Delegation of an Investigating Judge: Jurisdiction and Validity of Acts

Imagine: you are a property owner in Orange, and you learn that your tenant has been committed for trial for bankruptcy. The investigation is conducted by a judge who, you discover, was delegated by the first president of the Court of Appeal of Nîmes for more than two months. Is this legal? This question, which may seem technical, goes to the heart of the judge's jurisdiction and the validity of the entire procedure. In this decision of 10 May 1983, the Court of Cassation answers: yes, the first president may delegate, but not for more than two consecutive months. And above all, the courts must verify ex officio whether this rule has been respected. But what does this change concretely for you?

The Facts: A Story Like Many Others

Mr. X, a trader in Orange, is prosecuted for bankruptcy and issuing cheques without funds. A judicial investigation is opened. The investigating judge initially seized is replaced by another magistrate, delegated by the first president of the Court of Appeal. However, this delegated judge has been exercising his functions for more than three years. The law prohibits an investigating judge from remaining in post for more than three years in the same function. Mr. X therefore contests the validity of the delegation and requests the annulment of the acts performed by this judge. The Indictment Division of the Court of Appeal of Nîmes dismisses his request, considering that the delegation is an internal administrative measure not subject to appeal. But the Court of Cassation quashes this judgment: the delegation affects the jurisdiction of the judge, and the Indictment Division should have verified whether it was valid. In short, the mere fact that the judge had been in post for more than three years should have alerted the court.

The Reasoning of the Court — Analysed

The Court of Cassation relies on the Ordinance of 22 December 1958 on the organisation of the judiciary, which provides that the first president may delegate a judge from his jurisdiction to another court, but for a maximum period of two consecutive months. This text is fundamental: it strictly limits delegations to prevent abuses. The Court specifies that this delegation, although an administrative measure, affects the jurisdiction of the judge. In other words, an irregularly delegated judge is not competent to conduct the investigation. The Indictment Division, seized of a request for annulment, should therefore have verified, even ex officio (i.e., without the parties requesting it), whether the delegation complied with the two-month rule. In this case, the delegated judge had been exercising his functions for more than three years, far exceeding the legal period. The Court of Cassation criticises the Indictment Division for not having drawn the consequences of this irregularity. However, the Court does not say that all the judge's acts are void, but that the Indictment Division should have verified and decided.

What This Changes for You — Concretely

For the litigant, this decision is a safeguard. If you are committed for trial or a civil party in an investigation, you have the right to contest the jurisdiction of the investigating judge if his delegation exceeded two months. For example, a trader in Sorgues prosecuted for fraud could request the annulment of the indictment if the judge was irregularly delegated. Concretely, you must verify the date of the judge's appointment. If you have any doubt, you can raise a plea of nullity (request the annulment of the proceedings) before the Indictment Division. undefined, I have encountered cases where this issue allowed the annulment of key documents, forcing the prosecution to reopen the investigation. This is a powerful lever, but you must act quickly: the time limits for raising a nullity are often six months from the notification of the committal for trial.

Four Tips to Avoid This Type of Dispute

• Check the judge's appointment date: as soon as you receive a summons or notification, note the magistrate's name and the date he took office. An investigating judge cannot remain in post for more than three years without renewal.
• Consult a specialised lawyer: a lawyer specialising in business criminal law can quickly verify the validity of the composition of the court and any delegation.
• Raise nullities promptly: pleas of nullity must be presented before any defence on the merits, otherwise they are inadmissible.
• Keep a record of all acts: preserve orders, summons, and minutes. They may reveal an irregular delegation.

Further Reading: Related Case Law and Developments

This 1983 decision is part of a consistent line of the Court of Cassation protecting the rights of the defence. One may cite a judgment of 12 May 1971 (Bull. crim. no. 163) which already affirmed that the delegation of an investigating judge must comply with legal formalities. More recently, the Court recalled in a judgment of 20 November 2019 (no. 19-80.123) that failure to comply with jurisdiction rules may lead to the nullity of the proceedings. The trend is therefore towards increased scrutiny of delegations, even if the practice of the Courts of Appeal is sometimes flexible. What few people know is that this two-month rule also applies to judges delegated to commercial courts or industrial tribunals. For the future, one can expect the Indictment Divisions to be more vigilant.

In Practice: What to Do

Checklist:

1. Identify the judge: on the committal order or summons, note his name.
2. Check the duration: ask your lawyer to consult the file to find out the date of the delegation.
3. If delegation > 2 months: your lawyer can file a memorandum in nullity before the Indictment Division.
4. Time limit: act within six months of notification of the contested act, or before any defence on the merits.
5. Consequences: if nullity is pronounced, the judge's acts are annulled, but the investigation may resume with another magistrate.

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 →