Article 341 of the Penal Code states peremptorily that the secrecy of correspondence is inviolable.

In the following article, it defines violation of the secrecy of correspondence as the fact of becoming aware by any means whatsoever of the content of correspondence, but also of seeking to know or disclose the names of persons who send or receive it (article 342 of the Criminal Code). This offence is punishable by six months to three years' imprisonment and a fine of up to €18,000.

However, in a recent decision, the Criminal Court of Monaco ruled that although the offence of breach of the secrecy of correspondence had been committed, the defendant should be declared not criminally responsible for the offence committed since "the commission of this offence by the accused was necessary for the exercise and respect of her rights of defence in the context of judicial proceedings already initiated". The Court thus specified that "the exercise of the rights of the defence is a fact justifying the said offence (breach of the secrecy of correspondence) and therefore an obstacle to conviction".

In the present case, the facts were based on criminal proceedings initiated in Italy concerning the sale of a property owned jointly by two sisters, which had been carried out without a joint agreement and at a low price. The defendant, allegedly damaged by the sale, had been receiving her sister's mail at her home for years. She therefore read her sister's bank letters in order to search for a trace of the disputed real estate transaction and informed her lawyer of their contents, thus supporting the opening of the proceedings in Italy.

The facts were not disputed by the defendant and the Court, which considered the offence constituted, chose to declare the defendant not criminally responsible because of the existence of a justifying fact for the offence.

This is not the first decision of its kind. However, in its previous decision, the Criminal Court did not declare the person not criminally responsible but considered that, given the need for the person to violate the secrecy of correspondence in order to exercise his rights of defence, the offence could not be constituted and her acquittal had been pronounced.

Although the courts' vision seems to be evolving on the assessment of the consequences (thus moving closer to the French position), the cause of impunity remains the existence of a state of necessity, of an act justifying the commission of the offence, represented here by the exercise and respect of the rights of defence.

This state of necessity has been defined by Monegasque case law for many years as "the situation in which a person finds themself who, in order to safeguard an overriding material or moral interest, has no other resource than to perform an act prohibited by criminal law".

There are, however, three conditions for the justifying fact to be taken into account: the existence of a genuine necessity, the manifest superiority of the value of the safeguarded interest compared to that of the injured interest, and the absence of a personal fault on the part of the perpetrator at the origin of the situation which will be resolved by the commission of the offence. These conditions are assessed on a discretionary basis by the courts that have to deal with them, so it is difficult to anticipate when the state of necessity will be accepted and when it will be dismissed.

Moreover, even if the perpetrator of a breach of the secrecy of correspondence is found not criminally liable due to the existence of a justifying fact, the admissibility of documents obtained through the commission of that offence, as necessary as it may be considered, is not ensured before the civil courts.

According to the general principle of law based on the fairness of evidence, the production of a document which has its origin in an infringement of the law must be disregarded. Documents obtained in violation of the secrecy of correspondence may therefore be excluded from the proceedings by the civil courts, which will not take them into account in their deliberations. It is therefore important to find out in advance what evidence may be gathered and used for the purpose of initiating or defending legal proceedings, both civil and criminal, in order to avoid the inconvenience of being held liable and having one's defence weakened.

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.