The provisions of criminal procedure in force as of 1 May 2023 (Law No.1.533 and No.1.534)

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 (and Erratum) are already applicable as of 1 March 2023 (see here). The other provisions of Law No. 1.533 enter into force on 1 May 2023.

Similarly, the new articles of the Code of Criminal Procedure introduced by Law No. 1.534 of 9 December 2022 amending certain provisions of the Criminal Code and the Code of Criminal Procedure relating to the preliminary investigation and the appeal for review in criminal matters (and Erratum) come into force on 1 May 2023.

The transitional provisions of Law No. 1.533 and Law No. 1.534 provide for conditions of application over time with regard to certain articles:

1°) SECRECY OF THE PRELIMINARY INVESTIGATION AND INVESTIGATION (professional secrecy and elements that may be made public)

The amended second and third paragraphs of Article 31 CPP are applicable to ongoing investigations. (Law 1.534)

2°) COMPLAINT OF THE INJURED PARTIES (CONSTITUTION DE PARTIE CIVILE) (prior complaint for offences with a maximum penalty of up to three years' imprisonment, consecutive proceedings, arbitration of the amount to be deposited)

The amended Articles 74 and 77 CPP and the new Article 74-1 CPP are applicable to civil action registered by an investigating court as of 1 May 2023. (Law 1.534)

3°) PRELIMINARY INVESTIGATION (ENQUETE PRELIMINAIRE):

- Request for nullity of preliminary investigation acts

New Article 81-4 CPP is applicable to non-flagrant investigations in progress on 1 May 2023, as well as to those opened afterwards. (Law 1.533)

- Regime for home visits and seizures

New Articles 81-5, 81-7 and 81-7-1 to 81-7-4 CPP are applicable to home visits and seizures carried out or requested from 1 May 2023. (Law 1.533)

- Expertises

New Article 81-6 CPC is applicable to expert opinions (technical or scientific advice) required from 1 May 2023. (Law 1.533)

- Requisition of any person, public or private body, to hand over information or documents useful for the determination of the truth

New Article 81-6-1 CPP is applicable to requisitions issued and dated from 1 May 2023. (Law 1.533)

- Search for evidence by means of searches of a person, a vehicle or the inspection of luggage carried out in any place other than a closed building

Article 81-8 new CPP is applicable to searches of a person, a vehicle or the inspection of luggage carried out from 1 May 2023. (Law 1.533)

- Search for evidence on board a vessel present in Monegasque territorial or internal waters

Article 81-8-1 CPP is applicable to inspections of vessels and searches of persons present on or after 1 May 2023. (Law 1.533)

- Summons to appear (comparution) and warrant to bring (mandat d’amener)

Paragraphs 1 and 2 of the new Article 81-9 CPP shall apply to summonses to appear issued as from 1 May 2023. (Law. 1.533)

Paragraph 3 of Article 81-9 of the new Code of Criminal Procedure (warrant to bring) is applicable to ongoing investigations. (Law 1.533)

- Identity check in accordance with Article 2 of Law No. 1.430 of 13 July 2016 and apprehension of a person wanted as the perpetrator of a crime or non-flagrant offence, or suspected of having committed or attempted to commit an offence, or of being prepared to commit one

Article 81-10 CPP is applicable to identity checks and stops carried out from 1 May 2023. (Law 1.533)

- Placement in police custody or hearing under the open hearing regime

Article 81-11 CPP applies to police custody and open hearings commencing on or after 1 May 2023. (Law 1.533)

4°) INVESTIGATION (INSTRUCTION):

- Referral to the investigating judge by requisition of the Public Prosecutor's Office (requisition formalities) or by complaint of the injured party, under the conditions provided for by amended Articles 74 and 77 CPP (see above)

The amended Article 83 CPP applies to the requisitions of the public prosecutor and the complaint of the injured party registered by an investigating court as of 1 May 2023. (Law 1.534).

- Conditions and procedure for charging (first appearance, assisted witness, presence of the lawyer)

New Articles 88-1, 88-2, 166-1 CPP apply to charges brought from 1 May 2023. (Law 1.534)

New Article 88-2-1 CPP applies to summonses for the purpose of indictment dated from 1 May 2023. NB: a person who has been charged before 1 May 2023 cannot challenge the charge under the provisions resulting from the amendments of the new article 88-2-1 CPP. (Law 1.534)

- Informing the victim of the opening of proceedings

The amended Article 89 of the CPP applies to proceedings initiated by an investigating office, on the date of their registration, from 1 May 2023. (Law 1.534)

- Reduction of the time limit within which the investigating judge must issue a reasoned order when he or she does not follow the public prosecutor's request for acts useful for the determination of the truth and any necessary security measures

The second paragraph of the amended Article 91 CPP shall apply to applications by the public prosecutor registered at the registry of an investigating court as from 1 May 2023. (Law 1.534)

- Reduction of the time limit within which the investigating judge must issue a reasoned refusal order for requests for acts by other parties

Amended Article 91-1 CPP is applicable to requests for documents registered at the registry of an investigating court as from 1 May 2023. (Law 1.534)

- Search and seizure regime (premises of certain professionals, ships)

Articles 99-1 to 99-3 CPP apply to searches and seizures carried out or ordered as from 1 May 2023. (Law 1.534)

- Sound and image recording of certain places or vehicles and geolocation

Articles 106-12 as amended and 106-16-1 to 106-16-5 CPP are applicable to technical operations ordered as from 1 May 2023. (Law 1.534)

- Procedures for the first appearance examination (on summons or deferral) by the investigating judge who is considering charging a person who has not already been heard as an assisted witness (formalities to be carried out by the investigating judge, organisation of the presence of the lawyer with a mention in the minutes under penalty of nullity, right to consult the file on the spot, rights granted during the examination, items notified by the investigating judge to the person concerned in the event of an indictment or not)

The amended Article 166 CPP applies to summonses or transfers for the purposes of indictment dated or ordered as from 1 May 2023. NB: A person who has been charged before 1 May 2023 cannot challenge the charge under the provisions of the amended Article 166 CPP. (Law 1.534)

The amended Article 166-1 CPP applies to charges brought on or after 1 May 2023. NB: A person who has been charged before 1 May 2023 cannot challenge the charge under the provisions of the amendments to the new Article 166-1 of the CPC. (Law No. 1.534)

- Extension of the time limit for summoning the defence counsel for questioning

The amended Article 168 CPP applies to summonses for questioning dated from 1 May 2023. NB: A person who has been charged before 1 May 2023 cannot challenge the charge under the provisions of the amended Article 168 CPC. (Law 1.534)

- Extension of the time limit within which the case file must be made available to the accused, the injured parties, and the assisted witness

The amended Article 169 CPP is applicable to any summons for the purpose of examining an accused person or hearing an assisted witness or injured party dated from 1 May 2023. NB: a person who has been charged before 1 May 2023 cannot challenge the charge under the provisions of the amendments to the new Article 169 of the Code of Criminal Procedure. (Law 1.534)

- Procedures for making the case file available to the lawyer/parties after the first appearance of the accused/assisted witness or after the first hearing of the injured party

New Article 169-1 CPP applies to the first appearance of an accused person or an assisted witness or the first hearing of a injured party from 1 May 2023. NB: A person who has been charged before 1 May 2023 cannot challenge the charge under the provisions of the amendments to the new Article 169-1 of the CPC. (Law 1.534)

- Information on the right to remain silent in the event of a flagrant crime or misdemeanour when the investigating judge goes to the scene, before immediately questioning the accused and carrying out any useful confrontations, with a mention in the record on pain of nullity

Article 170 as amended CPP shall apply to any transport to the scene carried out as from 1 May 2023. (Law 1.534)

- Access to the documents or acts of an investigation before they are transmitted to the public prosecutor's office for final instructions (written attestation by the party that it may not be distributed to a third party under penalty of a fine, and the investigating judge's power to oppose the distribution to the parties by a specially reasoned order in view of the risks of pressure)

The amended Article 178 CPP applies to all investigative procedures that are transmitted to the public prosecutor for final requisitioning as of 1 May 2023. NB: A person who has been charged before 1 May 2023 may not challenge the charge under the provisions of the amendments to the new Article 178 CPP. (Law 1.534)

- Pre-trial detention may only be ordered or extended after an adversarial debate during which the accused has the right to speak last, the right to request time to prepare his or her defence, and the time limit for imprisonment and re-appearance in the event of a request

New Article 190-CPP applies to any hearing, at the date of the summons or transfer, relating to a decision ordering or extending pre-trial detention as from 1 May 2023. (Law 1.534)

- Time limit for lodging a request for the nullity of an act of judicial information before the Court of Appeal (accused, assisted witness, victim)

The amended Article 209 CPP applies to judicial information opened after 1 May 2023. (Law 1.534)

- Person considered as assisted witness in case of cancellation of an indictment for violation of the first paragraph of Article 88-1 CPP (absence of serious and concordant evidence making probable the participation, as author or accomplice, in the commission of the facts)

The new third paragraph of Article 210 CPP applies to all charges brought from 1 May 2023. (Law 1.534)

- At the end of the judicial investigation, reduction of the time limit for communication of the Prosecutor General's submissions to the accused, the witness and the injured parties, and extension of the time limit for the latter to make their observations

The amended Article 213 CPP applies to judicial information made available at the court registry as from 1 May 2023. NB: A person who has been charged before 1 May 2023 may not challenge the charge under the provisions of the amendments to the new Article 213 CPC. (Law 1.534)

5°) NEW SPECIAL PROCEDURE APPLICABLE TO THE PROSECUTION, INVESTIGATION AND JUDGMENT OF OFFENCES COMMITTED BY THE LEGAL PERSON

Articles 596-7 to 596-9 as amended CPP are applicable to ongoing proceedings. (Law 1.534)

6°) APPEAL FOR REVIEW

- Abolition of the conditions to which the injured party was subject to appeal against the judgments of the Council Chamber of the Court of Appeal dismissing the case

Article 462 as amended CPP is applicable to judgments of dismissal handed down as from 1 May 2023. (Law 1.534)

- Notification of the application for review to the injured party and to the party civilly liable

The amended second paragraph of Article 477 CPP shall apply to applications filed as from 1 May 2023. (Law 1.534)

- Increase in the time limit for serving and filing a counterclaim, the time limit for the public prosecutor and the other parties to conclude, and certificate of closure of the proceedings

Articles 479, as amended, and new 479-1 CPP shall apply to counterclaims filed with the registry as from 1 May 2023.v(Law 1.534)