The new provisions of criminal procedure in force since 1 March 2023

Some of the new provisions of the Code of Criminal Procedure (CPP) introduced by Law No. 1.533 of 9 December 2022 on the preliminary investigation and alternative measures to prosecution, police custody and free hearings come into force on 1 March 2023 (the other provisions come into force on 1 May 2023).

SUMMARY

1°) Alternative measures to prosecution for contraventions and misdemeanours (excluding crimes):

New provisions of Articles 34-1 to 34-3 CPP are applicable from 1 March 2023, including to offences committed before this date and for which the public prosecutor's office has not yet ruled on the public prosecution.

The eight alternative measures to prosecution are as follows:

1. Reminding the perpetrator of the rule of law, the penalty provided for and the risks of sanctions incurred in the event of a repeat offence (in practice already implemented by the Public Prosecutor);

2. Referring the offender to a health, social or professional structure;

3. Ask the offender to regularise his or her situation with regard to the law or regulations;

4. Ask the perpetrator to repair the damage by seeking the victim's restitution;

5. Mediation between the perpetrator and the victim;

6. Removal from the country;

7. Prohibition to meet or have contact with the victim(s);

8. Prohibition to meet or have contact with the co-perpetrator(s) or accomplice(s) or any person who incited or provoked the commission of the offence.

The above-mentioned articles provide for the modalities of application and formalities to be fulfilled, including for minors of thirteen years of age or older.

2°) Police custody - Full body searches

New Paragraphs 4 and 5 of Article 60-4 CPP apply to body searches carried out from 1 March 2023.

The above-mentioned provisions strengthen the framework for full-body searches that may result in the person being stripped naked, including minors, with mandatory formalities on pain of nullity.

3°) Police custody - Right to be assisted by a lawyer

New Paragraph 4 of Article 60-9 CPP applies to police custody commencing on or after 1 March 2023.

This provision formally enshrines this right in the Code of Criminal Procedure, from the start of police custody and in the event of its extension, of which the person must be informed.

The waiver of this assistance must be express, and on condition that the person has been previously informed of his or her right not to make any statement. This must be mentioned in the report (procès-verbal).

If the person in custody is unable to appoint a lawyer or if the chosen lawyer cannot be reached, he or she may request that one be appointed for him or her by the president of the court of first instance on the basis of a rota drawn up by the President of the Bar Association of Monaco.

4°) Free hearings

New Article 60-15 CPP applies to hearings starting from 1 March 2023.

The said article provides a precise framework for free hearings (prior information of the person of his or her rights, conditions for minors over 10 years of age).

5°) Preliminary investigation

New Articles 81-1-1 to 81-3-3 and 81-12 CPP are applicable to preliminary enquiries opened on the date of registration with the public prosecutor's office or the public security directorate, from 1 March 2023 to ongoing enquiries, as well as to those opened subsequently.

The said articles regulate the conditions of initiation, prosecution, control, duration and extension, the follow-up given, including the right to be informed, as well as the right to consult the file of the proceedings, to make observations and to request the performance of acts that appear useful for the determination of the truth.

6°) Appearance before the Criminal Court - Flagrant offence - Referral to the Criminal Court

New Articles 374-2 and 399-1 CPP and Article 368 CPP, as amended, apply to investigations in progress on 1 March 2023.

In the context of the appearance, the public prosecutor may instruct the judicial police officer to draw up and serve the report.

The provisions applicable to any person in a state of flagrante delicto (questioned by the public prosecutor, possibly brought before the criminal court, arrest warrant) are also applicable in the case of a non-flagrante delicto punishable by a prison sentence of three years or more.

Formal amendment concerning referral to the Criminal Court by the judicial police officer on the instructions of the public prosecutor.

7°) Supplementary information

New Article 396-1 CPP applies to proceedings referred to a court of law, on the date of the summons, as from 1 March 2023. In the event of multiple summonses, the earliest date shall apply.

This article introduces the supplementary information procedure applicable to all proceedings, which allows the court to request additional investigative acts before ruling.

These provisions are also applicable to procedures for flagrante delicto and immediate appearance.