In response to several complaints, the High Commissioner issued a general recommendation concerning the reintegration of offenders on their release from prison. The vast majority of inmates detained at Monaco’s Remand Prison serve sentences of less than ten years. In view of this, we believe it is vital to treat their period of incarceration as a preparatory phase, in readiness for their re-entry into the community. To this end, and in accordance with the principles promoted by the Committee for the Prevention of Torture and the European Court of Human Rights, the High Commissioner’s recommendation is focused on cultural and sporting activities, as well as healthcare.
Social re-integration of released prisoners
Providing citizens with information regarding the specific law on a particular real property
In response to a matter lasting several months, regarding the question of which specific law governed a particular real property (Act No. 887 of 25 June 1970 or Act No. 888 of the same date), the High Commissioner issued a general recommendation about the length of time the government takes to provide information to citizens. The approach recommended would have avoided litigation before the Supreme Court. The High Commissioner suggests that, in addition to applying the provisions of Act No. 1,312 of 29 June 2006 on the grounds given for government decisions, information should be given to citizens in a transparent manner.
As a general rule and to prevent misunderstandings of this kind, the High Commissioner recommended that where there is a dispute as to how a property is classified under the law, the government should immediately provide the claimant with the facts on which it based its decision.
Reforming social unemployment benefit provisions to clarify the rules on ‘actual social and educational supervision’
The High Commissioner was asked to intervene regarding a request made by an individual for a review of the decision to suspend their social unemployment benefit payments, which the person concerned had been receiving for one year. Upon investigating these unusual circumstances, the High Commissioner noted that the social unemployment benefit scheme in its current form poses some difficulties in terms of its application, potentially leading to legal uncertainty. The High Commissioner therefore recommended that consideration be given to reforming the legislative provisions governing this benefit, in order to better clarify and regulate the concept of ‘actual social and educational supervision’, which is central to current legislation, and also what claimants are expected to do in return for receiving the benefit.
Access to the Fire & Emergency Service for women
The High Commissioner received a complaint from a young woman who had been denied the possibility of applying to join the Fire & Emergency Service on the grounds of her sex. In response to this complaint, the High Commissioner recommended an end to the discriminatory practice of allowing only men to join this Service, and called for the necessary steps to be taken immediately to ensure that women are admitted to roles at the fire station.
Ending the measure extending the health pass requirement to include certain workers essential for the continuity of public sectors
The High Commissioner received a complaint from two collectives, one consisting of private sector employees, and the other made up of civil servants and State officials, challenging the decision to extend the requirement to show a valid health pass to include certain employees of private companies and/or civil servants considered as “performing essential public services”, in order to access their place of work and carry out their job. While taking the view that it was legitimate for the Government, given developments in terms of the pandemic, to seek to strengthen ways of guaranteeing the continuity of essential public services, the High Commissioner recommended that this measure not be renewed in its current form, beyond the expiry date initially fixed and liable to be extended.
Respect for parental rights with regard to Covid-19 vaccination for teenagers
The High Commissioner received a complaint regarding the way in which parental consent is obtained for the vaccination of a minor against Covid-19, whereby the vaccination consent form is signed by only one of the parties with parental authority. In response to the complaint, the High Commissioner advised the Government that this practice was illegal, observing that it was adopted to facilitate the vaccination of younger people and copied directly from that followed by the French authorities, but that in France it was based on legal provisions that allow for exemption from the principle requiring parental authority to be exercised jointly. No such provisions have been introduced in Monaco.
Head of household: resolving the situation of reconstituted families (mother affiliated to CCSS / stepfather to SPME) with regard to social security
The High Commissioner was approached by reconstituted households, in which the partners were affiliated to two different social security bodies. Specifically, the wife was affiliated to the Caisse de Compensation des Services Sociaux (CCSS) and her new husband to the Service des Prestations Médicales de l’Etat (SPME). The child living in the household, from the mother’s first marriage, was no longer eligible for illness and family benefits owing to the adoption of Sovereign Ordinance No. 7,155 of 10 October 2018 on the granting of family expenses benefits to civil servants and officials employed by the State and the Municipality. This piece of legislation had, with effect from January 2019, altered the conditions to be met in order to be considered the head of household, notably by limiting this status to the father and mother of a child. The two sets of regulations (covering the SPME and CCSS respectively) have not been harmonised or developed in a coordinated fashion, with regard to the way in which claimants acquire the necessary status entitling them to benefits. In view of this, and pending an overall reform of Monaco’s social security regimes, the High Commissioner recommended that a solution be found for these households, to allow benefits to be paid for the children concerned in a fair manner. The High Commissioner also recommended that a principle of subsidiarity be reintroduced into Ordinance No. 1,447, stipulating an exemption from the condition that only the father and mother may be considered as the “head of household”, so that in certain specific circumstances, a new partner is able to qualify their stepchildren for entitlement to benefits.
Professional licence: its issue should not be conditional on having a clean driving licence
The High Commissioner received complaints from a number of taxi drivers who were denied a professional licence, on the specific grounds that points had been deducted from their driving licence and not yet reinstated (in Monaco, the driver's licence is based on a point system starting with 12 points, and points may be deducted for traffic offences). On examining Article 1(6) of Ministerial Decree No. 2008-451 of 8 August 2008 on the conditions for issuance and renewal of professional licences, it transpired that this practice was the result of an incorrect interpretation of this provision by the State agencies. The High Commissioner therefore recommended that, when determining whether the applicant’s driving habits are compatible with the activity of taxi driver, the nature of any traffic offences should be considered, and not whether the applicant currently has a clean driving licence with all points intact.
Extending the deadline for appealing against medical administrative decisions
After receiving a complaint from a former civil servant who sought to challenge the decision declaring him unfit to work, the High Commissioner highlighted the difficulty arising from the fact that there are two identical 15-day deadlines. One is the maximum period allowed in which to file an appeal against a decision on the basis of an opinion issued by a Medical Commission. The other is the period in which the Government is required to send a civil servant their medical file, at their request. The High Commissioner recommended that the relevant regulatory instruments be amended to extend the period permitted for appealing decisions on an employee’s fitness for work, and more generally any medical administrative decisions, in order to guarantee that the individuals concerned are able to obtain a copy of their medical file before bringing any claim.
Allowing prisoners under psychiatric treatment regular access to an outdoor space
The High Commissioner paid a visit to the secure room used to house prisoners at Centre Hospitalier Princesse Grace (CHPG). It was observed that whilst the room itself has entirely adequate material conditions, there was an issue with the ability of prisoners to access an outdoor space. While the CHPG’s management has clearly made efforts to meet the requirements of the CPT, while complying with the significant security restrictions imposed by the Police Department, it must nonetheless be noted that the resulting facility is unsatisfactory, since the dedicated area is in reality more like an extension of the room itself, than an outdoor space. The High Commissioner recommended that the various parties concerned come together once more to review the design of this space, or alternatively to look at other solutions that are more appropriate for the physical exercise of hospitalised prisoners.
Respect for the principle of personal independence in the treatment of prisoners on hunger strike
Based on a number of situations where prisoners have been placed in isolation, then transferred and immediately hospitalised in a secure psychiatric unit at the Centre Hospitalier Princesse Grace (CHPG) for a suicide risk assessment after announcing they were beginning a hunger strike, the High Commissioner deemed it useful to draw the attention of the prison authorities and medical department to the importance of respect for the principle of personal independence, which is protected by the ECHR on the grounds of the right to privacy, when dealing with prisoners on hunger strike.
For the family benefits service in the CAMTI social security regime, not treating parents who are in a couple but living apart in the same way as married or co-habiting couples
The High Commissioner was approached after Caisses Sociales de Monaco (CSM) refused to grant the son of a Monegasque resident affiliated to CAMTI (the social security fund for self-employed people) illness and family benefits, despite her son living with her. CSM had argued that the father of the child, with whom she was in a relationship as a couple but not married or co-habiting, was resident in France and was therefore entitled to claim benefits for their shared child in that country. After conducting an in-depth legal analysis of European and Monegasque law, the concept of households, and the child’s place of residence, the High Commissioner concluded that the circumstances of a couple who have chosen to live apart could not, for the purposes of determining their entitlements under the CAMTI regime, be treated in the same way as a married or co-habiting couple, since it supposes that the parties concerned live under the same roof. The High Commissioner recommended that the entitlement to benefits be based upon the child’s place of residence, with the parent responsible for their day to day care.
Introducing legal rules to govern formal cautions held on police records
On two occasions, the High Commissioner received complaints from individuals who, following a background character check carried out as part of a recruitment process, were given a formal caution by the Police Department. These cautions took the form of a reprimand accompanied by an order to behave irreproachably. The High Commissioner first of all noted that there was no legal instrument providing for this type of caution. It was also observed that these cautions artificially created a recent incident in police records, despite potentially relating to facts occurring long before. Should the individual concerned subsequently make an application requiring a background character check, the incident on record would be likely to influence the judgement made. The High Commissioner therefore recommended that a legal framework be established to govern the nature and effects of these formal cautions.
Introducing legal rules to govern police checks carried out when employing Monegasque nationals
A Monegasque national made a complaint on the grounds that he was prevented from securing a job after the Ministry of Interior issued a negative opinion on his hiring, owing to his criminal record. There is no legal requirement for Monegasque nationals to hold a work permit in order to take employment in the private sector. Similarly, an employer seeking to hire a Monegasque worker is not required to seek prior authorisation, but merely to submit a declaration when the employee takes up their duties. In principle, the Government cannot therefore prevent the individual concerned from taking a job. In practice, however, the administrative procedures applied to Monegasque and foreign nationals are the same, and include background character checks. There is clearly justification for such police checks, regardless of the worker’s nationality, if the individual concerned will be working in a sensitive role, such as with children or vulnerable persons. Nevertheless, police checks can under no circumstances be conducted without a proper legal basis, given that they constitute a significant intrusion into the individual’s privacy. The High Commissioner therefore recommended that legislation be passed as soon as possible to regulate this administrative practice, by ensuring that workers may only be required to seek authorisation to take employment, where the nature of the job concerned is such that preliminary police background checks are legitimate.
Use of transparent inclusive masks to take into account the specific needs of hearing-impaired persons in the context of the Covid-19 health crisis
Alerted to the communication difficulties encountered every day by people who are deaf or hearing-impaired as a result of the general requirement to wear a face mask in enclosed spaces that are open to the public, the High Commissioner contacted the Government to ask that the measures taken and the health guidelines issued to combat the spread of coronavirus be adapted, to give additional consideration to the specific needs of hearing-impaired people. This group includes a large number of elderly people.
Working on a self-employed basis as part of a partnership on State-owned property: invoicing a supplementary housing fee
Where a self-employed individual entitled to occupy State-owned property wishes to conduct business in partnership with another professional, they are charged a supplementary housing fee. Technically, the State Property Authority, acting in the context of a private contractual relationship, is within its rights to demand a supplementary rental fee in exchange for granting an exemption from the contract terms. However, this practice appears not to sufficiently reflect the specific situation of self-employed individuals, and in particular doctors and certain other healthcare professionals, who are permitted by law to practise in partnership with others, including with foreign professionals. The law also stipulates the various rules applicable to such arrangements. In light of this, the High Commissioner called upon the Government to consider no longer treating partnerships between self-employed professionals, especially in the medical and paramedical sector, in the same way as tenants who house a person or activity unconnected with that carried out on the premises, with a view to ending the practice of charging a supplementary fee in these situations. Failing that, the High Commissioner stressed the need to introduce more formal rules to govern these fees (presently based solely on usual internal practice), in order to make them more transparent and predictable for professionals.
Updating police practice regarding the issue of certificates for complaints and full copies of complaints
A number of referrals to the High Commissioner revealed thatindividuals who came to file complaints at the Police Department had left the police station with no official documents to provide proof of the complaint, even where the individuals concerned had expressly asked for a copy. For the sake of good administration and in order to make matters easier for the individuals concerned, the High Commissioner recommended that police practice be updated to allow the officer who logs a complaint to immediately and systematically issue a confirmatory receipt or certificate. This document should indicate the date of the complaint, the nature of the facts alleged, and the identity of the person or persons accused, along with the registration number assigned to the complaint in the Police Department’s files.
Legal regime governing special category prisoners
The High Commissioner observed that there was currently no legal framework governing the status of special category prisoners in Monaco, and that the rate of prisoners designated as “special category” was very high (20%, well above that observed in the neighbouring country). This was due to the fact that such status is attributed solely on the basis of the offences committed or of which the prisoner is accused. In view of this, the High Commissioner recommended that a general framework be established to govern this status.
Systematic full body searches of prisoners
The High Commissioner received several complaints about the particularly body search regime applied at the remand prison. The complaints concerned both the frequency of these searches, and the manner in which they were carried out. Upon investigation, the High Commissioner found that the searches carried out on the prisoners who made the complaints were in line with application regulations, and reflected no willingness to persecute a particular prisoner. However, the High Commissioner did find that the current practice of full body searches was not compliant with ECHR case law in this area, and concluded that the authorities needed to look at the issue as an urgent priority, in order to ensure that the practices followed respect the dignity and fundamental rights of prisoners, by ending the practice of systematic full body searches and by instead using targeted searches, along with random spot searches.
Professional activities at State-owned properties
It is established practice for the tenant of a State-owned property to be able to carry on a professional activity at that address, provided the activity requires no employees, no clients visit the property, and no goods are stored there. However, this required an express permit from the State Property Authority, which charged additional rent in the form of an “annual supplementary fee”. In June 2020, the National Council passed legislation abolishing these paid permits, thus providing a definitive solution to the issues posed by the State Property Authority’s practice, for which there was no governing framework and which had previously deprived tenants of contractual forward visibility. A new general principle is now applied, whereby a maximum of three such activities may be carried on at a State-owned property, free of charge and for an indefinite period of time.