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ruled on remittal and convicted the defendant.
The latter lodged a further appeal in revision, alleging that
his right, under Article 2 § 1 of Protocol No. 7 to the European
Convention on Human Rights, to have his conviction
reviewed by a higher tribunal had been infringed, and
contesting the classifi cation of the President of the Supreme
Court of Monaco as a magistrat within the meaning of Law No.
1.364 of 16 November 2009 on the status of the magistrature.
The Court fi rst rejected this ground of appeal, recalling
that, when ratifying the Protocol in 2005, the Principality
had specifi ed that the higher tribunal referred to in Article
2 comprises both the Court of Revision and the Supreme
Court. Once the case has been re-examined by a differently
composed formation of the Court of Revision, there have
therefore been two levels of examination, in conformity with
the requirements of the Protocol.
It then rejected the ground challenging the classifi cation of
the President of the Supreme Court as a magistrat, recalling
its earlier case law to the effect that anyone holding judicial
functions within the Principality, regardless of nationality (in
this case, French), must be regarded as a magistrat.
ANALYSIS:
On the procedural level, the Court of Revision confi rms that
a litigant retains an effective right of appeal even where,
following remittal after quashing, the highest court itself
adjudicates the case anew, provided that it does so in a different
composition. The Monegasque system is thus consistent with
European requirements.
On the criminal level, in matters of outrage à magistrat, the
Court affi rms a functional rather than statutory conception
of the magistrat: anyone exercising judicial functions, even
outside the career judiciary, must be regarded as a magistrat.
SIGNIFICANCE:
The judgment establishes that the Court of Revision, although
the highest court in the judicial order, may hear a case again on
remittal, in a different composition, thereby providing a second
level of review without infringing a formalistic understanding of
the right to two levels of jurisdiction. The solution is pragmatic
and balances institutional unity with procedural plurality.
It also revisits the defi nition of the magistrat and confi rms a
functional and organic approach to the notion: the President of the
Supreme Court, although not a member of the career judiciary,
is nonetheless a magistrat in the criminal-law sense as soon as he
exercises judicial functions within the State.
In doing so, the decision strengthens both the right to a second level
of jurisdiction and the protection of the judicial body, adopting a
balanced reading between institutional tradition and contemporary
European standards.
YS
40
Balancing Enforcement and Rights:
Vacancy of Dwellings in the Rent-
Controlled Housing Sector of Private
Tenure (“secteur protégé”) and
Administrative Penalties for Failure to
Declare
Supreme Court, 27 June 2025
Case TS 2024-14
BACKGROUND:
In litigation arising from the application of Law No. 1.507 of
5 July 2021, which strengthened the obligations imposed on
owners of dwellings located in Monaco’s Rent-Controlled
Housing Sector of Private Tenure, the applicants challenged
an administrative fi ne of EUR 20,000 imposed on them for
failing to declare the vacancy of two such dwellings.
They argued, principally, that the decision imposing the
penalty was insuffi ciently reasoned under the Law of 29 June
2006 on the statement of reasons for administrative acts, that
the authorities had erred in law as to the scope of the 2021
statute, and that the amount imposed was disproportionate.
The Supreme Court dismissed all grounds of challenge,
holding that the reasoning was adequate, that Article 4 of the
Law applies to all dwellings that were vacant on 1 January
2022 irrespective of the date on which they became vacant,
and that the penalty imposed was not disproportionate.
ANALYSIS:
The key contribution of the judgment lies in its defi nition of
the role of the judge in judicial review proceedings concerning
administrative monetary penalties, an area of growing
importance. In a central passage (para. 11), the Supreme Court
explains that it exercises a full, and not merely limited, review
of the internal legality of such penalties, that is to say a review of
the factual basis (proof of the breach), the legal characterisation
of the facts (to verify that the violation is indeed established
under the statute) and proportionality (the adequacy of the
penalty to the breach). The Supreme Court thereby affi rms
a strengthened offi ce for the judge in judicial review, going
beyond the mere search for manifest error.
The judgment also contains other points of note. Procedurally,
it confi rms an established line of case law to the effect that the
requirement to state reasons for an administrative penalty
is satisfi ed where the decision sets out the factual and legal
elements justifying the measure, without any need to respond
point by point to the offender’s arguments. Substantively, it
adopts a unifi ed construction of the 2021 Law: the one-year
period for declaring vacancy (Article 4) covers all dwellings
that were vacant on 1 January 2022, including those vacated
long before that date.
The legislative aim of combating the withholding of vacant
dwellings takes precedence over the chronology of individual
situations. In so doing, the judgment confi rms the purpose
pursued by the legislator, namely to promote the return of
older housing stock to the rental market.