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MONACO LAW REVIEW | DECEMBER 2025 |FROM THE EUROPEAN PERSPECTIVE
the fairness of civil proceedings brought in Monaco following
her dismissal. She complained that the domestic courts had
refused to order the disclosure of documents held by her
former employer and by third parties, which she considered
essential for the exercise of her rights, while also alleging that
the length of the proceedings had been excessive.
ANALYSIS :
The Court declared the application inadmissible on two
grounds. As regards the complaint concerning the length of
the proceedings, it noted that the applicant had not made
use of the domestic remedy for State liability for defective
functioning of the justice system provided for in Article 4 bis
of the Civil Code. In the Court’s view, by failing to do so, the
applicant had not exhausted domestic remedies, a prerequisite
for seizing the Court.
As to the refusal to order the disclosure of documents, the
Court held that the decisions of the Monegasque courts had
been neither arbitrary nor unreasonable. They had been
entitled to fi nd that the requests for disclosure were neither
suffi ciently specifi c nor relevant, that they risked affecting
the rights of third parties, and that they would undermine
the principle of fairness in the conduct of the proceedings
vis-à-vis the defendant. The applicant, who had benefi ted
from adversarial proceedings and had been able to submit
her observations, had not demonstrated the necessity of the
documents sought. The reasoning adopted, and upheld by the
Court of Revision, disclosed “no appearance of a violation of the
right to a fair hearing”. In the Court’s view, the domestic courts
had properly balanced procedural effi ciency, respect for the
rights of the defence and the protection of third parties, in
conformity with Article 6 § 1.
SIGNIFICANCE:
By declaring the application inadmissible, the European Court
underscores the subsidiary nature of the review carried out
under Article 6 and notes that Monegasque law now provides
an effective preventive domestic remedy, under Article 4 bis
of the Civil Code, which must be used before any international
complaint alleging excessive length of proceedings.
It also fi nds that the assessment made by the domestic courts
of the request for disclosure was based on relevant and
proportionate reasons, refl ecting a balanced approach between
procedural rigour and the guarantees inherent in the right to
a fair hearing.
SD
Freedom of Expression and the
Striking-Out of Statements in
Pleadings: A Measured Form of
Censorship
ECtHR, 11 May 2023, SARL Gator v. Monaco, No.
18287/18
BACKGROUND:
A Monegasque company challenged the Court of Appeal’s
decision to strike out a passage of its appellate submissions
considered defamatory towards the opposing party. The
impugned wording, contained within nine pages of argument,
suggested that the lessor company might have constituted an
“ideal instrument” for the fraudulent transfer of the business to
a purchaser subject to a prohibition on exercising commercial
activity. Relying on sections 21 (fi rst paragraph) and 34 (second
paragraph) of Law no. 1.299 of 15 July 2005 on freedom of
public expression, the Court ordered the judicial striking-out of
that passage (the practice known as bâtonnement), a measure
later upheld by the Court of Revision. The applicant company
alleged before the Strasbourg Court a disproportionate
interference with its freedom of expression under Article 10 of
the Convention.
ANALYSIS :
The European Court found that an interference with the
applicant company’s freedom of expression had occurred, as
part of its pleadings had been removed. However, it found the
interference to be prescribed by law, pursuing a legitimate aim
(the protection of the reputation of others) and proportionate.
The Court noted that bâtonnement does not amount to general
censorship but constitutes a mechanism for regulating judicial
speech. The domestic courts, within the limits of their margin
of appreciation, were entitled to consider that the four contested
lines exceeded what could be regarded as acceptable comment.
The striking-out of the defamatory statements did not affect the
substance of the pleadings nor the rights of the defence.
SIGNIFICANCE:
The judgment confi rms the compatibility of the Monegasque
mechanism of bâtonnement with Article 10 of the Convention,
provided that its use remains exceptional, proportionate
and duly reasoned. The Court reiterates that freedom of
expression for lawyers in the courtroom is not absolute: it may
be restricted where statements harm the reputation of others
without suffi cient factual basis. In validating the assessment
of the domestic courts, the Court recognises their margin of
appreciation in preserving the dignity of judicial proceedings
while ensuring the effectiveness of the rights of the defence.
The judgment thus refl ects the balance to be struck between
professional freedom of expression and ethical requirements.
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