Law No.1.533 of 9 December 2022: preliminary investigation, alternative measures to prosecution, police custody, free hearing

Law No. 1.533 of 9 December 2022 on the preliminary investigation and alternative measures to prosecution (JDM No. 8621 of 16 December 2022) is the result of Bill No. 1030 received by the Parliament on 9 April 2021 and voted during the Public Session of 30 November 2022.

Purpose of the reform:

Law No.1.533 modernises criminal proceedings by adapting them to changes in society, “by strengthening the tools available to the judiciary and the police to prosecute offences” while “guaranteeing the rights of defendants”(Legislation Committee, Report on Bill No. 1030, 28 November 2022, p. 1).

It also clarifies and improves the existing provisions of the Code of Criminal Procedure concerning alternative measures to prosecution, police custody and free hearings (contributions of the Legislation Committee), and the preliminary investigation (the most substantial reform).

Law No. 1.534 of 9 December 2022 amending certain provisions of the Criminal Code and the Code of Criminal Procedure relating to the investigation and appeal for review in criminal matters was passed and published on the same day. In the interests of "clarity and intelligibility of the law", the Prince's Government had preferred to divide the wide-ranging reform of criminal procedure into several bills, "rather than envisage a massive text containing several reforms" (Explanatory Memorandum to Bill 1031, p. 3).

This reform originated in the work of the Commission for the updating of the Codes ("Commission de mise à jour des Codes" approved by Sovereign Decision of 26 May 1954, which was set up on the proposal of the Director of Judicial Services. It is made up of magistrates, representatives of the Monaco Bar Association, the National Council and the Government, as well as professors from law faculties).

Entry into force:

The entry into force is set for either 1 March 2023 or 1 May 2023. The transitional provisions specify the modalities of application, on a case-by-case basis.

SUMMARY

The notable contributions of Law No. 1.533 are as follows:

• Introduction of alternative measures to prosecution (known as “third way”) for offences (directing the offender to a health, social or professional structure, penal mediation, removal measures, etc.);

• Tinkering with the regime of police custody (guarantees in the event of prolongation, full body search) [contribution of the Legislation Committee];

• Framing of the free hearing (which allows a person suspected of having committed an offence to be questioned without being taken into custody) [contribution of the Legislation Committee];

• Supervision of the preliminary investigation by the judicial police (the first stage of the criminal trial, to be distinguished from the flagrante delicto investigation) [the most substantial contribution of the reform];

• Introduction of the general procedure for additional information (which allows the Court to request additional investigative acts before ruling).