A spouse may lose their share of a jointly owned asset; a business, the tools of its trade. When the owner is a third party to the criminal proceedings, what must they be able to challenge before the loss becomes final?
On 14 October 2026, Monaco signed the Additional Protocol to the Council of Europe’s Warsaw Convention on the recovery of criminal assets (CETS No. 232)1. The Principality was among the eight signatory States, alongside the European Union. As at 31 October, the Treaty Office had not yet recorded any ratification. The Protocol will enter into force on the first day of the month following the expiration of a period of three months after the date on which five signatories, including at least three member States of the Council of Europe, have expressed their consent to be bound. Monaco, a Party to the Warsaw Convention since 2019, meets the precondition for ratification2. The signature therefore does not, by itself, confer any new confiscation powers directly applicable in Monaco. It opens a period during which the Principality can clarify how the safeguards provided for in the text will operate for third parties.
To gauge what is at stake, one need only consider two property claims within the same family. A daughter seeks the return of the computer removed from her bedroom. Her mother claims her share of the household’s property. Both take their claims to the civil court. That court relies, as against them, on the findings of a criminal judgment given against the father and husband, in proceedings to which they were not parties. In Denisova and Moiseyeva v. Russia, the European Court of Human Rights found that neither of them had had an effective opportunity to challenge the confiscation3. The existence of civil proceedings had not enabled them to obtain a meaningful examination of their own rights.
For Monaco, the October signature thus brings two distinct decisions into view. Ratification of the 2026 Protocol would commit the Principality to implementing an asset-recovery regime accompanied by safeguards, including the necessity and proportionality of the measures. Ratification of Protocol No. 1 to the European Convention on Human Rights, which Monaco signed in 2004, would also open an avenue for individuals: once domestic remedies have been exhausted and subject to the other admissibility criteria, the owner could bring before the European Court a complaint directly concerning the proportionality of the interference with their possessions.
Article 5 § 1 of the 2026 Protocol covers the freezing, seizure and confiscation of the proceeds of the offence, or of property of equivalent value, owned or held by third parties. It expressly preserves the rights of bona fide third parties. Its paragraph 2 allows States to extend that obligation to the instrumentalities of the offence4. The distinction matters for the defence. Funds derived from a fraud, an asset targeted up to the value of those funds and a vehicle lawfully acquired and then used to transport them raise three different questions.
Take the case of a spouse who holds a bank account. If the prosecution considers that a particular transfer represents the proceeds of the offence, the effective response may be an invoice together with the corresponding bank statement. If the suspicion concerns who actually controls the account, it will instead be necessary to explain who gave the instructions and who benefited from the funds. If the measure targets property of equivalent value, the lawful origin of that property does not necessarily answer the decisive question: on what basis can its value be taken from that third party’s assets?
The precision of the grounds therefore determines whether a defence is possible. Informing a person of the amount frozen tells them what they stand to lose. For them to be able to challenge the measure effectively, they must also understand the reasoning that links that amount, their assets and the offence being prosecuted.
The Protocol distinguishes urgent measures from the final decision. Its Article 6 provides for provisional measures to prevent the dissipation of assets, including, where the conditions are met, without prior notice. Article 31 provides in particular for an effective remedy, respect for the rights of the defence and the summoning of persons affected by a confiscation. Article 32 governs the notification of decisions, of the reasons for them and of the available remedies. For certain provisional measures, notification may be postponed in order to protect investigations5.
This sequence matters as much as the existence of a remedy. An immediate freeze can prevent funds from disappearing. The decision that makes their loss final calls for a different kind of scrutiny. At that stage, the holder of the funds must be able to produce the document on which the outcome of the dispute depends, before an authority that retains the power to limit the measure or to order restitution. In the case of the mother and daughter, the civil court was indeed accessible. The difficulty lay in the effect given to the earlier criminal judgment: the two women had been unable to defend their rights at the original trial, and their subsequent efforts had not remedied that gap. The European Court assesses the owner’s opportunities to challenge the measure in the light of the proceedings as a whole. In the specific circumstances of Zaghini v. San Marino, the applicant had had, after the criminal trial, a reasonable opportunity to defend his claims6. Article 31 § 3 of the 2026 Protocol, for its part, lays down a specific procedural obligation: the persons affected must be summoned to the confiscation proceedings.
The Grand Chamber examined this interplay in G.I.E.M. S.r.l. and Others v. Italy. In § 302, it reiterates that the protection of property itself entails a procedural requirement: the person concerned must be able to contest the decisive elements effectively, in adversarial proceedings that comply with the principle of equality of arms. In § 303, it observes that the automatic nature of the Italian confiscation regime at issue, which concerned unlawful site development, prevented the courts from assessing which measure suited the circumstances. Moreover, the applicant companies had not been parties to the proceedings7. A defence is effective only if the court can act on what that defence establishes.
Article 24 of the Monegasque Constitution protects property8. Monegasque law already offers a more specific safeguard. Article 12 of the Criminal Code preserves the rights of the good-faith owner, including where property used to commit the offence is confiscated. Where a third party’s title is known, or the third party has claimed the status of owner during the proceedings, confiscation may not be ordered unless the third party has been given an opportunity to submit observations. A third party whose title was unknown or who did not claim it has recourse to third-party opposition (tierce opposition)9. The opportunity to submit observations and the obligation to summon laid down in Article 31 § 3 of the Protocol are not framed in the same terms; how they fit together will have to be examined at the time of ratification.
Article 6 of the European Convention, where applicable, provides the guarantees of a fair trial. It may be decisive for a third party denied access to a court or the opportunity to challenge an essential document. There remains the case of the owner who has been heard, has presented their evidence and has received a reasoned decision. Their whole objection may still come down to this question: what, in concrete terms, would the return of my property have jeopardised?
In B.K.M. Lojistik v. Slovenia, a driver had used his employer’s lorry to transport drugs. The lorry was the instrumentality of the offence. That classification distinguishes it from the proceeds and the property of equivalent value covered by the obligation in Article 5 § 1 of the new Protocol. Monegasque law, however, already allows instrumentalities to be confiscated. Predating the 2026 text, the judgment is therefore of direct comparative interest: it shows how the European Court reviews, under the right to the peaceful enjoyment of possessions, the justification for the loss imposed on the owner.
The lorry had not been adapted for smuggling. No previous incident called into question the precautions taken by the company. The driver had been sentenced to nine years’ imprisonment. In the light of these factors, the Court failed to see how returning the vehicle to the company would have facilitated further trafficking. The Government further argued that the company had bought the lorry back at auction. The Court observed that, even assuming this to be established, such a repurchase required the owner to pay to recover its own property. The seriousness of the offence explained the prosecution of the driver. It was not sufficient to justify, in the circumstances of the case, the permanent loss borne by the company10.
That review can lead to a different conclusion. In Silickienė v. Lithuania, the courts had examined the criminal origin of the funds used to acquire the property in issue, as well as the applicant’s knowledge of that origin. The Court found no violation11. The comparison helps to explain what ratification of Protocol No. 1 would bring. The mere fact that a third party holds an asset dictates neither its confiscation nor its return. The decision depends on what the courts establish about the asset, its owner and the burden the measure imposes on that owner.
In Michaux v. Monaco, an applicant considered that she had been deprived of inheritance rights to a flat. On 18 January 2024, the Court declared the property complaint inadmissible ratione personae, as the Principality had not ratified Protocol No. 112. The Court was not ruling on a confiscation. The lesson for the third-party owner is narrow but decisive: until that ratification takes place, they cannot rely directly on Article 1 of Protocol No. 1 against Monaco to have the financial burden of a confiscation reviewed. A separate complaint, concerning in particular the fairness of the proceedings, remains possible if it satisfies its own requirements.
The other provisions protect specific interests. Article 8 may be relevant where the measure affects a home or private life. Article 7 offers safeguards where a confiscation amounts to a penalty within the autonomous meaning of the Convention. Article 13 guarantees an effective remedy where there is an arguable complaint under an applicable Convention right. For a company whose vehicle has been confiscated and whose only serious objection concerns the excessive nature of that loss, these provisions do not invariably provide the property-rights review from which the company in B.K.M. Lojistik benefited.
Article 31 of the 2026 Protocol deserves, in this respect, to be given its full weight. For the States that become Parties to it, it requires that the exercise of these powers respect the principles of necessity and proportionality. What ratification of Protocol No. 1 would add lies at another level: the person concerned could ask the European Court, once domestic remedies have been exhausted and subject to the admissibility criteria, to examine directly whether the State has struck a fair balance between asset recovery and the peaceful enjoyment of their possessions.
In 2004, on joining the Council of Europe, Monaco undertook to ratify Protocol No. 1 within one year13. The monitoring documents explain the historical obstacle. The authorities were questioning the consequences that the combined application of the right to the peaceful enjoyment of possessions and Article 14 of the Convention would have for certain national-preference schemes, notably in housing and social assistance14. In 2015, the Parliamentary Assembly noted that none of the reservations then being explored had produced a solution regarded as satisfactory15. These documents explain the concerns expressed at the time. They do not, on their own, establish which of those concerns remain today. No new official deadline for ratification of Protocol No. 1 has been identified in the public sources consulted.
The signature of 14 October offers an opportunity to move both matters forward. As regards the asset-recovery Protocol, the Principality could check whether the opportunity to submit observations provided for in Article 12 of the Criminal Code satisfies the obligation to summon in Article 31 § 3, and specify at what point the third party will learn the basis of the measure and under what conditions the court will be able to narrow its scope. When depositing its instrument of ratification, Monaco will also be able to decide whether to limit, by means of the reservation provided for in Article 5 § 3, the scope of its treaty obligation to transfers or acquisitions, whether direct or indirect, in respect of which the third party knew or ought to have known that the purpose of the transaction was to avoid confiscation16. As regards Protocol No. 1, it could publish an updated account of the legal obstacles and of the solutions examined since 2015.
The person claiming their share of the family home or the return of the tools of their trade stands outside the debate on national preference. Yet they bear one of its consequences. Once the final Monegasque decision has been given, will they be able to ask a European judge why the fight against crime required them personally to bear the loss of that property? It is this question, a concrete one for every owner affected, that justifies putting ratification of Protocol No. 1 back on the agenda today.
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