Introduction of guilty plea and penal agreement procedures (draft law no. 266)

Parliamentary draft law no. 266 introducing the guilty plea ('Procédure du plaider coupable') and penal agreement ('convention pénale') procedures was tabled in the Public Session of 28 November 2024 and referred to the Legislation Committee.

The Explanatory Memorandum sets out the creation of the guilty plea procedure as an ‘alternative to the adversarial procedure of the ordinary hearing before the criminal court’ and the penal agreement procedure as an ‘alternative to prosecution of legal persons’, in line with the MONEYVAL Recommendations (immediate results 7.d., 7.g. and 8.f., pp. 53-55):

• ‘avoid unreasonable delays during proceedings, in a manner compatible with the Monegasque legal system and the right to a fair trial’.
• ‘put in place a process to ensure that alternative criminal policy measures are systematically considered where it is not possible, for justifiable reasons, to obtain a conviction for BC.’
• ‘consider the adoption of legislative amendments allowing the confiscation without prior conviction of the proceeds of offences.’

These procedures correspond to the French mechanisms of 'comparution sur reconnaissance préalable de culpabilité (CRPC) (Articles 495-7 to 495-16 French Criminal Procedure Code) and convention judiciaire d'intérêt public (CJIP) (Article 41-1-2 French Criminal Procedure Code).

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SUMMARY

¤ Guilty plea procedure (draft articles 402-1 to 402-11 Criminal Procedure Code) for adults

• Does not apply to minors.
• Applicable to certain offences: counterfeiting currency; laundering the proceeds of an offence; bankruptcy and fraud; breach of trust; fraudulent organisation of insolvency; relating to payment instruments other than cash; illegal use of narcotics and illegal possession of narcotics for personal use; and receiving the proceeds of these offences. Inapplicability to crimes.
• When a person admits the charges against him or her, this procedure is initiated by the Public Prosecutor, either on his or her own initiative or at the request of the defendant or his or her lawyer.
• The first stage is the Public Prosecutor's proposed sentence (fine to the Treasury, imprisonment, forfeiture of seized assets to the State, compensation for the victim's loss), the second is the approval hearing before the President of the Court of First Instance, who may approve the proposed sentences (the approval decision has the effect of a conviction and is immediately enforceable; it may be appealed), or not (ordinary criminal proceedings).
• The defendant must be assisted by a lawyer at all stages of the proceedings.

¤ Penal agreement (draft articles 402-12 to 402-17 Criminal Procedure Code) for legal entities

• This alternative measure to prosecution will apply to legal entities accused of offences of probity: illegal taking of interest, corruption, influence peddling, breaches of procedures for freezing funds and economic resources in application of international economic sanctions, fraud.
• Proposed by the Public Prosecutor, the criminal agreement may consist of one or more obligations (fine to the Treasury, which may not exceed 30% of average annual turnover; implementation of a programme to bring measures and procedures into compliance: code of conduct, internal whistleblowing system for collecting reports, risk mapping, procedures for assessing the situation of customers and suppliers, accounting control procedures, anti-corruption training system, disciplinary system), forfeiture to the State of all or part of the assets seized, compensation for the victim's loss).
• The second stage is the homologation hearing before the President of the Court of First Instance, who will decide whether or not to homologate the proposed agreement (the homologation decision does not entail a finding of guilt or have the effect of a conviction, and is not entered in bulletin no. 1 of the criminal record).

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