Mutual assistance in criminal matters relating to seizure and confiscation pursuant to international conventions (amendment to Sovereign Order no.15.457))

Sovereign Order no. 10.576 of 29 May 2024 (JDM no. 8698 of 7 June 2024) amends Sovereign Order no. 15.457 of 9 August 2002 on international cooperation in seizure and confiscation, the provisions of which apply to requests for mutual assistance submitted on the basis of the following three international conventions:

• United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20 December 1988, known as the "Vienna Convention" (in force for Monaco since 22 July 1991);
• Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990, known as the "Strasbourg Convention" - ETS No. 141 (in force for Monaco since 1 September 2002);
• and now the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism of 16 May 2005, known as the "Warsaw Convention" - ETS No. 198 (in force for Monaco since 1 August 2019). Requests for mutual assistance submitted by a foreign judicial authority are executed in accordance with the rules of Monegasque law.

Requests for mutual assistance submitted by a foreign judicial authority are executed in accordance with the rules of Monegasque law.

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Purpose of the amendments to Sovereign Order no.15.457

• To add the application of Sovereign Order no. 15.457 to requests for mutual assistance submitted on the basis of the Warsaw Convention of 16 May 2005 in view of its ratification by Monaco;
• To ensure that the provisions of Sovereign Order 15.457 are more consistent with the FATF recommendations and to follow up the recommendations of the MONEYVAL Report published in January 2023;
• Tostandardise the system of mutual legal assistance pursuant to international conventions with the ordinary law system (Title XI - International mutual legal assistance, Articles 596-12 to 596-24 of the Code of Criminal Procedure), taking into account its successive amendments, by Law no. 1. 521 of 11 February 2022 containing various criminal measures to combat money laundering and the fraud and counterfeiting of non-cash means of payment, followed by Law 1.536 of 9 December 2022 amending Title XI of Book IV of the Code of Criminal Procedure relating to international mutual legal assistance and finally Moneyval Law no. 1.559 of 29 February 2024 (Part IV).

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Amendments to Sovereign Order no. 15.457

¤ Insertion of a definition of the terms "property" ("biens"), "proceeds" ("produits") and "instrumentalities" ("instruments") for the purposes of Sovereign Order 15.457, which are to be understood within the meaning of Article 12 of the Criminal Code relating to confiscation (new preliminary article):

1. "property": all types of assets, whether tangible or intangible, movable or immovable, tangible or intangible, as well as legal deeds or documents attesting to the ownership of such assets or to rights pertaining thereto;
2. "proceeds" means any property derived directly or indirectly from the commission of a criminal offence or obtained directly or indirectly by committing it;
3. "instrumentalities": any property used or intended to be used in any way, in whole or in part, to commit a criminal offence or criminal offences.

¤ Redefinition of the scope of Sovereign Order no. 15.457

— Modification of the wording of the measures requested on the basis of the Vienna Convention and the Strasbourg Convention to which Sovereign Order no. 15.457 applies (search for and identification of instrumentalities, proceeds and other property liable to confiscation; confiscation; taking of provisional measures), with a new express reference to the article numbers of the said Conventions;

— Addition that requests for mutual assistance submitted pursuant to the Warsaw Convention fall within the scope of Sovereign Order no. 15.457.

¤ Reasons for refusal of mutual legal assistance under Sovereign Order no. 15.457 harmonised with ordinary law (amendment of Article 3)

The grounds for rejecting a request for mutual assistance from a foreign judicial authority on the basis of the three aforementioned conventions, which are reformulated on the basis of the provisions of the Code of Criminal Procedure (Articles 596-8 et seq.) as last amended by Moneyval Law no. 1.559 of 29 February 2024 (Part IV), are as follows:

1. if its enforcement is likely to undermine public order or the essential interests of the Principality;
2. if the acts to which it relates were prosecuted and finally judged in Monaco, provided that the sentence passed is being enforced, has been enforced or is time-barred. However, the request may be granted if the proceedings initiated abroad are not directed solely against the person convicted by the Monegasque courts;
3. if it relates to political offences or offences connected with political offences within the meaning of Monegasque law. Offences established in accordance with the first paragraph of Article 3 of the Vienna Convention are not considered as political offences. For the purposes of the Warsaw Convention, this ground for rejection also does not apply if the offence is the financing of terrorism;
4. if it appears that the requesting State does not provide guarantees equivalent to those provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 4 November 1950;
5. if the acts giving rise to the request are not punishable as "crimes" or "délits" in the Principality of Monaco. As long as the acts constituting the offence are criminalised under the law of the requesting State and under Monegasque law, the condition of dual criminality is considered to have been met, whether or not the law of the requesting State classifies the offence in the same category of offences or uses the same terminology as the State of Monaco to designate it. However, this last ground for refusal does not apply if the request does not require coercive measures.

Henceforth, the request cannot be refused on the sole ground that the offence is also considered to relate to tax matters.

¤ Reformulation of the procedure applicable to mutual assistance in criminal matters relating to seizure and confiscation in the light of recent legislative developments (amendment of Articles 5 to 9)

The main changes concern additional information, confiscation in payment of a sum of money, which has been extended to the three international conventions, and the execution of protective measures requested by a foreign judicial authority, which now fall within the jurisdiction of the investigating judge and the public prosecutor.

It is specified that:

• If the information provided by the requesting State proves insufficient to enable the court of first instance hearing criminal cases or the Court of Appeal to rule on the request for mutual assistance, they may request additional information. To this end, the court communicates its decision to the Directorate of Judicial Services, which forwards it to the foreign authorities for the purpose of communicating the additional information within the time limit it sets.
• Pending receipt of the additional information requested, the court may, in order to guarantee any subsequent enforcement of the confiscation order issued by a foreign court, order additional search and identification measures for the instruments, proceeds and other property liable to confiscation, as well as their seizure, under the conditions set out in articles 396-1 and 596-1 of the Code of Criminal Procedure.
• In the case of a request submitted by a foreign judicial authority on the basis of one of the three above-mentioned international conventions (previously only for the Strasbourg Convention), the confiscation order may consist of the obligation to pay a sum of money corresponding to the value of a specific item of property that constitutes the proceeds or instrumentalities of an offence.
• The Public Prosecutor ("Procureur général") or the Examining Magistrate ("Juge d’instruction") are competent to order, under the conditions set out in the Code of Criminal Procedure, the execution on the territory of the Principality of precautionary measures requested by a foreign judicial authority, pursuant to one of the three aforementioned international conventions (previously, competence under the conditions set out in the Code of Civil Procedure by the President of the Court of First Instance when the matter was referred to him for this purpose by the Public Prosecutor). The procedure has therefore been recast:
  • When the identity of the owners or third parties having or claiming rights over the property is known, the protective measures are served on them by the Public Prosecutor's Office, if necessary at the request of the Examining Magistrate.
  • With the exception of release following the nullity of the seizure measure pronounced by the Monegasque courts at the request of any interested party, the release of a seizure may only be ordered at the request of the instructing authorities.
  • To this end, when a protective measure has been taken under the conditions provided for in the first paragraph, the Directorate of Judicial Services ("Direction des Services Judiciaires") shall, at regular intervals and at the latest every two years, ask the central authority of the requesting State whether it is necessary to maintain the measure.
  • In the absence of a response within six months of this request, the Directorate of Judicial Services will repeat the request.
  • The decision to authorise enforcement of the confiscation order handed down by the foreign court validates the precautionary measures implemented by the Principality at the request of the foreign judicial authority and allows the definitive registration of the securities.
  • The termination of proceedings instituted abroad automatically entails the release of the protective measures ordered.
  • Similarly, the final and enforceable refusal of the Monegasque courts to authorise the enforcement of the confiscation order issued by the foreign court automatically entails the release of the measures ordered.

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