Reservations and Declarations for Treaty No.005 - Convention for the Protection of Human Rights and Fundamental Freedoms

Nature of declaration : Reservations
Status as of 26/07/2017

Monaco

Reservation contained in the instrument of ratification deposited on 30 November 2005 - Or. Fr.

The Principality of Monaco declares that the provisions of Articles 6, paragraph 1, and 13 of the Convention apply without prejudice to the provisions, on the one hand, of Article 3, sub-paragraph 2, of the Constitution of the Principality according to which the Prince may in no instance be subjected to legal proceedings, His person being sacred and, on the other hand, of Article 15 of the Constitution relating to the royal prerogatives of the Sovereign, concerning more precisely the right of naturalisation and of re-instatement of nationality.

The provisions of Article 10 of the Convention apply without prejudice to the provisions, on the one hand of Article 22 of the Constitution establishing the principle of the right to respect for private and family life, especially concerning the person of the Prince whose inviolability is guaranteed in Article 3, sub-paragraph 2, of the Constitution and, on the other hand, of Articles 58 to 60 of the Criminal Code concerning the offence against the person of the Prince and His family.

Commentary

Article 3, sub-paragraph 2, of the Constitution establishes :"The person of the Prince is inviolable". Article 15 of the Constitution establishes: "Following the consultation of the Crown Council, the Prince exercises the prerogative of mercy and of amnesty, as well as the prerogative of naturalisation and of re-instatement of nationality".

Article 22 of the Constitution establishes: "Everyone has the right to respect for his private and family life (…)". Article 58 of the Criminal Code establishes: "The offence towards the person of the Prince, if committed in public, is sanctioned with imprisonment from six months to five years, and the fine provided for in numeral 4 of Article 26. In the opposite case, it is sanctioned with imprisonment from six months to three years and the fine provided for in numeral 3 of Article 26." Article 59 of the Criminal Code establishes: "The offence towards the Prince's family members, if committed in public, is sanctioned with imprisonment from six months to three years, and the fine provided for in numeral 3 of Article 26. In the opposite case, it is sanctioned with imprisonment from three months to one year and the fine provided for in numeral 2 of Article 26. Article 60 of the Criminal Code establishes: "Any writing aiming to publicly undermine the Prince or his family, and done with the intention to harm, is sanctioned with the fine provided for in numeral 4 of Article 26".

Period covered: 30/11/2005 -
Articles concerned : 13, 6

Reservation contained in the instrument of ratification deposited on 30 November 2005 - Or. Fr.

The Principality of Monaco declares that the provisions of Articles 6, paragraph 1, 8 and 14 of the Convention apply without prejudice to the provisions, on the one hand of Article 25, sub-paragraph 2, of the Constitution on the priority of employment for Monegasques and, on the other hand, of Articles 5 to 8 of the Law No. 1144 of 26 July 1991 and of Articles 1, 4 and 5 of the Law No. 629 of 17 July 1957, relating to the prerequisite authorisations for the exercise of a professional activity, as well as of Articles 6, sub-paragraph 1, and 7, sub-paragraph 2, of the same law concerning the order of dismissal and re-employment."

Commentary

Article 25, sub-paragraph 2, of the Constitution establishes :"Priority is secured to Monegasques for the accession to public and private employment, within the conditions provided for by the law or the international conventions". The conditions which secure the prioriy of employment to Monegasques are specified in the statutes of the public office and in various texts instituting a preferential treatment within certain sectors of activity : Ord. of 1 April 1921 (doctors); Law No. 249 of 24 July 1938 (dental surgeons); Law No. 1047 of 8 July 1982 (lawyers); Law No. 1231 of 12 July 2000 (chartered accountants); Ord.-Law No. 341 of 24 March 1942 (architects); Sovereign Ord. No. 15.953 of 16 September 2003 (shipping brokers); they may also follow from the power of nomination of the Prince: Ord. of 4 March 1886 (notaries). The conditions concerning the priority for employment which are intended to facilitate the exercice, by Monegasques, of a first independent activity are foreseen by Article 3 of the Ministerial Decree No. 2004-261 of 19 May 2003 (assistance and loan for professional settlement).

Article 5 of the law No. 1144 of 26 July 1991 concerning the exercice of certain economic and legal activities establishes : "The exercice of the activities foreseen in Article 1 [crafts, commercial, industrial and professional activities carried out on an independent basis] by individual foreign nationals is subordinated to the obtention of an administrative authorisation (sub-paragraph 1). The opening or the running of an agency, a branch or administrative or representative office, a firm or a company whose seat is located abroad is also subordinated to an administrative authorisation (sub-paragraph 2). The authorisation, given by decision from the State Minister, determines restrictively, for the duration it fixes, the activities which may be exercised, the premises where they will be deployed and indicates, where necessary, the conditions of their exercise (sub-paragraph 3). The authorisation is personal and non-transferable (sub-paragraph 4). Any modification of the activities carried out or any change of the owner of the former autorisation or of the premises requires the issuance of a new authorisation under the conditions provided for by the two preceding sub-paragraphs (sub-paragraph 5)."[The refusal of authorisation shall not be motivated : Article 8, sub-paragraph 2, a contrario to the law No. 1144].

Article 6 of the law No. 1144 establishes : "Any individual foreign national, who is the tenant manager of a business is submitted to the provisions of the previous article, in addition to those resulting from the law on tenancy. The effects of the declaration made by the Monegasque lessor or that of the authorisation held by the foreign national lessor, are suspended during the life of the lease ".

Article 7 of the law No. 1144 establishes : "The partners referred to under numerals 1 and 2 of Article 4 [i. e. partners of a company established in the form of a public company whose purpose is the exercice of professional activities, as well as partners in a commercial partnership or in limited partnership whose purpose is the exercice of commercial, industrial or professional activities], when in possession of a foreign nationality, must obtain an administrative authorisation, issued following a decision from the State Minister".

Article 8 of the law No. 1144 establishes : "The provisions of this section apply also to individuals in possession of the Monegasque nationality, who intend to provide, subject to payment and in whichever form, banking, credit, advice or assistance services in the legal, tax, financial and stock exchange fields, as well as brokerage, portfolio management or property management services with a power of disposal; they apply also to the same persons who are partners in one of the companies referred to in Article 4 and whose purpose is the exercice of these same activities (sub-paragraph 1). The administrative decision must be motivated with reference to the professional competencies and to the financial and moral guaranties presented (sub-paragraph 2)".

Article 1 of the law No. 629 of 17 July 1957 aiming to settle the conditions of recruitment and dismissal in the Principality establishes : "No foreigner may hold a private job in Monaco without a work permit nor may he or she hold a job in a profession other than that indicated on this permit".

Article 4 of the law No. 629 establishes : "Any employer who intends to engage or re-engage a worker with a foreign nationality must obtain, prior to the later taking up his or her duty, a written authorisation from the directorate for labour and employment".

Article 5 of the law No. 629 establishes : "For candidates having the necessary ability to work, and in the absence of workers of Monegasque nationality, the authorisation foreseen in the previous article is given according to the following order of priority : 1. foreigners married to a Monegasque having kept her nationality and not legally separated, and foreigners born directly from a Monegasque; 2. foreigners resident in Monaco and having already carried out a professional activity there; 3. foreigners resident in the adjacent communes where they have been authorised to work".

Article 6, paragraph 1, of the law No. 629 establishes : "Dismissal for suppression of posts or reduction of staff may be carried out, for a given professional category, only in the following order : 1. foreigners resident outside Monaco and the adjacent communes; 2. foreigners resident in the adjacent communes; 3. foreigners resident in Monaco; 4. foreigners married to a Monegasque (…) and foreigners born directly from a Monegasque; 5. Monegasques (…)".

Article 7, sub-paragraph 2, of the law No. 629 establishes : "Re-engagements are done in the reverse order than the one for dismissals (…)".

Period covered: 30/11/2005 -
Articles concerned : 14, 6, 8

Reservation contained in the instrument of ratification deposited on 30 November 2005 - Or. Fr.

The Principality of Monaco declares that the provisions of Article 10 of the Convention apply without prejudice to the provisions of Article 1 of the law No. 1122 of 22 December 1988 concerning the distribution of radio and television broadcasts and to Sovereign Order No. 13.996 of 18 May 1999 approving the concession of public telecommunication services which entails the establishment of a monopoly in the field of broadcasting. This monopoly does not concern programs but only the technical modalities of broadcasting.

Commentary

Article 1 of the law No. 1122 of 22 December 1988 establishes : "The distribution, in each building, of radio-electrical waves to users of acoustical or visual broadcasting devices is ensured, under the conditions provided for by this law, by way of a public service installation which substitutes itself to private external receiving aerials".

The Sovereign Order No. 13.996 of 18 May 1999 establishes : "The concession of public broadcasting services signed on 11 May 1999 by Our Domain Administrator and Mr Jean Pastorelli, Deputy President of "Monaco télécom, SAM", a public limited company with a capital of 10.000.000 F, as well as the terms and conditions of the said concession and their appendices are hereby approved".

Period covered: 30/11/2005 -
Articles concerned : 10


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