B Explanatory
memorandum by Mr Xuclà, rapporteur
1 Introduction
1. The Principality of Monaco joined the Council of
Europe on 5 October 2004. The Parliamentary Assembly opened a monitoring
procedure following its adoption of
Opinion 250 (2004) on the Principality of Monaco's application for membership
of the Council of Europe. In
Resolution
1690 (2009) on the honouring of obligations and commitments by Monaco,
the Assembly decided to close the monitoring procedure and to carry on
a dialogue with the Monegasque authorities on the questions raised
in that resolution, particularly in paragraph 18 thereof, and any
other question that might arise out of Monaco's obligations as a
Council of Europe member State, namely:
- the ratification of Protocols Nos. 1 and 12 to the European
Convention on Human Rights (ETS Nos. 9, 177 and 5);
- the ratification of the European Social Charter (revised)
(ETS No. 163);
- the ratification of the Convention
on Cybercrime (ETS No. 125);
- the expeditious enactment of a new law on the functioning
and organisation of the National Council, to take account of the
constitutional amendments of 2002;
- the reform of the Code of Criminal Procedure and finalisation
of the reform of the Criminal Code;
- the review of the issue of the international conventions
and treaties for which the National Council must adopt a law of
ratification.
2. The Monitoring Committee appointed me rapporteur on the post-monitoring
dialogue with Monaco in February 2014, after the previous rapporteur,
Ms Anne Brasseur, was elected President of the Parliamentary Assembly.
I would like to pay tribute to her work. During this reporting period,
the Monitoring Committee requested an opinion from the Venice Commission
on the balance of powers in the Constitution and legislation of
the Principality of Monaco.
Note The Assembly observed
the elections of the National Councillors on 10 February 2013, including
conclusions in its observation report.
Note
3. In order to prepare this report, I carried out three fact-finding
visits to Monaco, on 5 and 6 June 2014, from 5 to 7 November 2014
and on 20 February 2015,
Note and
had regular contacts with the representatives of Monaco at the Council
of Europe.
3.1 During its meeting
in Paris on 14 November 2014, the Monitoring Committee organised
a hearing with Mr Laurent Nouvion, President of the National Council,
and Mr Jacques Rit, Chairperson of the Special Committee in charge
of the amendment of electoral law and the law on the organisation
and functioning of the National Council. This provided an overview
of the expectations and constraints deriving from Monaco’s membership
of the Council of Europe and of the state of play of the preparation of
the Law on the functioning and organisation of the National Council.
3.2 On 25 November 2014, I met Mr José Badia, Government Counsellor
for External Relations and Cooperation, in the presence of Ambassador
Claudette Gastaud, Permanent Representative of Monaco to the Council
of Europe, to discuss in particular the mechanisms for the ratification
of international instruments.
3.3 Finally, I organised a working meeting on 10 December
2014 in Paris with Mr Laurent Anselmi, Director General of the Legal
Affairs Department of the Government of Monaco, Mr Jean-Laurent Ravera,
Head of the International Law, Human Rights and Fundamental Freedoms
Unit of the Government of Monaco, and Mr Jörg Polakiewicz, Director
of Legal Advice and Public International Law of the Council of Europe.
Contacts were also made with Mr Régis Brillat, Executive Secretary
of the European Committee of Social Rights. I would like to thank
these two senior Council of Europe Secretariat members for their
availability and advice. These meetings and consultations allowed
me to get better acquainted with the specific characteristics of
the country – which had been fully acknowledged by the Council of
Europe when Monaco joined the Organisation.
3.4 At the time of my visit of 20 February 2015, I was able
to examine, with Minister of State Mr Michel Roger and the members
of the government, on the one hand, and the President of the National
Council, Mr Nouvion, and the members of the National Council and
the Monegasque delegation to the Parliamentary Assembly, on the
other hand, the state of progress of the procedures under way with
a view to completing compliance with the final commitments, and
I encouraged the authorities to continue their efforts and their
consultations.
3.5 In March 2015, I acquainted myself with the comments
Note forwarded
by the President of the National Council, the President of the Monaco
delegation to the Parliamentary Assembly and the Monegasque Government,
on the preliminary draft report which had been submitted to them,
and on which the final drafting of this report draws.
4. I would like to express my warmest thanks to the President
and the members of the National Council of Monaco and to the Monegasque
authorities for the open, frank and constructive discussions we
had, and for organising high-level contacts, including with HSH
Prince Albert II, the Minister of State, Mr Roger, and the members
of the Government Council, the President of the National Council,
Mr Nouvion, and the delegation of Monaco to the Parliamentary Assembly,
chaired by Mr Jean-Charles Allavena. I was in particular encouraged to
pursue my efforts by the positive discussions I had with HSH Prince
Albert II and his readiness to address all the remaining issues
and to support the working out of legal solutions.
5. Pursuant to the findings made by my predecessor in 2011 and
2012, I intended to explore, with the Monegasque authorities, how
the last remaining commitments that Monaco had undertaken when it
joined the Council of Europe ten years ago could be fulfilled, as
prescribed in
Resolution
1690 (2009) on the honouring of obligations and commitments by Monaco.
This report reflects discussions with the Monegasque authorities and
is also inspired by the findings made by different Council of Europe
monitoring mechanisms, in particular the report prepared by the
European Commission against Racism and Intolerance (ECRI) and published
on 8 February 2011 and its conclusions of 19 March 2014,
Note the compliance reports on Monaco
adopted by the Group of States against Corruption (GRECO) on 1 October
2010 and 7 December 2012 (first and second evaluation rounds)
Note and on 20 June 2014 (third evaluation
round)
Note and the first progress reports submitted
by Monaco to the Committee of Experts on the Evaluation of Anti-Money
Laundering Measures and the Financing of Terrorism (MONEYVAL) in
2011 and 2013.
Note
2 The specific
characteristics of Monaco in the context of Council of Europe membership
6. It might be useful to recall here the specific characteristics
of Monaco:
6.1 The Principality,
which covers a small area of 2.2 km², has about 36 000 residents,
of whom only 8 000 are Monegasque citizens. Consequently, Monegasque
citizens are a minority in their own country (representing 21.5%
of the population). They therefore enjoy preferential treatment,
particularly in respect of employment and housing. The application
of “national preference” is considered a prerequisite to enable
Monegasque citizens to be able to live on Monaco’s territory. Monaco
generates more than 50 000 jobs. It is an economic hub which benefits
the surrounding areas (France and Italy). Monaco has a very low
unemployment rate: this healthy economic context is the reason why
the application of the principle of “national priority”,
Note which
seems to be flexible, does not lead to social tensions among national
communities.
6.2 The population is also characterised by the presence of
“enfants du pays”,
Note which
is tending to decrease as a result of the ageing of that population,
the pressure on real estate and naturalisations. A more precise
definition of the concept of “enfants du pays”, or even the creation
of a status, is currently being considered.
6.3 As explained by Council of Europe constitutional experts,
Monaco’s is the only system of its kind, a limited constitutional
monarchy with legislative power vested in both the sovereign Prince
and the National Council. A network of advisory bodies mitigates
the extensive powers of the Prince as compared to the limited powers
of the National Council. Several mechanisms encourage dialogue, compromise
and consensus: political struggles are replaced by consensual functioning
of the institutions. The government is not accountable to the National
Council.
Note The current
political regime enjoys a high degree of consensus among the population
and political leaders, who are attached to this regime and do not
want to change it.
6.4 The exercise of legislative power in the Principality
is a shared competence. Article 66 of the Constitution stipulates
that “the instigation of law implies the agreement of wills of both
the Prince and the National Council. The Prince alone may initiate
law. Deliberating and voting on bills are the National Council’s
responsibility. It falls to the Prince to sanction laws, which confers
on them a binding power through promulgation”. Parliamentary business
is therefore conducted on a basis of consensus and negotiation:
while no law can be passed without the consent of the National Council,
the government is entitled, in accordance with the Constitution,
to “withdraw the bill before the final vote”. The National Council
has exclusive responsibility for its own agenda and the examination
of draft laws – this may however be limited by the Prince’s prerogative
to convene the National Council in extraordinary session. While
the Prince alone has the right to initiate law (Article 66, paragraph
2), the National Council has the right to initiate legislation indirectly:
since the constitutional reform of 2002, it has been able to draft
“bill proposals” (propositions de loi).
The Minister of State must make his position known within six months of
receiving such a “bill proposal”. He can either make it a government
bill (amended if necessary), which must then be tabled within a
year, or he can decide to halt the legislative process. According
to the Constitution, such a decision, however, must be explained
by a declaration that can be – and in fact is – debated by the National
Council during an ordinary session held in public.Ibid., p. 12.
6.5 However, the fact that the government, as well as the
Director of Judicial Services, are solely responsible to the Prince
and not to the National Council poses a real challenge for democracy,
even though the sovereign and the National Council, which share
legislative power, check each other. Council of Europe experts therefore
stressed that “the apportionment of the respective competences is crucial”
Note:
while the legislative sphere and the regulatory sphere are clearly
defined by the Constitution
Note, the Constitution
is however silent on how to solve new issues or in case of doubt.
Note There is another pending legal
issue that has already been raised by previous Assembly rapporteurs
and will need consideration in the future: in cases where a ratification
law is not necessary, “new offences and criminal penalties can be
created by the sole means of a Sovereign Order implementing an international treaty
that provides for such offences and penalties, whereas Article 20
of the Constitution provides that no penalty may be imposed or applied
except in accordance with the law”.
Note
6.6 The Principality has historical links with France. Monaco
and France signed, on 8 November 2005, the convention on adapting
and extending administrative co-operation between the French Republic
and the Principality of Monaco,
Note which was ratified
by France in 2008. Since then, in order to ensure that the principle
of non-discrimination is complied with, it has been possible for
Monegasque citizens to be appointed to senior public and governmental
positions, which hitherto had been reserved for French nationals.
7. Monaco has, since its accession in 2004, played an active
role in the Council of Europe. It has signed and ratified 45 Council
of Europe treaties, and signed a further five treaties: the Protocol
to the European Convention on Human Rights, the European Social
Charter (revised), the Convention on Cybercrime and the
Convention
on Mutual Administrative Assistance in Tax Matters and its Protocol (ETS No. 127 and CETS No. 208), on
13 October 2014.
Note Monaco has made an active contribution
to the work of the Council of Europe, as shown by the Monegasque
delegation’s involvement in the work of the Parliamentary Assembly,
by the Principality’s fundamental contribution in organising a high-level
conference on children’s rights in April 2006 and a conference on
the Council of Europe strategy for the rights of the child 2012-2015
on 20 and 21 November 2011, under the Presidency of HRH the Princess
of Hanover, and in funding a number of Council of Europe activities
through voluntary contributions.
8. On the occasion of the 10th anniversary of Monaco’s accession
to the Council of Europe, on 5 October 2014, the Monegasque authorities
deposited ratification instruments for the Council of Europe Convention
on the Protection of Children against Sexual Exploitation and Sexual
Abuse (CETS No. 201, “Lanzarote Convention”) and the Council of
Europe Convention on Preventing and Combating Violence against Women and
Domestic Violence (CETS No. 210, “Istanbul Convention”). This confirmed
that the Principality is firmly anchored within the Organisation,
attached to its ideals and a contributor to its activities.
9. Today, Monaco has to face a number of global challenges and
find the right balance between preserving its specific characteristics
and opening up to the world. During my visits, I discussed with
various stakeholders the consequences of the very tense real estate
market for the Monegasque population, the challenges posed by the
reform of the pension scheme adopted in 2012 and the labour legislation,
in particular in the public sector, the situation of the economy
and of local businesses in the face of globalisation, etc.
10. At the same time, the Principality will engage in important
negotiations with the European Union: on 16 December 2014, the European
Council “reiterated its commitment to building closer ties with
Andorra, Monaco and San Marino”, considering that “a closer association
with the three States is in the interest of the European Union.
It looks forward to deepening and strengthening the current relations
with them, which are extensive but fragmented, taking into account
the importance of a coherent approach”.
Note This should allow the European
Commission to launch negotiations with Monaco, which could have
a significant impact on its economic development.
3 Review of the progress
made on compliance with the remaining commitments to be fulfilled
by Monaco
11. Further to the organisation of the above-mentioned
hearings and meetings, I proposed to draft a road map for bringing
the post-monitoring dialogue to an end, which was endorsed by the
Monitoring Committee at its meeting on 14 December 2014 and shared
with the Monegasque authorities. On 19 January 2015, additional
information was sent by Mr Roger, Minister of State, as well as
by Mr Nouvion, President of the National Council, and Mr Allavena,
Head of the Monaco Delegation to the Parliamentary Assembly. I am convinced
that with strong political will and a high level of co-operation
and trust, we will be able to address the remaining commitments
to be honoured. I want to stress here, once again, that the Council
of Europe remains ready to provide expertise and advice to overcome
any potential legal impediments to ratification by Monaco of these
international instruments. The road map included the following requirements
of the authorities of Monaco:
3.1 Ratification of
the Protocols Nos. 1 and 12 to the European Convention on Human
Rights
12. When it joined the Council of Europe, Monaco committed
itself to ratifying Protocols Nos. 1
Note and 12
Note to the
European Convention on Human Rights. Protocol No. 1 covers notably
the protection of property, education and free elections. The right
to property, as understood by the European Court of Human Rights,
but also the “socialisation of the concept of property”, as it arises
from the Court’s interpretation, taken in conjunction with the general
principle of non-discrimination contained in Article 14 of the Convention,
is a matter of concern for the Monegasque authorities
Note,
where the regulations provide for differentiated access to housing
rights for citizens, “enfants du pays”, residents and foreigners,
and provides for specific regulation of real estate.
Note This
question has been discussed on various occasions with the Monegasque
authorities, and was again recently during my meeting in Paris on
10 December 2014 with Mr Anselmi, Director General of the Legal
Affairs Department of the Government of Monaco, and Mr Polakiewicz,
Director of Legal Advice and Public International Law of the Council
of Europe. In his letter of 19 January 2015, the Minister of State, Mr Roger,
stressed that the government would continue to examine with attention
all the solutions that were envisaged during the 10 December 2014
meeting, “as they might lead to ratification of both Protocol No.
1 and the Social Charter”. The support expressed by the Minister
of State is an encouraging signal.
13. Considering the potential legal impediments to ratification
of the Protocol, the Monegasque authorities conducted on 27 February
2015, in co-operation with the Council of Europe, a thorough expert
examination of the feasibility of ratification and the possible
legal options (reservations, declarations) open to Monaco for ratifying
these instruments, taking into account Monaco’s specific characteristics,
and requested the Council of Europe’s expert advice on the possible
drafting of reservations. Two options were explored:
13.1 The first option would be to
draft a reservation that would exclude from the scope of Article
1 of Protocol No. 1 only certain provisions of the Constitution,
in particular those relating to the priorities given to nationals
and the entitlements of non-nationals. Such reservation, however,
is likely to be recognised as invalid by the Court, not least because
of the overly broad nature of the constitutional provisions on which
it is based.
13.2 The second option would be based on an “exclusive enumeration”
approach, based on an exhaustive list of any domestic legislation
that is to be excluded from the scope of the said Article 1. Such an
arrangement, however, would not cover any provisions that might
be adopted after the Protocol is ratified. The authorities pointed
out that a reservation of this kind would be ill-equipped to deal
with new requirements, as and when they emerged, and, once again,
there is risk that it would be rejected by the Court, on the ground
that it was too general owing to the large number of texts included
in the list.
Note
14. Based on this assessment, the government indicated that, while
Monaco has made every effort, in good faith, to honour its international
commitments in this area, through numerous discussions and meetings
with the Council of Europe’s technical services, ratification of
Protocol No. 1 seemed to be unlikely. The same argument could be
made, if not more so, for Protocol No. 12.
Note However,
I took good note that the Monegasque authorities remain committed
to finding a solution, and welcomed the idea of setting up a working
group which could look into new technical aspects which might make
it possible to consider ratification,
Note following
the positive and useful experience of previous technical consultations
organised with Council of Europe experts. I also took note that
both the Monegasque authorities and the Council of Europe experts
shared the same vision that, at the present moment, none of the
two mechanisms of reserves explored (see paragraph 13) would fully safeguard
the Monegasque specificities.
15. Considering ratification of Protocol No. 12 to the European
Convention on Human Rights and the replies provided by the authorities,
I can only encourage the Monegasque authorities to further explore,
with the Council of Europe, the possibilities that could enable
Monaco to overcome the legal obstacles and ratify this protocol.
16. I believe that ratification of these two protocols would further
enhance the protection of human rights in Monaco. In this respect,
I would like to welcome as a very positive move the decision made
by the Prince in October 2013 to create the office of High Commissioner
for the Protection of Rights, Liberties and for Mediation.
Note Ms Anne Eastwood was
appointed High Commissioner in February 2014. Her remit includes
the protection of human rights (Articles 15 to 27) and the fight
against discrimination (Articles 28 to 32). She also has responsibility
for mediation. The European Commission against Racism and Intolerance
(ECRI) considers “that the setting up of the High Commissioner constitutes
significant progress towards better protection against racism and
discrimination”, while calling for greater independence of the institution.
Note
3.2 Ratification of
the European Social Charter (revised)
17. The European Social Charter (revised) has been ratified
by 33 member States and signed by 12 (including Monaco in 2004).
While social standards are considered high in Monaco, there is a
fear that direct applicability of the European Social Charter (revised)
could undermine the “social covenant” established in Monaco and
could undermine the application of “national preference” and some
specific social allowances which are reserved for its citizens.
18. It should be recalled in this connection that in 2004, when
the Principality of Monaco joined the Council of Europe, the Assembly
encouraged the Organisation to take account of the preferential
treatment from which Monegasque nationals benefit in respect of
housing and employment, but at the same time emphasised that the
European Social Charter (revised) offered the requisite flexibility
for taking account of parties’ specific characteristics.
Note
19. Further to my series of consultations, I invited the Monegasque
authorities to conduct, in co-operation with the Council of Europe,
a thorough expert examination of the feasibility of ratifying the
European Social Charter (revised), to identify articles and paragraphs
that could be accepted by Monaco
Note and
the legal options (declarations) open to Monaco for ratifying the
European Social Charter (revised), taking into account Monaco’s
specific characteristics, and to identify the appropriate mechanisms
relating to the applicability of the Charter ensuring that the legal
effects of the Charter do not affect the specific characteristics
of Monaco.
20. Despite the difficulties mentioned by the authorities, citing
the specificities of Monaco, the government signalled, on 11 March
2015, its readiness to find a legal solution. We appreciate the
positive will expressed by the government to consider the formulation
of a legal text in order to ratify the European Social Charter (revised).
However, focusing specifically on this point, the government is
still looking for an appropriate solution, both in the political
and technical spheres. We express our confidence in the process,
which has already begun, and urge all the parties concerned to find
the appropriate mechanisms and initiate legislative steps to bring
this process to an end, as soon as possible, in co-operation with
Council of Europe experts.
21. I believe that the ratification of the Charter, which provides
for a ratification “à la carte”, could be a strong signal of Monaco’s
commitment to upholding its already existing high social standards.
I strongly encourage the Monegasque authorities to further explore
all legal possibilities which would enable them to honour this commitment
whilst safeguarding the specificities of Monaco. Ultimately, if
ratification, for serious and justified reasons, does not appear
feasible at the moment, Monaco should incorporate the substance
of the rights guaranteed in the European Social Charter (revised)
into its domestic legislation.
3.3 Ratification of
the Convention on Cybercrime
22. The process of ratification of the Council of Europe
Convention on Cybercrime, which was signed by Monaco in May 2013,
is about to be completed. The National Council adopted, on 5 December
2013, the Law No. 1402 approving ratification of the Convention
on Cybercrime.
23. On 28 February 2015, the government submitted to the National
Council a draft law on the fight against high-tech crime aimed at
bringing Monaco’s legislation into line with the Cybercrime Convention.
We now expect the National Council to swiftly adopt this draft law
to enable the government to deposit the ratification instruments.
The President of the National Council indicated that the vote for
the adoption of this law will be on the agenda of the public sitting
of 16 and 17 June 2015.
3.4 Expeditious enactment
of a new law on the functioning and organisation of the National Council,
enabling account to be taken of the constitutional amendments of
2002
24. The bill amending Law No. 771 of 25 July 1964 on
the organisation and functioning of the National Council was tabled
in the National Council by the government in December 2009. The
setting up of the “Special Committee in charge of the amendment
of electoral law and the law on the organisation and functioning
of the National Council” in 2013 has speeded up the preparation
of the law. The Monitoring Committee was informed about the state
of play of this Committee at its meeting on 14 November 2014. Mr Nouvion,
President of the National Council, and Mr Rit, Chairperson of the
Special Committee, presented the substantial changes that could
be achieved thanks to this law to increase the administrative capacity
of the National Council, facilitate the work of the part-time National
Councillors (with the recruitment of parliamentary assistants),
formalise the role of political groups, enlarge the Bureau of the
National Council with the participation of the opposition, etc.
25. On 14 December 2014, the Special Committee unanimously adopted
the amendments to Law No. 771 on the functioning and organisation
of the National Council, and this was transmitted to the government.
The drafting of the Rules of Procedure of the National Council should
be examined by the end of March 2015. We welcome these positive
developments. We now expect the government to swiftly consider the
amended law, so as to enable the National Council to adopt it in
good time. In this context, I was informed that the government has
not found, in the text submitted by the National Council, any major
difficulties that might delay the review of the amended draft law.
I was pleased then to learn that the President of the National Council
had decided to table the vote for the adoption of this law at the
public sitting of the National Council of 16 and 17 June 2015.
3.5 Reform of the Code
of Criminal Procedure and finalisation of the reform of the Criminal
Code
26. A number of positive steps have been taken to reform
the Code of Criminal Procedure and the Criminal Code (as expected
in 2009) and other legislation to bring Monegasque legislation into
line with the Council of Europe’s standards in the fields of fundamental
rights and the fight against corruption. As highlighted by my predecessor,
Ms Brasseur, the pragmatism of the judicial bodies, which are relying
on the case law of the European Court of Human Rights even before
the requisite legislation has been adopted, deserves to be acknowledged.
The President of the Supreme Court, Mr Linotte, also informed me
about the drafting of a future Sovereign Order which will allow
the formalisation of already existing practices in order to specifically incorporate
fair-trial principles derived from the European Convention on Human
Rights. We should mention here:
- the
adoption of Law No. 1398 of 24 June 2013 on the administration and
organisation of the judicial system;
- the adoption of Law No. 1399 of 25 June 2013 reforming
the Code of Criminal Procedure as regards police custody;
- the adoption of Law No. 1394 of 9 October 2014 reforming
the Criminal Code and Code of Criminal Procedure as regards corruption
and special investigation techniques;
- the submission to the National Council, on 10 December
2012, of draft Law No. 879 comprising various measures in the field
of State liability and remedies;
- the preparation of a Sovereign Order designed to specifically
incorporate fair-trial principles derived from the European Convention
on Human Rights in the Supreme Court’s own organisational and procedural rules,
which should be published by the end of March 2015.
Note
27. This requirement can thus be considered to have been satisfactorily
fulfilled or to be in the process of being fulfilled.
28. As a member of the Criminal Law Convention on Corruption (ETS
No. 173) since 2007, Monaco is subject to a regular monitoring procedure
by the Group of States against Corruption (GRECO). As a consequence,
we welcome an initial reform of the Law on the funding of election
campaigns, in order to regulate not only campaign expenditure, but
also campaign donations. In this context, we refer to Law No. 1389 of
2 July 2012 on the funding of election campaigns, which should be
revised in the near future, following the tabling on 2 October 2014
of draft Law No. 924 amending the 2012 law.
Note
29. In addition, we should also note the adoption of Law No. 1364
of 16 November 2009 on the status of members of the judiciary. This
law led to the setting up of a Judicial Service Commission, chaired
by the Director of Judicial Services, and to progress in the training
and appraisal of members of the judiciary, including the seconded
members of the French judiciary, as well as the setting up of a
trade union for members of the judiciary in 2011.
30. Concerning the fight against money laundering, progress was
also noted during the reporting period with the passing of Law No.
1362 of 23 July 2009,
Note which reinforced the anti-money laundering
system and the resources allocated to the Financial Information
and Monitoring Department (SICCFIN). In addition, Sovereign Order
No. 3561,
Note amending
the 2002 legislation on combating the financing of terrorism, was
adopted on 9 December 2011. Monaco remains subject to the monitoring
of MONEYVAL, which assesses legislation and its implementation,
including the application of preventive measures by financial and
non-financial businesses and professions. The 2009 anti-money laundering
law also places an obligation on lawyers to report any suspicious
transactions to the Prosecutor General in certain cases. Ms Boisson,
SICCFIN Director, indicated in November 2014 that 500 to 600 suspicious
transaction reports were submitted to SICCFIN every year.
Note At the
end of the process, only a few cases had led to prosecutions: It
was explained to me that it was necessary to identify the predicate
offences – which often take place abroad –, deal with the difficulties
encountered with international letters rogatory and obtain the necessary
information abroad. At the same time, I was impressed by the speedy
reply given by Monaco (within two months on average) to international
letters rogatory.
3.6 Review of the issue
of the international conventions and treaties for which the National Council
must adopt a law on ratification
31. Article 14 of the Constitution provides for the ratification
of international treaties by the Prince. Prior consideration and
the adoption of a law on ratification by the National Council are
only required in some specific cases
Note of
treaties which:
i affect the organisation
of the Constitution;
ii entail the amendment of existing legal provisions;
iii entail participation by members of the National Council
in an international organisation;
iv result in budgetary expenditure of a new kind or for a
new purpose.
32. Since the entry into force of this constitutional provision
in 2002, only seven laws have been passed by the National Council
and promulgated in order to secure the ratification of international
legal instruments.
33. Pursuant to
Resolution
1690 (2009), I raised the issue of the involvement of the National
Council in the ratification of international instruments. When mentioning
this issue during my visits to Monaco, I found that there is a strong
consensus among all members of the National Council not to change
the Constitution in this respect. However, I also felt that it could
be beneficial for all stakeholders to find adequate ways, either
formal or informal, of increasing communication between the government
and the National Council when Monaco intends to ratify new international
instruments and, in certain cases, to draft reservations and declarations.
The ratification of international instruments is, essentially, a
positive process which enhances standards and gathers a broad consensus.
Such “interaction” would in no way interfere with the prerogatives
of the Prince who “represents the Principality in its relations
with foreign Powers” (Article 13 of the Constitution) and “signs and
ratifies treaties and international agreements” (Article 14 of the
Constitution).
34. While fully implementing the constitutional provisions requiring
the adoption of ratification laws by the National Council, as specified
in Article 14 of the Constitution, I have encouraged the Monegasque
authorities to find the appropriate mechanisms, possibly enshrined
in the National Council’s Rules of Procedure, to ensure regular
information and non-binding consultation of the National Council
when Monaco intends to ratify a convention or a treaty and to draft
reservations or a declaration relating to these instruments. This
could be done by an exchange of letters between the government and
the National Council, to establish the procedure and ensure regular
consultations of the National Council in this field.
35. This possibility was welcomed by the President of the National
Council and the head of the Monaco delegation, who considered it
necessary and useful to formalise the modus operandi of this constitutional process,
and by the Minister of State, Mr Roger, who said in a communication
addressed to the President of the National Council on 18 February
2015 that he was willing to consider, “in accordance with practice
at the opening of each ordinary session of the National Council
where draft laws are concerned, making a regular review at the meetings
between the External Relations Committee and the government of all
the conventions and treaties under discussion requiring, or not
requiring, the adoption of a law on ratification in pursuance of Article
14 of the Constitution. That would be an opportunity both to inform
the National Council and to answer any questions raised by the elected
representatives”. I therefore welcome the agreement concluded in February
2015, through an exchange of letters between the Minister of State
and the President of the National Council, which provides a modus
operandi involving regular updating of, and non-binding consultations
with, the National Council whenever Monaco intends to ratify a convention
or treaty. The practical details and frequency of these discussions
remained to be specified, and I was informed on 11 March 2015 by
the Minister of State that the procedure should soon be initiated.
This agreement represents undeniable progress, in line with the
expectations expressed by the Parliamentary Assembly in 2009.
4 Conclusions
and outlook
36. Since its accession to the Council of Europe in 2004,
Monaco has made progress in a number of areas. It is unquestionable
that membership of the Council of Europe has had a profound impact
on Monaco’s legislation and practices and stimulated the adoption
of higher standards and better democratic practices, in particular
in the areas of the fight against discrimination, the fight against
corruption and money laundering, and the promotion of human rights,
in particular women’s and children’s rights. With the recent ratification
of the
Istanbul and
Lanzarote Conventions on the 10th anniversary of Monaco’s accession
to the Council of Europe, Monaco has confirmed that the Principality
is firmly anchored within the Organisation, attached to its ideals
and a contributor to its activities.
37. Keeping in mind the specific characteristics of Monaco, which
need to be respected, and the objective difficulties that the Principality
has had to face to combine the honouring of its commitments to the
Council of Europe and the preservation of those specific legal characteristics,
vital to perpetuating the presence of Monegasque citizens on their
territory, I applaud the determination over the past few months
of the Monegasque authorities, both the government and the National
Council, in close co-operation with the Council of Europe, to identify
the legal solutions necessary to fulfil its remaining accession
commitments, 10 years after joining the Council of Europe. I welcome
the constructive dialogue and the progress made, despite limited administrative
and human resources given the size of the country. This may explain
an apparent slowness of the legislative process, and certain difficulties
encountered in rapidly implementing reforms affecting key fields such
as justice, democratic institutions and dialogue between the social
partners.
38. I am also convinced that Monaco has the capacity to adjust
to new democratic challenges and a changing globalised world, and,
while preserving the uniqueness of its regime, will continue to
reform its institutions. The “Special Committee in charge of the
amendment of electoral law and the law on the organisation and functioning
of the National Council” has now started work on modernising electoral
law: the National Council, on 9 October 2014, thus adopted Law No.
1409 on national and municipal elections,
Note and it also passed an amendment
of Article 47 of the 1968 law (on the validity of ballot papers)
on 26 November 2014.
Note There should in future be a general
discussion on the electoral system.
39. In future, it should also be able to align its legislation
and Constitution with the practices developed in the country, and
to make the necessary clarification (between legislation and orders,
for example). The question of the right to amend the budget, raised
by the members of the opposition, also deserves consideration. The
authorities could draw inspiration from the Council of Europe’s
expertise and member States’ practices. I welcome the fruitful co-operation
established with the Council of Europe. I am therefore confident
that Monaco will further upgrade its legislation and rules, as it
is subject to several monitoring mechanisms which are formulating
recommendations. The Council of Europe also remains ready to provide the
Monegasque authorities with expertise and legal assistance.
40. To conclude, I would like to stress, once again, the important
contribution of Monaco to the Council of Europe, and the significant
steps taken by Monaco since its accession to the Organisation in
2004 to upgrade its standards and align its practices with Council
of Europe norms. The Assembly acknowledges these efforts, while
the Principality of Monaco has to face many constrains in terms
of human resources, and administrative capacities, and has a essential
need to preserve the preferential treatment (in housing, employment
and social benefits) granted to Monaco citizens, which is seen as
vital to perpetuate the presence of Monegasques on their own territory.
41. The present report highlights that Monaco has made significant
progress and fulfilled, or is about to fulfil, four of its 2004
last accession commitments from 2004, namely:
- the ratification of the Convention on Cybercrime;
- the expeditious enactment of a new law on the functioning
and organisation of the National Council, to take account of the
constitutional amendments of 2002;
- the reform of the Code of Criminal Procedure and finalisation
of the reform of the Criminal Code;
- the review of the issue of the international conventions
and treaties for which the National Council must adopt a law on
ratification.
42. Concerning the ratification of Protocols Nos. 1 and 12 to
the European Convention on Human Rights and of the European Social
Charter (revised), we should note that, despite the fact that no
suitable legal solution could be found at the present stage to honour
these accession commitments, the Monegasque authorities remain open
to further exploring the legal possibilities, in particular for
the European Social Charter, that could pave the way to the ratification
of these instruments. I would like to reiterate my confidence in
the capacity of Monaco to address these remaining challenges, especially
through the setting up of a working group proposed by the authorities,
in co-operation with the Council of Europe.
43. While praising the achievements made by Monaco on most of
the 2004 accession commitments, the Assembly now expects Monaco
to make progress on the remaining commitments. Pending further progress
on these issues, I had first considered proposing to pursue the
post-monitoring dialogue with Monaco. However, given the position
expressed by several Monitoring Committee members on 17 March 2015,
and the renewed commitment of the authorities to pursue the work
on the pending issues, as indicated to me by the Minister of State,
I have proposed to the committee to amend my original proposal and
to suggest to end the post-monitoring dialogue with Monaco in the
light of the progress achieved since 2009 and the efforts made by Monaco
to honour its commitments. The Assembly should continue to follow
legislative and institutional developments, particularly through
the periodic reports drawn up by the Assembly’s Monitoring Committee,
in accordance with
Resolution
2018 (2014). The Assembly and the Council of Europe remain ready
to assist the Principality of Monaco with its future reforms
