Reference decision: cc • No. 13-82.758 • 2014-09-16 • View decision →
Imagine: you own a flat in Biscarrosse, implicated in a case of construction without a permit. Your lawyer, whom you have not yet officially appointed, appeals an order of the investigating judge. But the court of appeal declares his appeal inadmissible, on the ground that you had not, before the appeal, informed the judge that you were choosing this lawyer. Result: the unfavourable decision becomes final. How can a mere formality destroy your chances of defence? This is precisely what the Court of Cassation ruled in a judgment of 16 September 2014 (no. 13-82.758).
This decision may seem technical, but it directly concerns any person involved in criminal proceedings at the investigation stage. Whether you are an owner, tenant or property professional, if you are implicated or if you are a civil party, you must know that simply contacting a lawyer is not enough: you must formalise your choice with the investigating judge before he acts on your behalf.
In this article, I will explain concretely what this case law says, why it was handed down, and above all how you can avoid finding yourself in such a dead end. As a lawyer specialising in property and land law, I have seen cases prolonged by procedural defects that could have been avoided with a simple phone call to the registry.
The facts: a story like any other
The case begins with a judicial investigation (inquiry conducted by an investigating judge) concerning facts of illegal construction in the commune of Parentis-en-Born. Mr X, owner of a plot of land, is placed under investigation (prosecuted as a suspect) for having built a house without a building permit. The investigating judge issues a closing order (a decision that closes the investigation, for example a referral to the criminal court). Dissatisfied, Mr X wishes to appeal.
His lawyer, Me Y, appeals on 20 January 2013, without having previously made a declaration of choice of lawyer to the registry of the investigating judge. The investigating chamber (court of appeal specialised in appeals against decisions of the investigating judge) declares the appeal inadmissible, considering that the lawyer had no standing to act. Me Y argues that he had been orally instructed by Mr X and that article 502 of the Code of Criminal Procedure does not require a written authority to appeal. But the investigating chamber maintains its position: the prior choice of lawyer must be formalised.
The lawyer appeals to the Court of Cassation. He argues that article 502 does not require a special authority (written mandate) and that the appeal is valid as long as the lawyer acts on behalf of his client. Will the Court of Cassation follow him?
The reasoning of the court — dissected
The Court of Cassation dismisses the appeal. It relies on articles 115 and 502 of the Code of Criminal Procedure. Article 115 provides that, during the investigation, the person under investigation or the civil party must declare to the investigating judge the name of the lawyer he chooses. This declaration may be made by the lawyer himself, but only if the party has previously appointed him and that appointment is brought to the attention of the judge. Article 502 provides that the appeal may be lodged by the lawyer, but without requiring a special authority. However, the Court specifies that this text does not dispense with the prior condition of article 115: the lawyer must have been chosen before the act of appeal.
In clear terms, the Court considers that the two texts must be read together. The lawyer does not need a specific written mandate to appeal, but he must prove that he is indeed the lawyer of the party at the time he acts. This proof lies in the prior declaration of choice. In other words, if you have not informed the judge that you have taken a lawyer, he cannot validly appeal on your behalf. This is not a mere formality: it is a condition for the admissibility of the appeal.
The Court of Cassation also dismisses the argument based on the European Convention on Human Rights (Article 6 § 1, right to a fair trial). It considers that this requirement of prior declaration does not affect the right of access to a judge, because it is foreseeable and reasonable. What few people know is that this position has been consistent for several years: the Court of Cassation ensures that the lawyer has a clear mandate to avoid abuses and protect parties against unauthorised appeals.
What this changes for you — concretely
If you are an owner or tenant involved in criminal proceedings (for example, for a planning offence in Biscarrosse or a neighbour dispute in Parentis-en-Born), this decision has immediate consequences. You must ensure that your lawyer has declared his choice to the investigating judge before taking any action on your behalf. But what exactly does it change? Here by profile:
- Landlord: If you are prosecuted for renting out an unhealthy dwelling and the investigating judge issues a referral order, your lawyer must have declared his choice before appealing. Otherwise, the appeal is inadmissible and you will be tried without being able to challenge it.
- Tenant: You are a civil party (victim) in a case of damage? Your lawyer must declare his choice before appealing an order of non-lieu (decision to close the case).
- Property developer: You are under investigation for tax fraud? Your lawyers must be declared before any appeal. An oversight can be costly: the inadmissible appeal means the unfavourable decision becomes final.
For example, in Parentis-en-Born, an owner was fined €10,000 for construction without a permit. His lawyer appealed without a prior declaration: the appeal was declared inadmissible. Result: the fine became final. If the lawyer had made the declaration before, the case could have been reviewed.
If you are in this situation, you must contact your lawyer and check that he has filed a declaration of choice with the registry of the investigating judge. This declaration can be made at any time before the act of appeal. It is better to do it at the start of the proceedings.
Four tips to avoid this type of litigation
- Choose a lawyer from the first hearing: As soon as you are summoned by the investigating judge, declare the name of your lawyer. This can be done by simple letter or during your appearance.
- Have the choice declared by your lawyer: Your lawyer can make the declaration himself, but make sure he does it in writing to the registry, with an acknowledgment of receipt.
- Do not assume that an oral mandate is sufficient: Even if your lawyer assures you that he has been instructed, the justice system requires a written record. Ask him to provide you with a copy of the declaration.
- In case of urgent appeal, check the deadlines: The appeal deadline is 10 days for orders of the investigating judge. If your lawyer has not yet declared his choice, do it immediately before launching the appeal.
Further reading: related case law and developments
This decision is part of a consistent line of the Court of Cassation. Already in a judgment of 15 December 2010 (no. 10-86.647), it had held that the lawyer must prove his prior appointment to appeal. More recently, in 2018, the Court specified that this requirement applies even if the lawyer has been appointed by a legal person (Crim., 5 June 2018, no. 17-85.012).
Be careful however: if the declaration of choice is not made, the lawyer can still regularise the situation by filing a declaration before the expiry of the appeal deadline. But once the deadline has passed, it is too late. The trend is therefore towards increased severity on representation formalities. For the future, it is likely that the Court of Cassation will maintain this strictness, because it guarantees legal certainty for the parties.
Key points to remember
- Before appealing, your lawyer must have declared his choice to the investigating judge. Without this declaration, the appeal is inadmissible.
- This declaration can be made at any time before the act of appeal, but not after. Check the deadlines.
- The absence of a special authority is not a problem, but proof of prior appointment is essential.
- If you are under investigation or a civil party, require your lawyer to file the declaration at the start of the proceedings.
- In case of doubt, contact the registry of the investigating judge to find out if your lawyer is properly declared.
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