You are under investigation in Monaco or you have lodged a complaint ? Would you like to obtain access to the investigation file and/or make observations and request investigative acts from the General Prosecutor?
Law n° 1.533 of 9 December 2022 relating to the preliminary investigation and alternative measures to prosecution introduced the adversarial principle in the context of the preliminary investigation by allowing the victim/plaintiff, the accused or their counsel to obtain a copy of the investigation file and to make observations under certain conditions.
So far, neither the victim nor the accused had access to the preliminary investigation file and any person wishing to obtain a copy (except in case of referral before the criminal Court) had to wait for a ruling to close the case before requesting a copy from the General Prosecutor (article 1 of order n°8.043 of June 28, 1984 relating to the acts and formalities of the court clerck).
New article 81-12 of the criminal procedure code introduces a right of access to the file, in whole or in part, for the victim and the accused, on the initiative of the General Prosecutor which also entitles them to make any useful observations (paragraph 1).
The General Prosecutor's initiative to make all or part of the file available can occur « at any time during the preliminary investigation », which leaves them a wide discretion to act.
The fact that this possibility was introduced in the first paragraph of the article could be regarded as an incentive for the General Prosecutor to operate commonly this act.
Furthermore, paragraph 2 and following of article 81-12 now provide for the possibility for any defendant accused and for the victim, directly or through his or her counsel, to request consultation of the investigation file in order to make observations.
For the victim, this request can only be filed six months after the complaint was lodged. For the accused, this request can only be filed six months after an investigative act to which he/she was subjected (i.e police custody, unrestricted hearing, home visit, request for informatio, phone call with police, etc.).
The wording of the article suggests that the General Prosecutor can immediately comply with this request pursuant to paragraph 1 of article 81-12. In any case, there is no prohibition to do so.
If necessary, the applicant will be given a copy of all or just a part of the investigation file and could make observations only (i.e no requests for investigative acts).
The General Prosecutor can also decide not to comply right away with this request.
In any case, if a request of copy of the file was lodged, the General Prosecutor will be required at the end of the preliminary investigation to deliver it and to inform the applicant of the possibility of making observations and requesting investigative acts within a period of two months.
Pursuant to article 81-12, please note that the applicant should wait until the end of the preliminary investigation to file any request for acts that he or she may consider as useful for the determination of the truth and the defence of his or her interests.
This situation is logical and can be explained by the fact that both the accused and the victim are not constituted as parties in the investigation proceedings as they could be in the investigation conducted by an invesigating judge.
If no request for consultation was lodged, the General Prosecutor is all the same allowed « if they consider it appropriate » to deliver to the accused, the victim or their lawyers a copy of the file and inform them on the right to formulate observations and to request any investigative acts useful for the determination of the truth.
In any case, the applicants will only be able to request additional investigative acts at the very end of the investigation.
Article 81-12 does not specify the type of observations nor investigative acts that the applicant may request leaving him a wide range of proposals.
In practice, the observations will mainly focus on the regularity of the proceedings, the legal assessment of the facts, the possible failure of the investigation, the opportunity to proceed to any additional investigative acts necessary to determine the truth, or even the terms of the prosecution.
Obviously, the requests for investigative acts will vary according to the investigations carried out and the circumstances of the case (hearings, confrontations, visits, seizures, requests for information, etc.).
Unfortunately, article 81-12 does not provide any right of appeal against the ruling of the General Prosecutor on the requests for investigative acts.
Though, we assume this situation could be partly remedied by requesting an additionnal investigation before the Criminal Court (in case of referral) before the beginning of the debates on the grounds.
As a reminder, the provisions of article 81-12 of the criminal procedure code are applicable to preliminary investigations (« enquête préliminaire ») opened, as of March 1st and to ongoing investigations as of March 1st.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.