Your bank accounts and assets in Monaco have been attached? It may be the consequence of a request for mutual assistance addressed to Monegasque authorities by a foreign judicial authority. In such a case, if you wish to initiate invalidity proceeding, you shall comply with new Law n° 1.536 dated 9 December 2022 related to mutual assistance in criminal matters.
This Law has been published in the Official Journal dated 16 December 2022 and modified the general framework for international cooperation and in particular provisions applicable to the proceedings that could be brought by the persons affected by the measures of mutual assistance.
The persons affected by the request for mutual assistance can initiate an invalidity proceeding that shall be filed before the Court of appeal within two months from the reception of the execution file by the general Prosecutor, under penalty of foreclosure. This file includes the list of measures required by the requesting authority and the documents related to the execution of these measures.
This proceeding was already time barred within a two-month period, but the provision's main new feature is that the General Prosecutor provides the Lawyer of the person affected by the measures of mutual assistance with the above-mentioned documents only if the concerned person already initiated a proceeding.
That means that the proceeding shall be initiated before or in order to be provided with the said documents. This provision is motivated by considerations of confidentiality of the mutual assistance. However, lawyers are subject to confidentiality restrictions and the mutual assistance is covered by legal confidentiality.
The strategy would be to initiate an invalidity proceeding to be allowed to be provided with the documents related to the mutual assistance and then appreciate the opportunity to pursue this proceeding or not.
The purpose of such proceeding would be to request the invalidity of a part or the entire mutual assistance procedure. The request for the release of assets' attachments could be asked only as a consequence of the attachment's invalidity and could not be asked as an independent request without any invalidity request. Any other attachment's release request shall be filed with the jurisdiction of the requesting State.
The grounds of the request for mutual assistance could not be challenged in the invalidity proceeding and shall be challenged by an action before the requesting authorities.
The Court of appeal must rule within four months from the filing of the application. This proceeding does not produce a stay of the proceeding, meaning that the file of mutual assistance will be returned to the requesting authority while the invalidity proceeding is still on-going.
If the invalidity proceeding is successful, the Direction of Legal services (corresponding to the Ministry of Justice in Monaco) will inform the requesting authority and request the return of the mutual assistance's original documents.
These provisions will apply to any request for mutual assistance received by Monegasque authorities after 17 December 2022 and to requests for mutual assistance received by Monegasque authorities before 17 December 2022 in which the file of mutual assistance has been returned to the General Prosecutor after 17 December 2022.
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.
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