This offence is punishable under Article 278-1 of the Monegasque Penal Code.
The characterisation of this offence is based on three elements:
- a state of vulnerability, a state of psychological or physical subjection or the minority of the abused person
- a material element : a seriously prejudicial act
- an intentional element : the perpetrator's intention to take advantage of the vulnerable person.
Before assessing the nature and seriousness of the prejudicial acts, the Monegasque courts consider it necessary to determine the state of vulnerability or subjection (Correctional Court, 3 November, 2020).
Article 278-1 of the penal code lists vulnerable persons. These may include minors, or individuals whose particular vulnerability is due to their age, illness, infirmity, physical or mental deficiency or pregnancy.
This state of vulnerability must be apparent or known to the perpetrator.
It may also result from a state of psychological or physical subjection arising from the exercise of serious or repeated pressure or techniques designed to impair the abused person’s judgement.
Secondly, the Criminal Court will examine the material element, i.e. the existence of an act or abstention on the part of the vulnerable person which is seriously prejudicial to him or her.
In practice, there is a wide range of acts that can be construed as an abuse of vulnerability.
The offence may take the form of:
- Remittances or gifts
- Drawing up wills or regularising donations
- Designation as a beneficiary of a trust
- Manipulation for personal gain
- Exploitation of the vulnerable person for unpaid work.
Indeed, while the Monegasque courts' repression of abuse of weakness aims to protect the vulnerable person's assets, it also covers the protection of the person's freedom of will over and above the sole infringement of his or her property (Tribunal correctionnel, 2 February 2021, Le Ministère Public c/ n. T. and others).
Finally, the Monegasque courts will verify the intentional element of the offence, i.e. the perpetrator's intention to abuse the vulnerable person.
The moral element of abuse of weakness is characterized by the perpetrator's intention to exploit the vulnerable person's state of ignorance or weakness, and to take conscious advantage of it.
This intention must be assessed at the time when the act seriously prejudicial to the victim is performed (Tribunal correctionnel, 28 February 2017).
The combination of these three elements enables the Criminal Court to pass sentence.
According to Article 278-1 of the Monegasque Penal Code, the perpetrator may face a prison sentence ranging from six months to three years and a fine of up to 375,000 euros. Penalties are increased if the abuse is committed by de jure or de facto leader of a group whose activities seek to maintain or exploit the state of psychological or physical subjugation of its members. In this case, the penalty can be up to five years' imprisonment and a fine of 750,000 euros.
Beyond the criminal sanction, this offence highlights the Monegasque authorities' determination to protect the most vulnerable members of society.
Such criminal action is distinct from civil proceedings, which can also be considered in cases of abuse of vulnerability, particularly in cases of mental disorder or insanity of the vulnerable person.
