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International and European law

11/ Jul

Legal news

Criminal law — International and European law

Human Trafficking: Monaco adjusts its criminal law, transcribes victims' right to information and training for professionals (Sovereign Order 9.966 of 30 June 2023)

Sovereign Order no. 9.966 of 30 June 2023 (JDM n° 8650 of 7 July 2023) amended Sovereign Order no. 605 of 1 August 2006 implementing the United Nations Convention against Transnational Organised Crime, its supplementary Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol) and its supplementary Protocol against the Smuggling of Migrants by Land, Sea and Air, adopted in New York on 15 November 2000, as amended.

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With regard to trafficking in persons (in particular for the purposes of forced labour or services, servitude or removal of organs, slavery or similar practices, prostitution of others or other forms of sexual exploitation), in addition to the aforementioned United Nations Palermo Protocol (in force in Monaco since 3 November 2003), the Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005 (in force in Monaco since 1 March 2016) and article 4 of the European Convention on Human Rights, which prohibits slavery or servitude, forced or compulsory labour, also apply in Monaco.

In practice, Sovereign Order no. 605 of 1 August 2006, as amended, which made trafficking a criminal offence, contributes to the implementation of all the Principality's international commitments in this area, both within the framework of the UN and the Council of Europe.

States Parties must adopt a global approach. They have a positive obligation to put in place an appropriate legal framework (legislative and administrative) to prohibit and punish trafficking, measures for prevention, protection and promotion of the rights of victims (identification by qualified persons, assistance in their physical, psychological and social recovery taking into account their vulnerability in particular minors). They also have a procedural obligation to investigate when there are credible grounds for suspecting that guaranteed rights have been violated.

The amendments to Sovereign Order no. 605 transcribe the recommendations of the Council of Europe's Group of Experts on Action against Trafficking in Human Beings (GRETA) (Report on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, 1st/2nd evaluation round, GRETA(2020)02, adopted on 22 November 2019, published on 12 February 2020).

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On the one hand, the amendments to Sovereign Order no. 605 on trafficking in human beings comply with the global approach adopted by the Palermo Protocol, the Anti-Trafficking Convention and the case law of the European Court of Human Rights (ECHR) relating to Article 4 of the European Convention on Human Rights:

> The offence of trafficking is no longer restricted to transnational situations involving an organised criminal group (repeal of Article 1(2)).

> Introduction of aggravating circumstances directly applicable to the offence of trafficking (Article 9, new paragraphs 2 and 3):

  • a) the offence endangered the life of the victim deliberately or by gross negligence ;
  • b) the offence was committed against a minor ;
  • c) the offence was committed by a public official in the performance of his or her duties; or
  • d) the offence was committed as part of a criminal organisation.

> Express recognition of the right of victims of trafficking to receive full information (orally and in the form of documentation, the content of which will be approved by ministerial decree) and to be counselled in the light of their personal situation (in the case of people with disabilities, in an adapted form) (new Art. 9-1) :

  • right to obtain compensation for harm suffered ;
  • right to bring a civil action if the prosecution is initiated by the public prosecutor or by summoning the perpetrator directly before the competent court or by lodging a complaint with the investigating judge;
  • right to be assisted by professionals from government departments specifically dedicated to this task or by an approved victim support association.

> Inclusion of the provision of regular training for professionals (magistrates, health professionals, criminal investigation police officers, childcare professionals, service providers and social workers) called upon to be in contact with victims of trafficking, and adapted where appropriate to minors in accordance with the best interests of the child (new Article 9-2).

In practice, following GRETA's recommendations, training has been given to the professionals concerned as part of the coordination of the French national system for the reception and protection of victims of trafficking (Ac. Sé), resulting from a European project coordinated with the International Organisation for Migration (Report submitted by the authorities of Monaco to comply with the Recommendation of the Committee of the Parties CP/Rec(2020)02 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, 1st/2nd evaluation round, CP(2022)02, received on 10 June 2022).

On the other hand, Articles 1 to 6 of Sovereign Order 605 implementing the United Nations Convention against Organised Crime have been repealed:

  • Scope (serious offences of a transnational nature involving an organised criminal group) (Article 1) ;
  • Definition of an offence of a transnational nature (Article 2) ;
  • Definition of an organised criminal group (Article 3) ;
  • Offence of participation in organised criminal activity (Article 4);
  • Offence of money laundering in direct or indirect connection with a serious transnational offence involving an organised criminal group (art. 5);
  • Offences of passive and active corruption (art. 6);

The United Nations Convention requires States Parties to define and punish these offences in domestic law. This is already the case under the Monegasque Criminal Code, which provides for aggravating circumstances when committed by an organised group, and expressly refers to the Convention and the Palermo Protocol where appropriate (in particular, corruption: Art. 113 to 122-1 of the Criminal Code; money laundering: Art. 216 to 218-5 of the Criminal Code).

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