Exclusive Criminal Jurisdiction to Remove Seals: A Lesson for Landlords

Imagine: you are the owner of a building in Cassis, which you let to a hotelier. One day, the police arrive, close the establishment for illegal activity, and affix seals on the doors. As the owner, you want to recover your property to relet it to an honest operator. To whom should you apply? To the civil court? To the criminal court? The answer is far from obvious, as illustrated by a case decided by the Court of Cassation in 1972. This decision, still relevant today, lays down a clear rule: seals affixed in the execution of a sentence can only be removed before the criminal judge. Why such rigidity? And how can you protect your rights without getting lost in the judicial maze? Let us delve into this story, which might concern you if you own a property let for regulated activities.

The Facts: A Story Like Those That Happen Every Day

Mr X, owner of a building in Cassis, had let his premises to a hotelier. The latter operated the hotel without complying with the rules, which led the criminal judge (correctional court) to order the closure of the establishment on the basis of Article 31 of the Ordinance of 23 December 1958. To ensure the execution of this closure, seals were affixed to the doors of the hotel. However, Mr X was not the convicted person: he was a third party, the owner of the building. He considered the seals were no longer justified, as the hotelier had ceased his activity and the lease had been terminated. He therefore applied to the Tribunal de grande instance (TGI) sitting in civil matters to request the removal of the seals. The TGI declared itself incompetent, and the Paris Court of Appeal confirmed this. Mr X then appealed to the Court of Cassation. The Court of Cassation dismissed his appeal, affirming that only the criminal court which ordered the closure can remove the seals, even for a third-party owner. A decision that set a precedent and continues to apply today, particularly in the jurisdiction of Marseille where this type of litigation is common.

The Reasoning of the Court — Analysed

The judges of the Court of Cassation based their reasoning on two texts. First, Article 31 of Decree No. 58-1284 of 22 December 1958, which provides that the Tribunal de grande instance does not have jurisdiction over matters for which jurisdiction is expressly attributed to another court by reason of the nature of the case. Secondly, Articles 710 and 711 of the Code of Criminal Procedure (CPP), which provide that incidents relating to the execution of a criminal sentence (such as the closure of a hotel) must be brought before the court or the court of appeal that pronounced the sentence. In short, as soon as the seals are a measure of execution of a sentence, their removal is an incident of execution falling within the jurisdiction of the criminal judge, not the civil judge. It does not matter that the applicant is a third party not convicted: he is considered an 'interested party' within the meaning of Article 711 CPP, and must therefore apply to the criminal court. The Court of Cassation thus confirmed the judgment of the Paris Court of Appeal, without creating a reversal: it simply recalled a constant principle. The arguments of Mr X, who invoked his right of ownership, were insufficient to set aside the rule of jurisdiction of public policy.

What This Means for You — In Practice

If you are the owner of a building let to a business that is subject to an administrative or judicial closure with the affixing of seals, you cannot apply to the civil court to have them removed. Even if the tenant has left the premises or the lease has been terminated, the seals remain a measure of criminal execution. In practice, you must apply to the criminal court (or court of appeal) that ordered the closure, through a lawyer, by way of an application for an incident of execution. For example, in Marseille, an owner of a hotel located in the Saint-Charles station area had to wait six months before the criminal judge removed the seals, because the convicted person had appealed. During this time, the owner lost rent: at €3,000 per month, the bill amounted to €18,000. If you are in this situation, you must act quickly: a hearing before the criminal judge can be obtained promptly, but you must prove that the seals are no longer justified (for example, definitive cessation of the illegal activity). The cost of the proceedings is moderate (a few hundred euros for a lawyer), but the time frame depends on the calendar of the criminal court. Conversely, if you apply to the civil court, you risk a dismissal for lack of jurisdiction, with costs borne by you.

Four Tips to Avoid This Type of Dispute

• Verify your tenant's activity before signing a commercial lease: require a Kbis extract, a certificate of compliance with standards, and include a forfeiture clause in case of illegal activity. In Cassis, an owner avoided a year of proceedings by refusing to let to a hotel manager with a criminal record.
• In case of judicial closure, immediately contact a specialised lawyer to determine which court has jurisdiction. Choosing the wrong court will cost you time and money.
• Negotiate an amicable termination with the tenant as soon as the first infringements occur: if seals are affixed after your termination, you will still have to go through the criminal judge, but you will have a strong argument to request removal.
• Anticipate the financial consequences: take out rent loss insurance covering periods of administrative or judicial closure. Some policies in Marseille include this cover for an additional 5 to 10% of the premium.

Further Reading: Related Case Law and Developments

This 1972 decision is part of a consistent line: the Court of Cassation has always sought to preserve the jurisdiction of the criminal judge for everything relating to the execution of sentences. For example, in a judgment of 14 January 1998 (No. 96-85.543), it held that the removal of seals affixed to a vehicle seized in criminal proceedings also fell within the jurisdiction of the investigating judge or the criminal court, even if the owner was a third party in good faith. More recently, in 2018, the Criminal Chamber recalled that the owner of premises closed by administrative measure (e.g., closure of a drinking establishment) must apply to the administrative judge, not the civil judge, confirming the logic of specialisation of jurisdiction. The trend is therefore clear: do not try to circumvent the court that ordered the measure. In the future, this rule could be extended to other execution measures, such as the confiscation of real property. In practice, this means that an owner must always identify the origin of the measure before acting.

Key Points to Remember

• Exclusive jurisdiction of the criminal judge: to remove seals affixed in execution of a sentence, apply to the criminal court or court of appeal that pronounced the conviction, even if you are a third party.
• Never apply to the civil court: it will declare itself incompetent, and you will lose time and costs.
• Act quickly: the procedure for an incident of execution can be fast (a few weeks) if you prove the seals are no longer necessary.
• Protect your interests: forfeiture clause in the lease, rent loss insurance, and advice from a lawyer at the first signs of trouble.

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