Overview of ECHR decisions and judgments concerning Monaco (2024)

In the first half of 2024, the European Court of Human Rights ruled on four cases concerning Monaco, in the fields of family law (divorce and children), private international law (international succession), justice (secondment of a French judge) and criminal procedure (investigation).

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FAMILY LAW

ECHR, C.C. v. Monaco, 6 June 2024, Appl. no. 37218/19 (Articles 6 § 1 and 8 ECHR • Inadmissibility)

¤ SUBJECT

• The maintenance of links between the applicant and his two minor children in the context of divorce proceedings, the applicant complaining of not having been able to exercise his visiting rights, of the rejection of his request for a psychological assessment, and of the refusal to set up alternating custody and any right of accommodation (Article 8 ECHR - Right to respect for private and family life),
• The length of the proceedings (6 years and almost 8 months) before the Monegasque courts, which the applicant considered incompatible with the requirement that the case be heard within a reasonable time, and the rejection of his request to cancel the maintenance payments owed to his ex-wife, which the applicant considered he had not been given a fair hearing (Article 6 § 1 ECHR - Right to a fair trial).

¤ SUMMARY

→ On the alleged violation of Article 8 ECHR (complaint unsubstantiated and dismissed)

• The Monegasque courts took appropriate steps in the divorce proceedings to reconcile, as far as possible, the conflicting interests of the parties, while bearing in mind the need to have regard to the best interests of the child.
• The decisions taken to determine the applicant's visiting rights and to reject his requests for alternating residence were not vitiated by arbitrariness or manifestly unreasonable.
• Taken as a whole, the decision-making process appears to have sufficiently protected the applicant's interests. The total duration of the proceedings since the petition for divorce was 6 years and almost 8 months, including three levels of court to rule on the provisional measures and the substance of the divorce, but also the decisions taken in the meantime by the guardianship judge (at first instance and on appeal), including on several occasions in matters of educational assistance, as well as the carrying out of numerous investigative measures given the complexity of the family situation; at no time was the applicant deprived of contact with his children (either freely or in the presence of a mediator), and he enjoyed accommodation rights for almost 1 year before the deterioration in relations with his children called this into question; there was no latency period between the domestic decisions ruling on the applicant's applications that could affect the exercise of his access rights.

→ On the alleged violation of Article 6 § 1 ECHR (complaint unsubstantiated and dismissed)

• Before lodging his complaint with the Court, the applicant did not show that he had used the effective remedy available to him to complain about the length of the proceedings.
• The maintenance allowance was fixed at the end of a procedure that was not arbitrary and did not reveal any violation. The Monegasque decisions were properly reasoned and concluded that there was a disparity in assets between the spouses. The Court noted, however, that the criterion of a lack of "transparency" in some of the income referred to by the Monegasque judge is a vague concept that must be approached with the utmost caution when rejecting an application for a reduction in maintenance payments, since proof of the lack of income is often impossible.

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PRIVATE INTERNATIONAL LAW

ECHR, 18 January 2024, Michaux v. Monaco, Appl. no. 36965/22 and no. 20769/23 (Article 6 § 1 ECHR and Article 1 of Protocol no. 1 • Inadmissibility)

¤ SUBJECT

• Private inheritance dispute concerning various properties located in Belgium, France and Monaco, relating to the effects of the applicant's renunciation of her father's estate, made in Belgium, and her retraction.
• The applicant complained that the Monegasque courts had breached the principles of legal certainty and non-retroactivity of laws and had deprived her of the property in Monaco that she alone should have inherited (Article 6 § 1 ECHR - Right to a fair trial and Article 1 of Protocol No. 1 - Protection of property) by applying to the succession opened in 1963 the Code of Private International Law created by Law No. 1. 448 of 28 June 2017 (having considered that the conflict rules of the Code were immediately applicable to ongoing proceedings and in the absence of transitional provisions) and, consequently, Belgian inheritance rules.
  

¤ SUMMARY

→ On the alleged violation of Article 1 of Protocol No. 1 (inadmissibility ratione personae)

• The complaint that the principle of legal certainty had been violated in order to complain about the deprivation of property that the applicant alone should have inherited, which is covered by Article 1 of Protocol No. 1, is inadmissible ratione personae in the absence of ratification of the said Protocol by the Principality of Monaco.

→ On the alleged violation of Article 6 § 1 ECHR (complaint unsubstantiated and dismissed)

• The concept of "legal certainty" refers to the idea of a stable, complete and predictable legal framework, which excludes any arbitrariness.
• In the present case, no "crystallised legal situation" was destroyed by the Monegasque courts to the detriment of the applicant. No "final judgment" in favour of the applicant was called into question in the present dispute. Absence of divergent case-law and contradictory judgments. There was nothing to suggest that the adoption of Law no. 1.448 of 28 June 2017 might have been intended to favour private adversaries of the applicant or of the Monegasque State, or to correct an interpretation of a text favourable to the applicant.
• Failure to show that the application by the Monegasque courts of Law no. 1.448 of 28 June 2017 was (or would have been) arbitrary.

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JUSTICE

ECHR, Levrault v. Monaco, 9 July 2024, Appl. no. 47070/20 (Article 6 § 1 ECHR • Inadmissibility)

¤ SUBJECT

• Complaint against the decision not to renew the secondment of a French judge to the judicial services of the Principality of Monaco. At the time of the facts, article 5 of the Franco-Monegasque Convention of 8 November 2005 designed to adapt and deepen administrative cooperation between the French Republic and the Principality of Monaco provided that the duration of secondments of French judges to Monaco was 3 years, "renewable once", unless otherwise agreed between the two States and subject to possible exceptions to this principle, subject to review by the Franco-Monegasque Cooperation Commission. The request to be reappointed at the end of the 3-year period had to be accepted by both the Monegasque and French governments. (Note: judges are now seconded for a non-renewable period of 5 years).
• The applicant alleged that his independence had been infringed by the Monegasque administrative authorities and the Supreme Court, which upheld the said decision, which was not sufficiently reasoned and was manifestly arbitrary, peremptory and constituted a denial of justice (Article 6 § 1 ECHR - Right to a fair trial).

¤ SUMMARY

→ On the alleged violation of Article 6 § 1 ECHR (complaint incompatible ratione materiae and dismissed)

• For Article 6 § 1 to apply in its civil aspect, there must be a "dispute" over a "right" that can be claimed, at least arguably, to be recognised under domestic law, whether or not that right is protected by the Convention.
• The legal status of French judges seconded to Monaco does not give them any right to renew their secondment. Article 5 of the Franco-Monegasque Convention did not specify that the renewal of a secondment would be granted automatically at the end of the 3-year period, and the use of the term "renewable", which refers to a hazard, and not "renewed", which expresses a certainty, left no doubt as to the absence of any right to renewal. Decisions relating to the secondment of French judges taken by the two sovereign States that are signatories to an international agreement, fall within the scope of their diplomatic relations and relations of friendship and cooperation.
• Nor can the existence of a right in favour of the applicant be inferred from the constitutional principles relating to the independence and security of tenure of judges. There was no evidence of an agreement or undertaking by the authorities of the two States regarding the renewal of his secondment once the term had expired, or even of a practice of systematically renewing the secondment of foreign judges to Monaco.
• The refusal to renew the applicant's secondment did not relate to a dispute concerning the applicant's "civil rights and obligations", so that Article 6 ECHR did not apply to the facts of the case. The case must be distinguished from other cases in which the Court held that Article 6 was applicable to disputes relating to employment in the judiciary, as the decision refusing to renew the applicant's secondment did not constitute a disciplinary sanction, a dismissal from his post, or an early termination of his term of office, or even a compulsory transfer or temporary suspension. The diplomatic dimension of the secondment, its legal basis in an international convention, and its limited duration made it inherently different from any domestic measure affecting a judge's career in his own country that the Court has had to consider to date.

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CRIMINAL PROCEDURE

ECHR, Bersheda and Rybolovlev v. Monaco, 6 June 2024, Appl. no. 36559/19 et n° 36570/19 (Article 8 ECHR • Violation)

¤ SUBJECT

• Use of data contained on the mobile phone of one of the applicants, a lawyer, as part of an expert report ordered by an investigating judge.
• The applicants complained of the massive, indiscriminate and disproportionate collection of all the data accessible from the mobile phone, including data that had previously been deleted, and of the use made of this data, without respecting the lawyer's professional secrecy (Article 8 ECHR - Right to respect for private and family life).

¤ SUMMARY

• The application lodged by one of the claimants was declared incompatible ratione personae, on the grounds that he could not claim to be a victim.

→ On the alleged violation of Article 8 ECHR (violation as regards the applicant lawyer)

• The complaint of the applicant, a lawyer, relating to the search of her mobile phone and the retrieval, use, recording, storage and transmission of all her data (dates, numbers dialled or received, identity of the callers concerned, content of the various types of messages exchanged), fell within the concepts of correspondence and private life within the meaning of Article 8 § 1 ECHR.
• States have an obligation to protect the confidentiality of exchanges between lawyers and their clients, as well as professional secrecy. While domestic law may provide for the possibility of interference with a lawyer's right to respect for correspondence, such interference must be accompanied by strict specific safeguards. Such a requirement must also apply to all lawyers regularly practising their profession even if, like the applicant, they are not registered with the local or national bar.
• The applicant was subjected to interference with the exercise of her right to respect for her private life and correspondence. The infringements to which she was subjected were comparable to searches and seizures on account of their intrusive nature and the similarity of their effects.
• This interference was not proportionate to the legitimate aims pursued and was therefore not "necessary in a democratic society". The supervising judicial authorities did not redefine, in accordance with the terms of the referral, the limits of the expert's mission and the scope of the investigation, which the investigating judge had extended too widely. This failure to limit the scope of the investigation was compounded by a failure to monitor the procedural guarantees to which the applicant was entitled by virtue of her status as a lawyer and her obligation to respect professional secrecy. Although the applicant's referrals to the Council Chamber of the Court of Appeal and to the Court of Revision constituted adequate and effective remedies in principle, in practice, in the circumstances of the case, they did not enable the measures ordered by the investigating judge outside the scope of the referral to be appropriately remedied. The applicant thus did not benefit from any of the safeguards required by the professional secrecy attaching to her status as a lawyer in the proceedings by which the expert examination of her mobile phone was ordered and carried out.

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