Direct Summons for Defamation: The Rights of Victims against Judicial Police Officers

Imagine this scenario: you are the owner of a flat in Cournon-d'Auvergne, and a judicial police officer (OPJ) — perhaps a commissioner or a gendarme — publicly accuses you of an offence you did not commit. Remarks made in front of witnesses, reported in the local press. Your reputation is in tatters, your social landlord threatens you with termination, your neighbours look at you askance. What can you do? The answer is in a few words: the direct summons. This decision of the Court of Cassation, delivered on 14 May 1985, opens a valuable procedural avenue for victims of defamation, even when the alleged perpetrator is an OPJ. But beware, the path is strewn with procedural pitfalls.

The question is simple: can a private individual directly summon an OPJ before the criminal court for defamation, without going through the investigating judge? The Court of Cassation answers yes, but with a crucial nuance. If the offence was committed in the exercise of the OPJ's functions, the court cannot declare itself incompetent of its own motion: only the Court of Cassation can do so, upon referral. Otherwise, the ordinary court is competent. A subtle distinction, but one with serious consequences for victims.

For owners and tenants in Issoire or elsewhere, this decision is a double-edged sword. On the one hand, it allows bypassing the delays of judicial investigation. On the other hand, it requires strict compliance with rules of jurisdiction, on pain of having the case dismissed. Analysis.

The Facts: A Story Like Many Others

The case begins in Strasbourg, where a private individual, whom we shall call Mr R., is the victim of defamatory remarks made by a judicial police officer. The exact details of the accusations are not specified in the decision, but one imagines allegations concerning a criminal offence — theft, fraud, or any other act damaging to honour. Mr R., feeling seriously harmed in his reputation, decides not to file a complaint with a civil party application (which would have opened an investigation), but to use the direct summons: he summons the OPJ directly before the criminal court of Strasbourg.

The direct summons is a procedure that is simple in appearance: the victim serves a bailiff's writ on the alleged perpetrator, inviting him to appear before the court. No need for an investigating judge, no preliminary inquiry delays. But in this case, the criminal court of Strasbourg, seized on 26 October 1982, refuses to hear the case. It declares itself incompetent, considering that the offence was committed by an OPJ in the exercise of his functions, which would justify a special procedure (referral to another court designated by the Court of Cassation, according to Article 687 of the Code of Criminal Procedure).

Mr R. does not give up. He files an appeal in cassation, contesting this decision of incompetence. The Court of Cassation, in its judgment of 14 May 1985, rules in his favour. It annuls the judgment of the criminal court and refers the case back to the same court (Strasbourg) for it to rule on the merits. Why? Because the court declared itself incompetent without the Court of Cassation having been seized of a request for designation of a court. A fatal procedural error.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Articles 50 and 687 of the Code of Criminal Procedure (CPP). Article 50 states that the direct summons is open to the victim for all offences (criminal offences), except as otherwise provided by law. Article 687, for its part, provides a special rule: when an offence is committed by an OPJ or a mayor (or deputy) in the exercise of his functions, the court normally competent can only hear it if it is designated by the Court of Cassation. The aim is to avoid local pressure on judges who might be close to the alleged perpetrator.

But note: this rule only applies if the offence was committed in the exercise of functions. If it was outside such functions (for example, an OPJ who insults a neighbour in a private context), the ordinary court remains competent. In the case decided, the Court of Cassation finds that the Strasbourg court did not verify whether the defamation was committed in or outside the exercise of functions. It merely noted the OPJ status of the perpetrator and declared itself incompetent. Yet, even in the case of an offence committed in the exercise of functions, the court cannot declare itself incompetent on its own initiative: it must wait for the Court of Cassation to be seized and designate another court. By ruling alone, it violated Article 687.

This reasoning is important because it confirms a procedural principle: the jurisdiction of the court is a matter of public policy, but it cannot be decided unilaterally by the judge seized when a special text requires a designation by the Court of Cassation. The decision does not create a new right, but clarifies the applicable rules. It is in line with consistent case law: the direct summons is a right of the victim, which judges cannot hinder by unverified grounds of incompetence.

What This Changes for You — Practically

If you are a victim of defamation by an OPJ (police officer, gendarme, mayor acting as OPJ), this decision offers you a faster route than a complaint with civil party application. You can directly summon the perpetrator before the criminal court of the place of the offence. But beware of the trap: if the OPJ acted in the course of his functions (for example, a defamatory official report), the court may have to be designated by the Court of Cassation. In that case, your direct summons risks being rejected if you do not yourself request this designation. How to do it? By submitting a request to the public prosecutor (procureur) for referral to the Court of Cassation, or by raising the question before the court.

For an owner in Issoire who suffers defamatory accusations from a municipal police officer, the deadlines are those of the direct summons: you must act within 3 months of publication of the remarks (limitation period for the public action in defamation). The costs? Count about €150 to €300 for the bailiff, plus lawyer's fees. But the potential gain is a conviction of the perpetrator to pay damages (often €1,000 to €10,000 depending on severity) and a judicial publication.

For a tenant in Cournon-d'Auvergne, the same scenario applies. If you are defamed by a rural guard (OPJ) who publicly accuses you of damaging street furniture, you can use the direct summons. But check carefully whether the remarks were made in the course of his functions (for example, during a police report) or not (for example, in a café). If within functions, anticipate the procedural complexity.

Four Tips to Avoid This Type of Dispute

• Keep evidence of defamatory remarks. Audio recordings, screenshots, witness statements: the more evidence you have, the stronger your direct summons will be. Defamation is a press offence: proof is free, but written evidence is king.
• Check the limitation period. Defamation is time-barred after 3 months from publication (or last dissemination). After this period, you can no longer take criminal action. Act quickly, do not delay.
• Distinguish the functions of the perpetrator. If the OPJ acted in the exercise of his functions, prepare for a heavier procedure: ask the court to stay proceedings and refer to the Court of Cassation for designation of a court. It is better to be advised by a lawyer.
• Do not neglect the civil route. If the criminal route seems too complex, you can also sue for civil liability (Article 1240 of the Civil Code) before the judicial court to obtain damages. The limitation period is 5 years, longer, but you will not get a criminal conviction.

Further Analysis: Related Case Law and Developments

This decision is part of consistent case law of the Court of Cassation. We can cite a judgment of 20 February 1990 (No. 88-86.737) which confirms that the direct summons is available even against a magistrate, subject to the same reservations under Article 687. On the other hand, for mayors, a distinction has been made: if the mayor acts as a registrar (outside OPJ functions), the rule of Article 687 does not apply. The trend is therefore protective of victims' right of action, but with increased vigilance on jurisdiction.

Since 1985, the law has not fundamentally changed on this point. However, practice shows that courts are increasingly strict on form: a poorly drafted direct summons (e.g., omission to mention OPJ status) may be annulled. For the future, we can expect the Court of Cassation to further clarify the criteria for distinguishing between functions and non-functions, particularly for deputy judicial police officers (rural guards, municipal police officers).

Frequently Asked Questions

Q: Can I directly summon a municipal police officer for defamation?
A: Yes, if the municipal police officer is a judicial police officer (OPJ) — which is the case for rural guards and certain officers. Direct summons is possible, but check whether the remarks were made in the exercise of his functions.

Q: What if the court declares itself incompetent?
A: Do not give up. File an appeal in cassation, as in the commented case. You can also ask the public prosecutor to request designation of a court by the Court of Cassation.

Q: What is the cost of a direct summons?
A: Count about €100 to €200 for the bailiff's writ, plus lawyer's fees (flat fee between €500 and €2,000 depending on complexity). If you win, these costs can be imposed on the perpetrator.

Q: Can I also claim damages?
A: Yes, by becoming a civil party within the direct summons. The court may order the perpetrator to pay you a sum in compensation for moral and material harm.

Q: Is there a deadline for summons?
A: Yes, 3 months from publication or last dissemination of defamatory remarks. After this period, the public action is extinguished. Act quickly.

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