Criminal Record and Convictions: When the Court of Appeal Is No Longer Competent

Imagine: you are a property owner in Wattrelos, and you learn that your tenant has been convicted of forgery. He begs you not to check his criminal record, because this conviction, he says, should be erased from record no. 2. But who can decide on this exclusion? The Court of Appeal that pronounced the sentence? Or the court that later ordered a merger of sentences?

This is exactly the question the Court of Cassation decided in a judgment of 28 June 1982, a decision that, although old, still governs the procedure. A man convicted in absentia to a prison sentence for forgery obtained, after surrendering, a merger of sentences before the Strasbourg tribunal de grande instance (High Court). Later, he asked the Court of Appeal to exclude the initial conviction from record no. 2. The Court of Appeal declared itself incompetent. The Court of Cassation upheld this position.

For non-lawyers, the message is clear: do not apply to just any court. The rule is simple: it is the last judge who ruled on the merits who is competent, even if he only modified the sentence. A detail that can change everything in your case.

The Facts: An Everyday Story

Let us go back to the facts. In 1979, the Strasbourg Court of Appeal convicted a certain Mr. X in absentia to a prison sentence for forgery. Mr. X was absent, probably unaware of the proceedings. A few months later, he appeared, opposed this default judgment, and the Strasbourg tribunal de grande instance, seized of the opposition, recorded his waiver of the opposition. But above all, it ordered a merger of sentences: the 2-year sentence imposed by the Court of Appeal was merged with another sentence, so that Mr. X served only one sentence.

Mr. X, after serving his sentence, wanted a fresh start. He asked the Strasbourg Court of Appeal, the one that had first convicted him, to exclude this conviction from record no. 2 of his criminal record, under Article 55-1 of the Criminal Code (now Article 775-1 of the Code of Criminal Procedure). But the Court of Appeal refused. Why? Because, in its view, the Strasbourg tribunal de grande instance, by ruling on the opposition and the merger, had rendered a new decision on the merits. Therefore, that court was the “last court that ruled on the merits”.

Imagine Mr. X’s disappointment: he thought that the Court of Appeal, as a higher court, remained competent. But the logic is relentless: the judgment on opposition, even if partial, replaces the default decision. Consequently, it is the court that becomes the judge of the exclusion.

The Reasoning of the Court — Analysed

The Court of Cassation, in its judgment of 28 June 1982, confirmed the reasoning of the Court of Appeal. The legal basis? Article 55-1 of the Criminal Code (now Article 775-1 of the Code of Criminal Procedure) provides that the exclusion of the mention of a conviction from record no. 2 may be requested “from the last court that ruled on the merits of the case”. What does “ruled on the merits” mean? It is not limited to the initial conviction. Any decision that modifies the sentence, such as a merger, a judgment on opposition, or even a mere addition of a sentence, is a decision on the merits.

The Court of Appeal had noted that the Strasbourg tribunal de grande instance had ruled on the opposition and had ordered a merger of sentences. This judgment, even if it merely recorded the waiver of opposition and ordered the merger, is a decision on the merits. Why? Because it modified Mr. X’s legal situation: instead of serving two sentences, he now served only one. This is a judicial act that has an effect on the criminal record.

The judges of the Court of Cassation insist: it does not matter that the Court of Appeal was the first to convict. As soon as a lower court renders a subsequent decision that affects the sentence, that court is the “last”. This is a strict rule of jurisdiction, intended to avoid multiple requests and confusion. In this case, the Court of Appeal was no longer competent, and it was right to declare itself incompetent.

Note that this decision is not a departure from precedent. It is part of consistent case law: the notion of “court that ruled on the merits” is interpreted broadly. Any decision that pronounces a sentence, modifies it or orders it (such as a merger) is considered a decision on the merits.

What This Changes for You — Practically

If you are an individual who has been convicted and wish to request the exclusion of a conviction from your record no. 2 (for example, to facilitate a rental or employment), you must identify the last court that modified your sentence. If, after your conviction on appeal, a court ordered a merger of sentences or ruled on an opposition, you must file your request with that court, not with the Court of Appeal.

Let us take a concrete example: a tenant in Marcq-en-Baroeul, convicted by the Lille criminal court to 1 year in prison for fraud, appeals. The Douai Court of Appeal upholds the sentence. Later, the same tenant is convicted by another court for another matter. A judge orders a merger of sentences. To request the exclusion of the first conviction from record no. 2, he must apply to the court that ordered the merger, not to the Douai Court of Appeal.

For landlord property owners: be vigilant. If a prospective tenant tells you that a conviction has been “erased”, ask him to provide proof of the exclusion decision. Verify that the court that ruled was indeed competent. An error of this kind could cost you dearly if the tenant causes damage and you discover that he had an unexpunged criminal record.

For real estate professionals (agents, property managers), this decision reminds you of the importance of verifying documents provided by clients. If an exclusion request is rejected for lack of jurisdiction, the client may lose time and money. Refer them to a specialised lawyer.

Four Tips to Avoid This Type of Dispute

• Identify the correct court: Before any exclusion request, list all judicial decisions concerning you (convictions, mergers, oppositions). The most recent, even if from a lower court, is the one you must apply to.
• Consult a lawyer before acting: A simple 30-minute appointment can avoid a procedural error that could cost you months. Maître Zakine receives you via video or in his office.
• Do not delay: The exclusion request can be made at any time, but the longer you wait, the greater the risk that the conviction will appear on your record no. 2. If you are looking for housing or employment, act quickly.
• Keep a record of all your decisions: Preserve judgments, orders, mentions of mergers. Without these documents, you will not be able to prove which is the last court. A simple photocopy may suffice.

Further Analysis: Related Case Law and Developments

This 1982 decision is part of a consistent line. For example, the Court of Cassation has had occasion to specify that the “last court” also includes judgments rendered on incidental matters (Cass. crim., 15 March 1978). More recently, the Criminal Chamber confirmed that the court that orders a merger of sentences is competent to rule on the exclusion (Cass. crim., 23 January 2007, No. 06-85.420).

The trend of the courts is therefore clear: jurisdiction is linked to the last decision on the merits, broadly understood. This means that if you had a conviction followed by a pardon or a reduction of sentence, it is the sentence enforcement judge who will be competent, not the initial Court of Appeal.

For the future, this rule could be simplified by the digitisation of criminal records, but for now, the procedure remains unchanged. Lawyers must be particularly attentive to the chronology of decisions.

In Practice: What to Do

Checklist for a request for exclusion from record no. 2:

1. Gather all your judicial decisions: initial conviction, appeals, oppositions, mergers, etc.
2. Identify the last decision on the merits: this is the one that modified the sentence or ruled on an opposition. If you have several decisions, the most recent is the correct one.
3. Verify that the court is still competent (some courts have been abolished or merged).
4. Draft a reasoned request: explain why the conviction should be excluded (rehabilitation, absence of recidivism, etc.).
5. File the request at the registry of the competent court. You may be represented by a lawyer, but it is not mandatory.
6. Wait for the decision: the judge rules without a hearing, unless requested otherwise.

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 →