Page 54 - MONACO LAW REVIEW 2025-2

to Monaco from 2016 to 2019 under the Franco-Monegasque
Convention of 8 November 2005. The Monegasque authorities
ultimately decided not to renew the secondment, which the
applicant challenged on the ground that such a decision
infringed his independence and his right to a fair hearing.
ANALYSIS :
The Court declared the application inadmissible on the
basis that Article 6 § 1 was not applicable. It reiterated that
this provision applies only where a “right” capable of being
defended exists under domestic law. Neither the French
decree ordering the secondment nor the relevant Sovereign
Ordinance in Monaco conferred a subjective right to its
renewal. The 2005 bilateral Convention provided for a three-
year secondment, renewable once, but without any automatic
entitlement to renewal.
Although the impugned decision had consequences for the
applicant’s situation, it did not concern a right recognised by
Monegasque law or by the bilateral Convention. Moreover,
the Court observed that the applicant had completed his
assignment in full, without any obstruction, premature
termination or disciplinary measure, and that he had brought
a sensitive investigation to its conclusion. There was therefore
no tangible indication that the decision not to renew the
secondment was aimed at hindering his independence or
impairing the exercise of his judicial functions.
SIGNIFICANCE:
The decision reinforces the distinction between a legitimate
expectation and a protected right, particularly in matters of
appointment and renewal to public functions. It confi rms that
a favourable prior opinion or a customary practice of renewal
cannot, absent an express provision, create an enforceable
right where the applicable text – here, the 2005 Convention –
contains no such entitlement.
The new amendment to the Franco-Monegasque Convention,
adopted in 2023 by an exchange of letters (Decree no. 2023-
792), now provides for a single non-renewable fi ve-year term.
As a result, the current legal framework effectively precludes
future disputes of this nature. The legal certainty and clarity of
the status of seconded judges are thereby strengthened.
SD
Lawyer’s Phone Voluntarily
Surrendered: The Boundaries of Legal
Professional Privilege
ECtHR, 06 June 2024, Bersheda and Rybolovlev v.
Monaco, No. 36559/19 and No. 36570/19
BACKGROUND:
A criminal investigation opened in Monaco in 2015, conducted
by a French investigative judge, concerned alleged violations
of privacy.
52
A lawyer voluntarily handed over her mobile phone to
the judicial authorities to demonstrate the authenticity of a
recording. However, the data on the device, including data
she had previously deleted, was subjected to extensive judicial
exploitation far exceeding the initial purpose of the handover.
The lawyer lodged an application before the Strasbourg Court
alleging a violation of her right to respect for her private
life and of legal professional privilege under Article 8 of the
Convention. A second application, brought by her client, was
declared inadmissible as he was not directly affected by the
data in question.
ANALYSIS :
The Court found a violation of Article 8 on the ground that the
Monegasque authorities had failed to put in place adequate
safeguards to preserve the confi dentiality of a lawyer’s
professional communications. In particular, no fi ltering
mechanisms had been implemented, nor any involvement
of the President of the Bar, nor any limitation of the expert’s
mandate to the disputed recording alone. The extraction
of thousands of messages from the device, including
those previously deleted, amounted to a disproportionate
interference with the applicant’s private life. The Court further
emphasised that legal professional privilege forms part of
the proper administration of justice and that any interference
must be prescribed by law, pursue a legitimate aim and be
proportionate. These conditions were not met in the present
case.
SIGNIFICANCE:
The judgment calls for careful scrutiny of the procedural
framework governing digital forensic measures when they
concern lawyers. While courts may use technical means
to establish the truth, the need to reconcile investigative
effectiveness with the protection of legal professional
privilege—an essential component of the defence function—is
underscored. More broadly, the decision highlights the need
for normative refl ection on the regulation of digital forensic
examinations in criminal proceedings, taking into account the
specifi cities of certain regulated professions.
SD
Disclosure of Documents: Between
Specificity Requirements and Fairness
of Proceedings
ECtHR, 05 October 2023, Perez v. Monaco, No.
60104/21
BACKGROUND:
A foreign national (bearing in mind that the Convention system
draws no distinction based on the applicant’s nationality,
whether from a member State or not), formerly the chair and
managing director of a Monegasque company, challenged