The principle of presumption of innocence does not apply to administrative police measures without punitive character

Administrative case law • Supreme Court (Tribunal Suprême) of Monaco

SUMMARY

The principle of the presumption of innocence cannot usefully be invoked against a decision falling within the category of administrative police measures that do not constitute sanctions of a punitive nature.

The Supreme Court had occasion to reiterate this in two recent decisions:

— TS 2023-15, 18 June 2024, d. A. / State of Monaco • Action for annulment on grounds of ultra vires ("recours en annulation pour excès de pouvoir") of a decision by the Director of Employment ("Directeur du travail") revoking a work permit (rejection)

— TS 2023-01, 30 November 2023, Monsieur A. M. / State of Monaco • Action for annulment on grounds of ultra vires ("recours en annulation pour excès de pouvoir") of a decision by the Minister of State ("Ministre d'Etat") refusing to approve the articles of association and incorporation of a Monegasque public limited company ("société anonyme monégasque") (rejection)

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IN DETAIL

¤ TS 2023-15, 18 June 2024, d. A. / State of Monaco • Action for annulment on grounds of ultra vires ("recours en annulation pour excès de pouvoir") of a decision by the Director of Employment ("Directeur du travail") revoking a work permit (rejection)

• The decision of 24 October 2022 revoking the work permit that had been granted to the applicant on 24 February 2020, an administrative police measure, was based on the results of an investigation carried out by the Public Safety Directorate ("Direction de la Sûreté publique") on the basis of Article 3 of Law of 13 July 2016 on various measures relating to the preservation of national security, and Ministerial Order no. 2016-622 of 17 October 2016;
• The investigation had revealed that the applicant had been implicated as perpetrator in the commission of acts of conjugal violence in a state of recidivism, for which he had been sentenced on 8 October 2020 by the French Judicial Court (Tribunal Judiciaire) of Nice;
• On the basis of this investigation, the Director of Employment considered that "this situation [is] obviously likely to undermine public order’ and that the applicant no longer presented the ‘appropriate guarantees" to hold his job on Monegasque territory;
• The applicant argued that the Directeur of Employment had disregarded the principle of presumption of innocence, guaranteed by Article 6 § 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, He argued in particular that the decision was based on facts for which the French Criminal Court ("Tribunal correctionnel") of Nice had acquitted him in a judgment of 22 June 2022, and that no account had been taken of the fact that since his conviction on 8 October 2020, he had never disturbed the public order or been the subject of reprimands by the Monegasque authorities;
• The Supreme Court held "that the principle of the presumption of innocence does not apply to administrative police measures, which do not constitute sanctions having the nature of punishment; that the contested decision does not constitute such a sanction; that, therefore, the plea alleging breach of Article 6 § 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is inoperative;".

¤ TS 2023-01, 30 November 2023, Monsieur A. M. / State of Monaco • Action for annulment on grounds of ultra vires ("recours en annulation pour excès de pouvoir") of a decision by the Minister of State ("Ministre d'Etat") refusing to approve the articles of association and incorporation of a Monegasque public limited company ("société anonyme monégasque") (rejection)

• The decision of 17 February 2022 refusing to grant authorisation to create the company, an administrative police measure, was based on the results of an investigation carried out by the Public Safety Directorate ("Direction de la Sûreté publique") on the basis of Article 3 of Law of 13 July 2016 on various measures relating to the preservation of national security, and Ministerial Order no. 2016-622 of 17 October 2016;
• The investigation revealed that the applicant had been placed under judicial supervision since 8 November 2021 as part of a rogatory commission for economic offences (charges of "fraud, complicity in fraud, unauthorised practice of the functions of chartered accountant and certified accountant, money laundering and complicity in the concealment of money laundering");
• On the basis of this investigation, the Minister of State considered that the applicant did not present "all the guarantees of good character that the administration is entitled to expect from the founder and future shareholder of a Monegasque public limited company";
• The applicant argued that there had been a breach of the principle of presumption of innocence, enshrined in Article 14 § 2 of the International Covenant on Civil and Political Rights and Article 6 § 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as in Article 180 of the Code of Criminal Procedure, that the investigating magistrate had not forbidden him to continue his professional activities in connection with the management or administration of Monegasque companies, and that the contested decisions amounted to affirming that a person placed under judicial supervision is necessarily guilty of the criminal offence of which he is accused even though the investigation has not been completed, when on the contrary the principle of the presumption of innocence should have worked in his favour;
• The Supreme Court considered "that the principle of the presumption of innocence set out in the Convention for the Protection of Human Rights and Fundamental Freedoms and in the International Covenant on Civil and Political Rights does not apply to administrative police measures; that, consequently, the argument based on the violation of this principle is inoperative".

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NOTE:

See also TS 2010/04, 29 November 2010, T. / Minister of State • Action for annulment of a decision by the Minister of State refusing to repeal a refoulement measure from Monegasque territory ("Considering that the principle of presumption of innocence does not apply to administrative measures; that, consequently, the pleas alleging breach of article 14-2 of the Covenant and article 6-2 of the European Convention cited above are inoperative;").

The Supreme Court's position is the same as that adopted by the French administrative courts (see, for example, for a recent decision, Cour administrative d'appel de Lyon, 6th Chamber, 11 June 2024, 23LY00443: "(...) Mrs A... cannot usefully invoke the presumption of innocence, when the contested decision is in any event a police measure without a punitive character").

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