Confusion of Sentences: When Only the Most Severe is Enforced (Even with Suspension)

Imagine: you own a flat in Cannes, and your tenant, Mr. D., repeatedly falls behind on rent. You start proceedings and obtain a conviction. But the same tenant is also being prosecuted for damage to another property he occupies in Le Cannet. Two separate cases, two judgments. What if the prison sentences with partial suspension could be added together? How far does the punishment go? The question every landlord asks: will the tenant serve a total sentence or benefit from a merger? The Court of Cassation answered in a 1980 decision: in case of merger, only the most severe penalty is enforced, even if it includes a partial suspension. The suspension does not fragment the sentence: it remains indivisible.

The Facts: A Story Like Many Others

Mr. X, owner of a building in Cannes, had granted a commercial lease to Mr. Y, a shopkeeper. Soon problems arose: unpaid rent, damage, neighbourhood disturbances. Mr. X sued Mr. Y in the criminal court for trespass and damage. At the same time, Mr. Y was prosecuted in another case for fraud. Both proceedings led to convictions: the first to 6 months' imprisonment, 3 of which suspended; the second to 4 months' imprisonment (immediate). The court ordered the merger of the sentences, meaning they would be enforced as a single sentence. But which one? The prison administration considered that only the most severe sentence (6 months, 3 suspended) should be enforced. Mr. Y contested: according to him, the immediate part of the most severe sentence (3 months) and the lesser sentence (4 months) should be added, making 7 months' imprisonment. The Court of Appeal agreed with him. Mr. X appealed to the Court of Cassation. The Court had to decide: does a partial suspension make the sentence divisible?

The Court's Reasoning — Analysed

The Court of Cassation quashed the appeal decision. It recalled the principle set out in Article 5 of the former Penal Code: 'the most severe penalty suffices for the punishment of offences committed before the conviction.' In short, when two sentences are merged, only the highest sentence remains and is enforced. The lesser sentence is absorbed, as if it never existed. But what about a partial suspension? The Court held that the most severe sentence is indivisible: one cannot separate the immediate part from the suspended part. Thus, in our example, the sentence of 6 months (3 suspended) is the most severe: it is enforced in full, but the suspension applies to the last 3 months. The sentence of 4 months' immediate imprisonment is absorbed and gives rise to no additional enforcement. In other words, Mr. Y will only serve 3 months' immediate imprisonment (the first 3), then be on conditional release for the 3 months with suspension. The merger cannot create a hybrid sentence that adds together the immediate parts of both convictions. This reasoning has remained constant since 1980 and has been confirmed subsequently.

What This Means for You — Practically

For a landlord in Cannes or Le Cannet, this decision has a direct impact on rent recovery. Suppose your tenant is sentenced to 3 months' immediate imprisonment for unpaid rent, and to 6 months with suspension for damage. If a merger is ordered, only the 6-month suspended sentence is enforced: your tenant will not serve any immediate imprisonment! You must therefore be vigilant at hearings to ask that the merger not be ordered if you want immediate enforcement. For the tenant, this decision is protective: it prevents an excessive accumulation of sentences. But beware: if the sentences are not merged (which is often the case in practice), accumulation is possible. What few people know is that merger is not automatic: it must be requested by the lawyer or ordered by the judge. If you are being prosecuted for several offences, ask for merger to limit your sentence. If you are a landlord, on the other hand, oppose merger if you want all sentences to be enforced.

Four Tips to Avoid This Type of Dispute

• Negotiate a criminal settlement: before trial, propose an agreement (paying rent, repairing damage) to avoid multiple convictions. In Cannes, mediation can be arranged at the court.
• Request merger at the first conviction: if you are a tenant and two proceedings are ongoing, ask your lawyer to request merger of sentences at the first judgment.
• Challenge merger if you are a landlord: during arguments, emphasise the seriousness of the facts so that the judge refuses merger. Show that the offences are separate (unpaid rent vs. damage) and deserve separate sentences.
• Check criminal records: before signing a lease, request an extract of the criminal record (bulletin no. 2) to find out about the tenant's previous convictions. This can influence your decision.

Further Reading: Related Case Law and Developments

The 1980 solution was confirmed by a decision of the Criminal Chamber of 26 April 1989 (no. 88-85.712), which states that merger is a favour granted to the convicted person and cannot harm him. However, since the reform of the Penal Code in 1994, Article 132-3 of the new Penal Code repeats the same principle: 'in case of merger, the most severe penalty alone is enforced.' The case law therefore remains constant. However, a nuance: if the sentences are of a different nature (e.g., imprisonment and fine), merger is not possible. What this means for the future: the trend is towards protection of the convicted person, but judges may refuse merger if the offences are particularly serious. undefined, I have seen cases where merger was refused for repeat-offender tenants.

Key Takeaways

FAQ:

• Is merger of sentences automatic? No, it must be ordered by the judge or requested by the lawyer.
• Can I add the immediate parts of two merged sentences? No, only the most severe sentence is enforced, with any suspension.
• What if I am a landlord and my tenant has merged sentences? Check whether the judge ordered merger; if in doubt, ask your lawyer whether the immediate sentence will actually be enforced.
• Can a partial suspension be revoked? Yes, if the convicted person commits a new offence during the probation period.
• How do I know if merger was ordered? Read the operative part of the judgment: it will say 'merges' or 'orders the merger'.

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