court in the world(2). In particular, Title II of the Constitution entitled “Public rights” contained an article (Article 14) which provides as follows: “A Supreme Court shall be established to rule on appeals concerning breaches of the rights and freedoms enshrined in this Title”.
Under Article 58, the Supreme Court had five members appointed by the Prince following the proposal of the Council of State (one seat), the National Council, i.e. the parliament of Monaco (one seat), the Court of Appeal (two seats) and the Civil Court of First Instance (one seat). The organisation structure and functioning of the court were laid down in the Ordinance of 21 April 1911, Article 1 of which set out that the Court “ shall rule, in sovereign capacity, on appeals concerning infringements of rights and freedoms enshrined by Title II of the constitutional law, which do not fall within the jurisdiction of ordinary courts.” An appeal was to be lodged within two months “of the date of the event which gave rise to it or of the date on which the party concerned gained knowledge of it”. On account of the war, the Supreme Court of Monaco was not set up until 1919. It delivered its first ruling on 3 April 1925.
Monaco’s new Constitution, adopted in 1962, confirms the existence of fundamental rights and freedoms, broadening the traditional rights enshrined in the 1911 Constitution (individual freedom and security; legal definition of crimes, offences and penalties; the right to respect for private and family life and the confidentiality of correspondence; property rights; and abolition of the death penalty) to include economic and social rights, including freedom of association (Article 30), the right to engage in trade union activity (Article 28), freedom of employment (Article 25) and the right to strike (Article 28).
It follows that it also confirms the establishment of the Supreme Court (Article 90). More detailed rules concerning its organisation and operation were laid down by Sovereign Ordinance No. 2.984 of 16 April 1963.
(1) This text was preceded by a first constitution dated 25 February 1848 which never entered into force for historical reasons. Based on liberal and democratic principles, and surprisingly modern for its time, it included a statement of fundamental rights and established a Parliament, competent for voting laws, the budget and various taxes. The full version of the 1848 Constitution is published and commented by Louis Frolla in Notions d’histoire de Monaco, Ministère d’Etat 1973 p. 212
(2) Professor Roland Drago: The Supreme Court of the Principality of Monaco, in Revue de droit monégasque No. 0, 2000, pp. 29 et s and Eulogy of Public Law, Speech at the formal sitting of the opening of the Monaco Court of Appeal of 1 October 1999. In terms of years of existence, it may seem that that the Supreme Court of the United States of America is the oldest since the famous Mabury c/ Madison case heard in 1803. But the US Supreme Court can only judge the constitutionality of a law on an exceptional basis, in connection with a trial, where as a full-fledged constitutional court, such as the Supreme Court, can also hear appeals against a specific law and do away with unconstitutional provisions in the legal system.
Organisation and operation
The Supreme Court is made up of five full members and two alternate members appointed by the Prince for a period of four years, upon the proposal of the National Council, the Council of State, the Crown Council, the Court of Appeal and the Court of First Instance. Each of these institutions proposes a full member; only the National Council and the Council of State also propose an alternate member. Two names are proposed for each seat, both for full and alternate members.
In practice, proposals are sent to the Secretary of Justice, who forwards them to the Prince. Under Article 89 of the Constitution, the Prince may reject these proposals and request new ones.
Members of the Supreme Court are appointed by a Sovereign Ordinance, which also designates, from amongst its members, the Court’s President and Vice-President, who is the Acting President when the President is absent or indisposed.
According to Article 2 of the above-mentioned Sovereign Ordinance No. 2.984 of 16 April 1963, members of the Supreme Court must be at least 40 years of age and “selected from among particularly competent jurists”. In practice, members are either eminent professors of public law (3), or senior French judges from the Council of State or Court of Cassation.
The current composition of the Supreme Court is as follows:
- Mr Didier LINOTTE, Associate Professor of Public Law, barrister at the bar of Grasse and the bar of Paris, President
- Mr Jean-Michel LEMOYNE DE FORGES, Professor at the University of Law, Economics and Social Sciences of Paris II (Panthéon-Assas), Vice-President
- Mr José SAVOYE, Professor at the University of Lille II (Law and Health), full member
- Mrs Martine LUC-THALER, Lawyer at the French Council of State and Court of Cassation, full member
- Mr Didier RIBES, Master of requests at the French Council of State, full member
- Mrs Magali INGALL-MONTAGNIER, Justice Counsellor of the President of the Senate, alternate member
- Mr Guillaume DRAGO, Associate Professor of Public Law at the University of Paris II (Panthéon-Assas), alternate member
(3) In this respect, it is worth noting that the Dean Louis TROTABAS and Professor René-Jean DUPUY have been members of the Supreme Court.
Sovereign Ordinance No. 2.984 of 16 April 1963 lays down the rules of procedure before the Supreme Court. These rules are similar to those applicable before the French administrative courts. The main thrust of the rules can be summarised as follows.
1 – Initiating proceedings
A case may be referred to the Supreme Court by any natural person or legal entity that has the capacity and is able to demonstrate an interest, relating to both administrative and constitutional matters. Thus, any law may be declared null and void on grounds of unconstitutionality, at the initiative of any party seeking justice, whether a natural person or legal entity and whether from Monaco or not. It is worth highlighting this special feature since, in countries governed by the rule of law, such direct access to constitutional courts by way of action remedy or exceptional remedy is rare.
The time limit for appeal in respect of both constitutional and administrative matters is two months, either from completion of the formalities of disclosure (notification, formal service or publication of the legal instrument referred to the court), or from the date on which the fact upon which the proceedings are based became known to the interested party.
Applications for the determination of validity or for an interpretation referred to the Court must also be lodged within two months of the date on which the concerned court decision became final.
In administrative matters, an appeal on grounds of abuse of authority may be preceded by a preliminary administrative appeal either before the party responsible for the decision or to a higher administrative authority. The preliminary appeal must be lodged within the above-mentioned time limit. In the event of dismissal or if there is no response from the competent authority within four months, the applicant has a further two months to appeal to the Supreme Court (5).
Cases where it is possible to appeal on grounds of abuse of authority are the same as in French administrative law, namely:
- Defects in external legality: lack of jurisdiction, procedural defect
- Defects in internal legality: breach of the law, unlawful statement of reasons, abuse of power
Appeals to the Supreme Court are not suspensive but may be accompanied by an application for a stay of execution of the contested act, lodged under the same conditions, especially with regard to the time limit.
An appeal may also be made to the President of the Supreme Court by way of interim measure, requesting the latter to take all necessary measures without prejudice to the substantive proceedings.
The appeal to the Supreme Court must be signed by an avocat défenseur registered at the Bar of the Principality. It may however be made by a foreign lawyer with the assistance of a lawyer from Monaco for the purposes of procedural formalities. A receipt is delivered when the appeal is lodged at the court office.
(5) An appeal to a court without jurisdiction is also subject to the time limit for appeal.
2 – Conduct of proceedings
The authorities have two months to submit a counter-appeal, to which the appellant may give a reply, followed, as the case may be, by a rejoinder from the former. The reply and rejoinder must be submitted within one month. Unless the President of the Court authorises otherwise, only four documents may be exchanged. This may affect the time taken to deliver a ruling, which is six months on average.
The President of the Court appoints a Rapporteur (Reporting Judge) for each case. Following the exchange of written documents, the President closes the proceedings and sets a date for the hearing.
The appellant may withdraw from the proceedings or action either in the course of the proceedings or at the hearing. A decision is taken either by the President in the first case and by the Court in the second case.
3 – Hearings
The Court sits in the Monaco Palais de Justice. Hearings are public(6).
For constitutional matters, it is mandatory for the Court to sit as a full court.
Supreme Court hearings are managed by one of the Principality's bailiffs, while the Registry is managed by the Chief Registrar.
The Public Prosecutor acts as the Public Prosecutor at the Supreme Court and concludes hearings.
After the parties have been called, the President calls on the rapporteur to sum up the facts, submissions and pleadings, without giving an opinion. Although the proceedings are in writing, it is common practice for lawyers to plead.
Following proceedings, members of the court withdraw to deliberate in chambers.
(6) They are held on the 2nd floor of the Palais de Justice, in the same room where the Court of Appeal and the Court of Review sit.
4 – Decisions
The decision must be read at a public hearing by a member of the Court within a fortnight of the proceedings. This normally takes place the day following proceedings.
It must include a number of compulsory particulars and a statement of reasons.
Where the Court receives a claim for compensation for damages arising from the unconstitutional nature of a law or the illegal nature of an administrative decision and where it declares same null and void, it must give its ruling on the compensation in the same decision.
The Court may also issue a provisional decision ordering all appropriate measures of inquiry.
Decisions of the Supreme Court are addressed to the Minister of State by the President and are published in the Journal de Monaco (7).
They are subject to appeal by a third party. Such an appeal is only admissible if it is made by a person whose rights have been breached, except for individuals summoned by the President to intervene during proceedings. No further appeal procedure is permitted, unless for an application to correct a material error.
(7) Decisions are also published with, in some cases, notes or comments by renowned jurists, in the report of decisions of the Supreme Court (éditions du juris-classeur, 141, rue de Javel, 75147 Paris CEDEX 15) and some of them are published on the website of the Association of Constitutional Courts using the French Language and that of the Venice Commission of the Council of Europe .
The Supreme Court's jurisdiction covers both administrative and constitutional matters. It is laid down in Article 90 de la Constitution.
In constitutional matters, the Supreme Court rules on applications for annulment, determination of validity and compensation in connection with breaches of constitutional rights and freedoms, arising primarily from the law, namely the legislation expressing, under Article 66 of the Constitution, the agreement of the Prince and the National Council.
In this regard, two features of the public law of Monaco are worth highlighting.
First, as far as action for damages is concerned, the Constitution introduced this highly specific legal remedy before the Supreme Court as an exception to the rule whereby actions for damages against public corporations fall, pursuant to Act No. 783 of 15 July 1965 on the administration of justice, within the jurisdiction of an ordinary court, where they concern compensation for damage arising from a law that the Court has declared unconstitutional (as is also the case of an unlawful administrative decision). It is also worth highlighting that since Article 90-A-2 specifies "applications for compensation in respect of a breach of the rights and freedoms..." it is not necessary for a law or legal act to be at cause. The breach need only result from a substantive act by a public authority, i.e. a blatantly unlawful conduct. In Monaco, therefore, a blatantly unlawful conduct does not, as in France, fall under the jurisdiction of ordinary courts but under that of the Constitutional Court.
Secondly, as far as the determination of validity is concerned, it allows a party seeking justice to raise the exception of unconstitutionality of the law, a procedure which does not exist in countries governed by the rule of law, where procedural arrangements are the same as those applicable to administrative decisions.
Lastly, it is worth noting that the Supreme Court also has jurisdiction to rule on the constitutionality and/or legality of the National Council's standing orders. Rulings on such matters were delivered in the period following the 1962 Constitution.
In administrative matters, the Supreme Court rules on applications for annulment on the ground of abuse of power against decisions taken by various administrative authorities and Sovereign Ordinances in the enforcement of the law, and on the award of the resulting compensation. In practice, most of the Court's judgments are delivered following such appeals.
It also has jurisdiction in the following cases:
- Appeals to the highest instance, as the court of the last resort, against decisions taken by administrative courts
- Applications for interpretation and applications for determination of validity of decisions taken by various administrative authorities and Sovereign Ordinances in the enforcement of the law, and in conflicts of jurisdiction.
Review of decisions
In constitutional matters, it is worth highlighting that, on the basis of the wording of Article 14 of the 1911 Constitution - which mentions, as the purpose of appeals, “breaches of the rights and freedoms established by Title III of the Constitution”, the Supreme Court has relatively extensive powers to review constitutionality.
This was illustrated in a decision delivered on 20 June 1989, at the request of the Monaco property-owners association formed to counter the law defining residential rents for old buildings. The court ruled that the exercise of the right of ownership (Article 24 of the Constitution) “must be reconciled with other constitutional principles and objectives applicable in the State of Monaco; that this is so of requirements arising from the special geographical features of the territory of the State… ».
Similarly, in a ruling dated 1 February 1994 on the same subject, the Supreme Court referred to the “constitutional principle of the equality of all in relation to public burdens”. This decision was commented by Georges Vedel, who pointed out that, while the principle of equality before the law is effectively laid down in Article 17 of Monaco’s Constitution, the principle of equality in relation to public burdens, even though derived from it, is a judicial creation of the Supreme Court.
In administrative matters, the Court determines the legality of decisions referred to it on the basis of principles and the application of techniques comparable to those employed by French courts. This applies, in particular, to cases involving a review of the exercise of discretionary administrative power, where, for example, the Supreme Court does not hesitate to invoke a manifest error of assessment.
However, there are cases where its legislation differs from that of its neighbouring country, for instance where there is a change of jurisdiction due to urgency (8).
(8) 4 December 1979: Mr René Stefanelli, note P. Weil and 19 mars 1979.
Since the new Constitution of 1962, the Supreme Court has delivered many rulings on constitutional matters. These have not always been in favour of public authorities. Far from it… On the contrary, a number of laws and administrative, regulatory or individual decisions have been declared null and void. This includes in particular the annulment of the provisions of loi n° 1.025 de la loi 1er juillet 1980 réglementant l’exercice du droit de grève et de la liberté du travail (Act No 1.025 of the law of 1 July 1980 on the exercise of the right to strike and freedom of employment) (9). It is also worth highlighting the time taken to deliver judgments – on average 6 months and, excluding incidents, always less than one year – which, amongst other features, contribute to ensuring that the Supreme Court gives full satisfaction to the public.
Its decisions have substantially contributed to the construction of the public law of Monaco and, besides the strictly legal aspect of disputes, to promoting harmonious economic and social relations, in such sensitive areas in the Principality as lessor-lessee relationships, employer-employee relationships, trade union rights in hospitals, urban rights, the civil service, the rights of foreigners, etc.
The increase in the number of rulings delivered (10) is proof of the trust that litigants place in it.
(9) 8 July 1981: Union des Syndicats de Monaco
(10) for example, 16 decisions were delivered in 2002, compared to 4 in 1992
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