Violation of the confidentiality of correspondence "necessary for the exercise and respect of the rights of the defence"

Criminal Court, 28 November 2023 Criminal proceedings - Breach of confidentiality of correspondence Art. 22 of the Constitution, Art. 341, 342 and 344 of the Criminal Code) • Criminal irresponsibility in the event of an offence committed to enable the exercise of the rights of the defence

Article 22 of the Constitution guarantees that "Everyone has the right to respect for his/her private and family life and to the secrecy of his/her correspondence".

Article 341 of the Criminal Code states that "The secrecy of correspondence is inviolable", and Article 342 that "The secrecy of correspondence is violated not only when the contents thereof are revealed by any means whatsoever, but also when the names of the persons sending or receiving the correspondence are sought or divulged".

Article 344 of the Criminal Code provides for a prison sentence of between 6 months and 3 years and a fine of between €9,000 and €18,000 as set out in Article 26, 3°).

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SUMMARY

The commission of the offence of violating the secrecy of correspondence, if it is necessary for the exercise and respect of the rights of the defence in the context of legal proceedings that have already begun, constitutes a justifying fact for the said offence and therefore a reason for the perpetrator not to be criminally responsible.

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The facts

The defendant, who lived in Monaco, had learned that a property located abroad had been sold at a greatly underestimated price, without having been consulted about the sale, even though she was a co-owner (the property was owned by a non-trading property company (SCI) governed by foreign law in which she held 58% of the shares and her sister 42%).

In order to trace this property transaction and obtain answers to her questions about her sister's actions, of which she considered herself to be a victim, the defendant opened her sister's bank correspondence (the Monegasque address of which was still used by the Bank after she had moved abroad), and informed her lawyer of their contents.

Criminal proceedings were pending abroad in respect of these acts. The defendant's sister, having noted in these proceedings that reference was made to her own bank statements, brought a civil action in Monaco.

Procedure

Following formal notice from her sister's lawyer, the defendant returned all the bank correspondence to her sister.

The Public Prosecutor dismissed the complaint, and the defendant's sister lodged an appeal against this decision, which was upheld by the Secretary of State for Justice, Director of Judicial Services.

As a result, the defendant's sister had her summoned to appear before the Criminal Court.

The judgement of the Criminal Court

Firstly, the Criminal Court found "that the offence of breach of confidentiality of correspondence with which [the defendant] is charged, and which she has in no way contested, is perfectly clear".

Secondly, it found "that the commission of this offence by the defendant was necessary for the exercise and respect of her rights of defence in the context of legal proceedings already underway, which thus constitute a justifying fact and therefore an obstacle to [her] conviction".

The Court therefore declared the defendant "not criminally responsible for the offence of violating the confidentiality of correspondence that she committed".

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