Complaint without payment: when legal aid saves your action

Imagine: you own a flat in Plaisir, and your tenant has deliberately damaged the property. You file a complaint with a civil party application. The investigating judge imposes a deposit of 250 euros, which you cannot pay. Your complaint is declared inadmissible. What should you do?

This question is asked by hundreds of litigants every year. The deposit is a sum of money that the judge may require to guarantee payment of a possible civil fine. But for the less well-off, it can constitute an insurmountable obstacle to access to justice.

The Court of Cassation, in a judgment of 13 September 2022 (n° 22-80.893), reminds that obtaining legal aid, even during appeal, retrospectively dispenses with the payment of the deposit. A decision that gives hope to those who feared their action would be blocked by financial considerations.

The facts: a story that happens every day

Mr X, owner of a property in Poissy, was the victim of fraud by his tenant. He files a complaint with a civil party application before the dean of the investigating judges. The magistrate sets the deposit amount at 250 euros, to be paid within one month.

Impossible for Mr X: his income is modest, he lives on odd jobs. The deadline passes, the deposit is not paid. The judge issues an order noting the inadmissibility of the complaint, in accordance with Article 88 of the Code of Criminal Procedure. Mr X appeals.

In the meantime, he applied for legal aid. Nearly three months later, the legal aid office grants him full aid. But the investigating chamber of the Paris Court of Appeal, unaware of this decision, confirms the inadmissibility order. Mr X appeals to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation quashes the decision of the investigating chamber without referral. Its reasoning is simple: Article 88 of the Code of Criminal Procedure (which allows the judge to require a deposit) provides that a civil party who benefits from legal aid is exempt from this deposit. It does not matter when the application for aid was made.

In this case, Mr X obtained legal aid before the investigating chamber ruled on his appeal. Therefore, he was exempt from the deposit. The investigating chamber should have taken this into account, even if Mr X did not rely on it. Why? Because Article 57 of Decree n° 2020-1717 of 28 December 2020 requires the secretary of the legal aid office to inform the clerk of the court seised of the decision granting aid. This is an obligation, not a mere option.

The Court thus sanctions the failure to comply with this duty to inform. It reminds that the litigant cannot be criticised for not having reported the obtaining of legal aid, since the burden of information lies with the administration. This is a concrete application of the principle of procedural fairness and effective access to justice.

This decision does not create a reversal, but it clarifies and strengthens the protection afforded to the most deprived civil parties. It is part of a consistent line of case law from the Court of Cassation aimed at facilitating access to justice (see, for example, Crim., 10 March 2021, n° 20-82.456).

What this changes for you — concretely

For the landlord owner: if you are the victim of an offence (damage, unpaid rent by fraud), you can file a complaint with a civil party application. If the judge sets a deposit that you cannot pay, do not give up. Apply for legal aid as soon as possible. Even if the deposit deadline has passed, obtaining aid before the investigating chamber rules on your appeal exempts you from the deposit.

For the tenant: you have been the victim of a dishonest landlord (for example, unhealthy housing, illegal eviction). Same principle: do not let the deposit block you. Apply for legal aid without delay.

Concrete example: let us take a co-owner in Poissy, victim of an abuse of confidence by the management company. The judge sets a deposit of 500 euros. His income is 1,200 euros per month. He can obtain partial legal aid. If he requests it before the investigating chamber rules, the deposit is waived. Saving: 500 euros, almost half of his monthly income.

If you are in this situation, you must: 1) apply for legal aid as soon as possible; 2) inform your lawyer of this application; 3) do not wait for the outcome of the aid to appeal the inadmissibility order; 4) check that the registry has indeed been informed of the granting of aid.

Four tips to avoid this type of dispute

• Anticipate the deposit: as soon as you consider filing a complaint with a civil party application, assess your resources. If you are eligible for legal aid, submit the application at the same time as the complaint.
• Respect deadlines: the appeal against the inadmissibility order must be lodged within 10 days of its notification. Even if you do not yet have aid, appeal to preserve your rights.
• Ensure information flows: ask your lawyer to check with the registry that the decision granting aid has reached them. If in doubt, send a copy of the decision yourself.
• Consult a specialist lawyer: criminal procedures are complex. An experienced lawyer in property and criminal law will save you from fatal mistakes. In Plaisir or Poissy, Maître Zakine can assist you.

Further reading: related case law and developments

This decision echoes a judgment of the Criminal Chamber of 10 March 2021 (n° 20-82.456) which had already held that obtaining legal aid during proceedings regularises the situation, even if the deposit was not paid within the initial deadline. The Court of Cassation goes further here by imposing on the administration the duty to inform the court automatically.

However, a divergence existed with some courts of appeal which required the civil party to rely on the aid obtained themselves. The Court of Cassation puts an end to this requirement, strengthening protection. The trend is therefore clearly favourable to less affluent litigants.

In the future, this case law could lead to a simplification of procedures: the investigating judge could, before setting a deposit, check ex officio whether the civil party is eligible for legal aid. This would avoid unnecessary back-and-forth.

Summary and next steps

FAQ

1. What is the deposit? It is a sum of money that the judge may require from the civil party to guarantee payment of a possible civil fine. Its amount is freely set by the judge.

2. What should I do if I cannot pay the deposit? Apply for legal aid. If it is granted, you are exempt from the deposit, even if the deadline has passed.

3. Must I appeal the inadmissibility order? Yes, within 10 days of its notification. Even if you do not yet have aid, the appeal preserves your rights. Aid obtained afterwards will regularise the situation.

4. Who must inform the court of the granting of aid? The secretary of the legal aid office has an obligation to inform the registry. But for greater safety, your lawyer can also do so.

5. How much does a consultation with Maître Zakine cost? €45 for a first 30-minute consultation, which can save you months of proceedings.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →