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Supreme Court of Monaco, 25 October 2013: A temporary paralysis of powers of investigation of the CCIN

Supreme Court of Monaco, 25 October 2013: A temporary paralysis of powers of investigation of the CCIN

By a Supreme Court decision dated 25 October 2013, the Supreme Court judged unconstitutional article 18 of the Monegasque law n° 1.165, which grants to the CCIN, powers of investigation in professional premises of the Monegasques companies, considering that the guarantees provided by the aforementioned article were not sufficient. Article 18 of law n° 1.165 provides that the CCIN is able to verify and investigate the implementation of the personal data processing as follows: – The investigations can take place between 6.00 am and 9.00 pm ; – The investigations can take place in the presence of the occupier, the person in charge of the data processing or its representative, or, a police officer. Under its decision, the Supreme Court judged that the powers of investigation of the CCIN were infringing in a disproportionate manner the “domicile” of the companies, in violation of article 21 of the Constitution of the Principality which provides that “the domicile is inviolable”. The Monegasque law has multiple similar dispositions with the French law regarding Data processing, Data files and individuals liberties numbered 78-17 and dated 6 January 1978. However, its article 18 judged unconstitutional, is surprisingly different to article 44 of the aforementioned French law. Indeed, article 44 of the French law provides a strict control of the investigations of the CNIL (equivalent of the CCIN in France): – The Prosecutor territorially competent is previously informed of the investigations; – The person in charge of the professional and private offices is informed about his/her rights to object to the investigations; – When the companies use this right, the investigations can take place only if the CNIL has obtained previously an authorization from the liberties and detention judge, except in an emergency situation or gravity situation (in such case, the authorization from the liberties and detention judge is previously required). – The investigations take place in the presence and the control of the liberties and detention judge who has authorized it, together with the presence of the occupier or his/her representative who can be assisted by a counsel of his/her choice. – At any time, it is possible to suspend or stop the investigations before a judge. The Supreme Court decision of 25 October 2013 will aim to conduct the legislator to amend article 18 of the Monegasque law n° 1.165. At the moment, the additional Protocol of the Convention 108 of the European Council dated 8 November 2001, which was made enforceable in Monaco pursuant to a Court Order n° 2.119 and dated 23 March 2009, is compelling the European states members to give to their respective national authority in charge of the data protection “powers of investigation and intervention”. The amendment of article 18 of the amended Monegasque law numbered 1.165, shall be drafted and voted as soon as possible. If not, the process for getting the label “adequate protection” from the European Commission of the European Union (aiming to increase the communications of international data to Monaco), will be jeopardized. In the meantime, the CCIN has published on its website that it will “continue to receive and deal with the data subject’s claims, who consider themselves as victim of a infringement of their fundamental freedoms and rights protected the Title III of the Constitution “ and that “the misconduct representing a criminal offence established by the CCIN will be now directly addressed to the Prosecutor General for any potential actions to be taken”. Nassim TERKI

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