Eviction Order and Control by the Criminal Judge: What the Court of Cassation Says

Imagine: you are the owner of a flat in La Seyne-sur-Mer, and you learn that your tenant is subject to an eviction order issued by the prefecture. You are pleased, thinking you will quickly recover your property. But what happens if this order is illegal? Can the tenant challenge it before the criminal court when prosecuted for not having left the premises?

This question was answered by the Court of Cassation in a judgment of 30 October 1990, which remains authoritative today. The solution is clear: even an individual administrative act, such as an eviction order, must be reviewed by the criminal judge if a criminal penalty is at stake. In other words, the judge cannot turn a blind eye to an illegality on the pretext that the act emanates from the administration.

In this article, we will dissect this decision, understand its implications for landlords and tenants, and give you practical advice to avoid pitfalls. Whether you are in Bandol or elsewhere, the principles remain the same.

The facts: a story like many that happen every day

Mr. X, a foreign national, is subject to an eviction order issued by the prefect of the Var. This order requires him to leave French territory. But Mr. X does not comply with this obligation. He is then prosecuted before the criminal court for evading the execution of the eviction order, which constitutes a criminal offence.

Before the court, Mr. X raises an exception: he argues that the eviction order is illegal. According to him, the administration did not comply with the formalities or the substance of the law when making this decision. The criminal court, perplexed, wonders whether it can examine this question. Indeed, in principle, the legality of administrative acts falls within the jurisdiction of the administrative judge, not the judicial judge. But here, it is the criminal judge who must impose the penalty.

The court decides to stay proceedings (suspend the trial) and refers the case to the Court of Cassation to decide the jurisdictional issue. The Court of Cassation, in its judgment of 30 October 1990, affirms that the criminal judge has a duty to verify the legality of the order, both in form and substance, before convicting the accused. This is a victory for the rights of the defence.

The reasoning of the court — dissected

The Court of Cassation relies on a fundamental principle: when an administrative act is accompanied by a criminal penalty, the criminal courts (criminal court, court of appeal) must review its conformity with the law. This does not mean they can assess the expediency of the act (i.e., decide whether it was opportune or not), but they must verify that the act was taken in accordance with the rules, both as to form (procedure) and substance (grounds).

This reasoning is in line with well-established case law: the criminal judge is the guardian of individual liberties. He cannot impose a penalty if the act on which it is based is tainted with illegality. In short, if the eviction order is void, the criminal prosecution falls.

In this case, the Court of Cassation rejects the argument of the public prosecutor who argued that only the administrative judge could review the legality of the order. It recalls that the criminal judge has a linked jurisdiction: he must verify the constituent elements of the offence, and the order is part of them. If the order is illegal, the offence is not made out.

What few people know is that this decision protects both the accused and the administration. Indeed, if the administration makes a mistake, it must bear the consequences. But beware: the criminal judge cannot annul the order; he can only note its illegality and acquit the accused.

What this changes for you — concretely

For the landlord: If you are a landlord in Bandol and want to evict a foreign tenant subject to an eviction order, you must ensure that the order is perfectly legal. Otherwise, the tenant could challenge the criminal proceedings and remain in the premises. Check with the prefecture that the order was properly notified and that it complies with formalities (reasons, signature, etc.).

For the tenant: If you are the target of an eviction order, you can invoke its illegality before the criminal court if you are criminally prosecuted. For example, if the order was not issued by the competent authority or if your rights of defence were not respected, you can obtain an acquittal. But beware: you must raise this exception before any discussion on the merits.

For the purchaser: If you buy a property occupied by a tenant subject to an eviction order, inquire about the legality of that order. An illegal order could delay the release of the premises.

undefined, I have encountered cases where owners in La Seyne-sur-Mer had to wait months because the eviction order was poorly reasoned. The lost time amounts to unpaid rent, sometimes several thousand euros.

Four tips to avoid this type of dispute

• Check the regularity of the order upon notification: As soon as you receive an eviction order, have it examined by a lawyer. A procedural defect (illegible signature, lack of reasons) can render it void.
• Do not delay in acting: If you are a tenant and believe the order is illegal, apply to the administrative court in interim proceedings within two months of notification. At the same time, prepare your criminal defence.
• Keep all evidence: Keep a copy of the order, the acknowledgment of receipt, and any correspondence with the prefecture. These documents will be essential to demonstrate illegality.
• Anticipate the consequences: If you are a landlord, do not wait for the eviction to re-let. An illegal order can block the procedure for several months.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further reading: related case law and developments

This 1990 decision has been confirmed several times. For example, the Court of Cassation ruled in 1995 (Crim., 14 June 1995, No. 94-84.523) that the criminal judge must review the legality of a prefectural order even if the act is individual. More recently, case law has extended this review to police measures such as banning orders.

The trend is therefore towards strengthening the criminal judge's review of administrative acts when they condition a criminal penalty. This means that the administration must be even more rigorous in drafting its acts. For litigants, this is an additional guarantee against arbitrariness.

In the future, we can expect this principle to be extended to other acts, such as dangerous building orders or planning permissions, when their violation is criminally sanctioned.

Summary and next steps

FAQ:

Can I challenge an eviction order before the criminal court?
Yes, if you are criminally prosecuted for not having executed the order. You must raise the exception of illegality before any discussion on the merits.

What if the order is illegal?
The criminal judge can acquit you, i.e., declare you not guilty. But the order remains in force until it is annulled by the administrative judge.

What are the time limits for acting?
To challenge the order before the administrative judge, you have two months from its notification. Before the criminal judge, you can do so at any stage of the criminal proceedings, but it is best to do so at the hearing.

How much does a consultation with a lawyer cost?
A first 30-minute consultation with Maître Zakine is billed at €45, which can save you months of proceedings and much higher costs.

Can I obtain damages if the order is illegal?
Yes, if you suffer harm due to the illegality (e.g., unjustified pre-trial detention), you can seek compensation before the administrative judge.

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 →