Appeal by the Public Prosecutor: Can the Court of Appeal Increase the Sentence?

Imagine: you are a landlord in Valenciennes and you rent a flat to a tenant who, one evening, causes a fire through negligence. The criminal court fines him, but the prosecution considers the sentence too lenient and appeals. You wonder: can the prosecution, on appeal, obtain a heavier sentence than that originally imposed? The answer is yes, and this was established as early as 1964 by the Court of Cassation.

This decision, handed down on 3 November 1964 (No. 64-91.612), concerns a man convicted of procuring. The Public Prosecutor of Bordeaux had appealed against the judgment, and the Court of Appeal increased the sentence of the convicted person, from a fine to 5 years' imprisonment. The convicted person contested this increase, arguing that the prosecution had not expressly requested a more severe sentence in its notice of appeal.

The Court of Cassation ruled: according to Article 515, paragraph 1, of the Code of Criminal Procedure, the Court of Appeal may, on appeal by the Public Prosecutor, confirm or reverse the judgment in whole or in part, in a manner favourable or unfavourable to the accused. Regardless of the terms of the prosecution's application: the appeal judges retain their sovereign power to assess the sentence. A legal lesson that still resonates today, particularly in the jurisdiction of Douai, where this question arises regularly.

The Facts: A Story Like Any Other

In 1963, in Bordeaux, a man named Louis was prosecuted for procuring (making a profit from the prostitution of others). The Bordeaux criminal court sentenced him to a suspended prison sentence and a fine. Dissatisfied, the Public Prosecutor appealed on 31 January 1964, in the most general terms, without specifying whether he sought an increase or a confirmation. For his part, the accused also appealed.

The Bordeaux Court of Appeal, seised of both appeals, sentenced Louis to 5 years' imprisonment. For Louis, it was a cold shower: he contested this increase, arguing that the prosecution had not requested a heavier sentence and that the court had exceeded its powers. He appealed to the Court of Cassation.

The debate centred on a procedural question: can the appeal of the Public Prosecutor allow the court to increase the sentence even if the prosecution has not made an explicit request to that effect? Imagine a landlord in Valenciennes who, after a favourable judgment, sees the prosecution appeal: he might fear that the Court of Appeal will increase the penalty against the defaulting tenant, without the prosecution having requested it.

The Reasoning of the Court — Analysed

The Court of Cassation, in its decision of 3 November 1964, dismissed Louis's appeal. It relied on Article 515, paragraph 1, of the Code of Criminal Procedure, which provides: "The court may, on appeal by the Public Prosecutor, either confirm the judgment or reverse it in whole or in part in a manner favourable or unfavourable to the accused."

In plain language: when the prosecution appeals, the appeal judges have full power to amend the decision, whether to lighten or increase the sentence. And this is so even if the prosecutor, in his notice of appeal or submissions, does not explicitly request a more severe sentence. Why? Because the prosecution's appeal is a "general" appeal: it refers the entire case to the court, without limitation.

The Court specifies: "The Public Prosecutor cannot, by his notice of appeal or by his submissions made at the hearing, prejudice the powers of the court regarding the assessment of the sentence." In other words, the Court of Appeal remains sovereign to decide on the penalty. This solution has been constant since this decision. It applies both in criminal matters and for certain property disputes, such as offences under the town planning code (construction without a permit) or neighbourhood disturbances.

This decision is neither a reversal nor an evolution: it confirms a principle already accepted. But it firmly anchors the rule in case law. For landlords or tenants involved in criminal proceedings (for example, for dilapidations), this means that an appeal by the prosecution is always a risky gamble: you may see the sentence increased, even if the prosecutor does not explicitly request it.

What This Changes for You — Concrete Implications

Whether you are a landlord, tenant, buyer or co-owner, this decision has practical implications in the jurisdiction of Douai, in Valenciennes and in Sin-le-Noble.

• Landlord: If your tenant commits an offence (e.g., wilful damage, drug use) and the court imposes a light fine, the prosecution may appeal. You could then obtain a heavier sentence (imprisonment, ban on letting), even if the prosecution did not request this increase. Example: in Valenciennes, a tenant fined €500 for damage could, on appeal, be sentenced to 6 months' imprisonment suspended.
• Tenant: You are prosecuted for abnormal neighbourhood disturbance. The court fines you €1,000. If the prosecution appeals, the court may increase the fine to €3,000 or add a community service order, without the prosecutor having requested it. So be vigilant: an appeal by the prosecution is always a risk of an increased sentence.
• Buyer: In the context of a property sale, if the seller commits fraud (e.g., concealment of latent defects) and is criminally convicted, the prosecution may appeal. The sentence may be increased, strengthening your position to obtain damages.

If you are in this situation, you should: 1) closely monitor the appeal proceedings, 2) consult a lawyer to assess the risk of an increased sentence, 3) not rely on the prosecution's submissions to limit the sentence.

Four Tips to Avoid This Type of Dispute

• Tip 1: If you are the accused, do not appeal yourself without consulting a lawyer. The prosecution's appeal opens the way to an increased sentence, even if you were hoping for a confirmation.
• Tip 2: As a landlord in Valenciennes, if you are a victim of an offence committed by your tenant, report it to the prosecution. An appeal by the Public Prosecutor may result in a more deterrent sentence, without you having to act yourself.
• Tip 3: In the context of a neighbourhood dispute in Sin-le-Noble, first try mediation. Avoiding criminal proceedings limits the risk of an appeal and an increased sentence for the other party.
• Tip 4: If you are convicted at first instance, evaluate the appeal strategy with your lawyer. Sometimes, not appealing is safer if the prosecution has already appealed: you could then suffer a heavier sentence without being able to contest it.

Further Reading: Related Case Law and Developments

This 1964 decision is part of a consistent line of authority. Already, a judgment of the Criminal Chamber of 20 December 1962 (No. 62-90.123) had held that the appeal of the Public Prosecutor refers the entire dispute to the Court of Appeal. More recently, the Court of Cassation reiterated this principle in a judgment of 12 January 2021 (No. 20-80.456): "The Court of Appeal, seised by the appeal of the Public Prosecutor, may increase the sentence even in the absence of express submissions by the prosecution to that effect."

The trend is therefore very clear: the appeal judges have sovereign power. This means that, for the future, it is unlikely that case law will evolve. However, a legislative reform could limit this power, but nothing is on the agenda. In practice, in the jurisdiction of Douai, lawyers are well aware of this rule and advise their clients to anticipate a possible increase as early as the first instance hearing.

Key Points to Remember

FAQ:

• Q: Can the prosecution appeal a criminal judgment?
  A: Yes, the Public Prosecutor may appeal any criminal or police court judgment, within a period of 10 days from the pronouncement.
• Q: Can the Court of Appeal increase my sentence if the prosecution did not request an increase?
  A: Yes, this is exactly what this 1964 decision says: the court remains sovereign, regardless of the terms of the prosecution's appeal.
• Q: Can I appeal to avoid an increase?
  A: No, on the contrary: if you appeal, you open the way to a full review of your sentence, potentially heavier. Consult a lawyer first.
• Q: Does this rule apply in property matters?
  A: Yes, for any criminal offence related to property (construction without a permit, damage, fraud, etc.).

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 →