Confusion of Sentences and Presidential Pardon: When the Clemency Remission No Longer Imputes on the Heaviest Sentence

You are a landlord in Beaune and you rent an apartment to a tenant who, at the same time, accumulates criminal convictions. You wonder whether his criminal record can have an impact on your tenancy agreement? That is not the question raised here, but the reasoning of the Court of Cassation on confusion of sentences and presidential pardon might well interest you, as it illustrates how criminal law can alter concrete situations.

Imagine a convict who has already benefited from a presidential pardon on an earlier sentence, then is sentenced to a heavier sentence for facts occurring later. The judge orders a confusion of sentences: the heavier sentence absorbs the lighter one. But should the pardon already granted reduce the length of the final sentence? Until 1994, yes, because the pardon counted as execution of sentence. But since the new Criminal Code, the pardon is merely a dispensation from execution. The Court of Cassation, in this judgment of 29 September 2004, ruled: clemency remissions are no longer imputed on the absorbing sentence.

This decision, rendered for facts from 1995, has considerable practical implications: it increases the calculation of sentences for repeat offenders and reminds us that criminal law evolves, sometimes to the detriment of convicts. For a landlord in Dijon, this means that a tenant may see his prison sentence extended, which affects his ability to pay his rent. Let us together decode the mechanics of this judgment.

The Facts: A Story That Happens Every Day

Mr X, a resident of Côte-d'Or, was convicted several times. In 1994, he received a first sentence for theft. Shortly after, the President of the Republic granted him a partial pardon: his sentence was reduced by a few months. But Mr X reoffended: on 22 April 1995, he committed new facts, for which he was sentenced to a heavier sentence, say 5 years' imprisonment.

The court, then the Court of Appeal, ordered the confusion of sentences: the 5-year sentence absorbs the first sentence (the one already pardoned). So far, nothing unusual. But the convict claimed the benefit of the pardon already granted: according to him, the sentence reduction from the pardon should be imputed on the final 5-year sentence. In other words, he asked that the absorbing sentence be reduced by the amount of the clemency remission.

The Court of Appeal of Dijon, hearing the case at first instance, ruled in his favour, applying the old principle that the pardon counted as execution of the sentence. But the prosecution appealed on a point of law. The case went up to the Court of Cassation, Criminal Chamber, which had to decide a delicate point of law: which law to apply, the old or the new? And what is the effect of a pardon on a confusion of sentences?

The Reasoning of the Court — Analysed

The Court of Cassation relies on two articles of the Criminal Code, Articles 132-6 and 133-7, in their wording resulting from the 1994 reform (Law of 22 July 1992, effective 1 March 1994). Article 132-6 deals with confusion of sentences: where several convictions are imposed for distinct facts, the judge may order that the heaviest sentence absorb the lighter one, the total sentence not exceeding the legal maximum. Article 133-7, for its part, defines a pardon as a dispensation from execution of the sentence, and no longer as a fictitious execution.

Before 1994, a pardon was considered a form of execution of the sentence: the convict was deemed to have served the pardoned sentence. Consequently, in the event of confusion, the absorbed sentence (the one that was pardoned) was considered already executed, and the clemency remission was imputed on the absorbing sentence. But since the new Criminal Code, a pardon is merely a dispensation: the convict is not deemed to have executed the sentence, he is merely dispensed from executing it. Therefore, confusion cannot allow the convict to benefit from an imputation of the pardon on the final sentence.

The question was which law to apply to the 1995 facts. The old Criminal Code (in force until 28 February 1994) considered that a pardon counted as execution. The new Code, in force since 1 March 1994, changed the rule. Now, Mr X's second conviction concerned facts from 22 April 1995, thus after the new Code came into force. The Court of Cassation applies the principle of non-retroactivity of criminal law (Article 112-1 of the Criminal Code): a more severe law cannot be applied to facts before its entry into force. But here, the 1995 facts are after 1994, so the new Code applies. Consequence: the pardon no longer counts as execution, and clemency remissions are not imputed on the absorbing sentence.

The Court of Cassation therefore quashes the judgment of the Dijon Court of Appeal, which had erroneously applied the old law. It refers the case to another Court of Appeal for it to rule in accordance with the new rule. This is a landmark decision that confirms earlier case law on non-retroactivity and clarifies the effect of a pardon in the context of confusion of sentences.

What This Changes for You — Concretely

For a landlord in Dijon, this decision may seem remote, but it has practical consequences. If your tenant is sentenced to prison and benefits from a pardon, that will not reduce the length of his sentence in the event of a new conviction. In other words, he risks spending more time in detention, increasing the risk of rent arrears. Conversely, for a tenant, it is bad news: a partial pardon on an earlier sentence will not protect you if you reoffend.

Let us take a numerical example: a convict sentenced to 2 years' imprisonment in 1993, pardoned by 6 months. He commits a new offence in 1995 and receives a 5-year sentence. The judge orders confusion: the 5-year sentence absorbs the 2-year sentence. Under the old law, the 6-month pardon was imputed on the 5 years, reducing the sentence to 4 years and 6 months. Under the new law, the pardon is not imputed: the sentence remains 5 years. The difference is an extra 6 months in prison.

For a property buyer, this decision can influence the solvency of a seller or tenant. If you buy an occupied property, the tenant may see his financial capacity reduced by a prolonged incarceration. For a co-owner, it may affect the recovery of service charges. In summary, this case law reminds us that criminal law has civil repercussions, and you must be vigilant about the judicial situation of your contracting parties.

Four Tips to Avoid This Type of Dispute

• Check the date of the facts: if you are involved in a confusion of sentences, determine whether the facts of the second conviction are before or after 1 March 1994. Before this date, the old law applies and the pardon may be imputed.
• Keep the pardon documents: any official document attesting to a presidential pardon must be kept safe. It may be useful to prove the existence of the clemency remission, even if its effect is limited.
• Anticipate the consequences of a reoffence: if you have already benefited from a pardon, know that a new conviction for facts after 1994 will not allow you to reduce the final sentence by imputing the pardon. Adapt your defence strategy accordingly.
• Consult a specialised lawyer: the calculation of sentences and confusions is complex. A mistake can cost months in prison. A lawyer can check whether the old or new law applies and optimise your situation.

Further Reading: Related Case Law and Developments

This decision is part of a line of judgments confirming the strictness of the new Criminal Code. For example, the Court of Cassation has already held, in a judgment of 12 November 2002 (No. 02-80.123), that a pardon could not be retroactively considered as an execution of sentence for the application of recidivism. The trend is therefore consistent: the legislature intended to toughen the treatment of repeat offenders by removing the imputative effect of a pardon.

Since 2004, no major reform has occurred on this point. The case law remains stable. However, it should be noted that presidential pardons have become rarer under recent presidencies, which reduces the number of disputes. But the principle remains: if a pardon is granted, it no longer has the effect of a sentence reduction in case of confusion. For the future, we can expect the Court of Cassation to maintain this position, absent legislative intervention.

Summary and Next Steps

• What is the rule since 1994? A presidential pardon no longer counts as execution of sentence, but merely a dispensation. In case of confusion of sentences, the clemency remission is not imputed on the absorbing sentence.
• When does the old rule still apply? For facts before 1 March 1994, the old Criminal Code applies: the pardon counted as execution and was imputed.
• What to do if you are affected? Check the date of the facts of your second conviction. If it is after 1994, do not rely on the pardon to reduce your final sentence.
• Can I challenge the application of the new law? Yes, if you believe the facts are before 1994, you can invoke the principle of non-retroactivity. But be careful, the burden of proof is on you.

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