Prosecutor's withdrawal of appeal: when can the prosecutor back out?

Imagine: you own a flat in Mont-Saint-Aignan, near Rouen. You have let your property to a tenant who, after several months without paying, ends up before the criminal court for occupation without right. The public prosecutor of Rouen appeals the decision, then the defendant withdraws. Can the prosecution still back out? This is the question that the Court of Cassation decided on 21 June 2006.

This decision, handed down in a Lyon case, has direct repercussions on property disputes throughout France, including in the Rouen jurisdiction. It clarifies a point of criminal procedure often overlooked: the possibility for the prosecution to withdraw its appeal after the defendant has withdrawn.

But what does this change for you, as a landlord, tenant or property professional? Much more than it seems. Follow me, I'll explain it all simply, as if we were chatting over coffee.

The facts: a story like those that happen every day

We are in Lyon, in 2005. Two defendants, whom I will call Mr. A and Mr. B, are convicted by the Lyon criminal court for offences that we will not detail here (the important thing is the procedural mechanism). The public prosecutor of Lyon, dissatisfied with the decision, appeals. Only Mr. A, one of the two defendants, also appeals on his own behalf.

A few weeks later, Mr. A changes his mind and withdraws his appeal. The public prosecutor, seeing that the only appealing defendant has backed out, also decides to withdraw. But the Advocate General (procureur général) before the Lyon Court of Appeal contests this: according to him, once the case is pending on appeal, only the Advocate General (himself) can act, not the first instance prosecutor. The public prosecutor had 'exhausted his competence' by lodging the appeal.

The case goes up to the Court of Cassation. The question posed is simple: can the public prosecutor withdraw his appeal after the defendant has withdrawn, even if the case is already pending on appeal?

In short, who has the final say to back out: the local prosecution or the Advocate General?

The reasoning of the court — broken down

The Court of Cassation, in its judgment of 21 June 2006 (No. 05-86.688), answers in the affirmative. It relies on Article 500-1 of the Code of Criminal Procedure (the text governing withdrawal of appeal). This article provides that 'the prosecution may withdraw its appeal lodged after that of the defendant in the event of the defendant's withdrawal'.

But the text does not specify whether this 'prosecution' includes the public prosecutor (first instance prosecution) or only the Advocate General (prosecution on appeal). The Court of Cassation interprets broadly: it considers that the article does not distinguish, so both are competent. In other words, the public prosecutor, who first lodged the appeal, may also withdraw, even if the case is already pending on appeal.

The reasoning is logical: since the defendant has withdrawn, there is no longer a principal appeal. The prosecution's appeal then becomes moot. Allowing the prosecutor to back out avoids unnecessary proceedings. This is an application of the principle of common sense: why maintain an appeal if the opposing party has given up?

Beware, however: this is not a blank cheque. The Court recalls that the prosecution's withdrawal is only possible if the defendant has withdrawn before or at the same time. If the defendant persists in his appeal, the prosecution cannot withdraw unilaterally. What few people know is that this decision confirms and consolidates previous case law. It does not create a new right, but it clarifies a procedural grey area.

undefined, I have come across cases where landlord owners, civil parties in criminal proceedings for unpaid rents, wondered whether the prosecution could still back out. This decision helps to secure the end of proceedings.

What this changes for you — concretely

For a landlord owner in Yvetot, this decision means that if you are a civil party in criminal proceedings (e.g. for tenant damage), and the defendant (your tenant) withdraws his appeal, the prosecutor can also abandon his. This avoids unnecessary back-and-forth and allows faster enforcement of the first instance decision (e.g. eviction or payment of damages).

For a tenant being prosecuted, it is one less Sword of Damocles: if the prosecutor withdrew after your withdrawal, you will not have to fear the prosecution maintaining its appeal. But beware: if you do not withdraw, the prosecution may maintain its appeal.

For a co-owner involved in a criminal dispute (e.g. abnormal neighbourhood disturbance), this decision speeds up the procedure. Example: in Mont-Saint-Aignan, a co-owner appeals a conviction for noise nuisance. The prosecutor also appeals. The co-owner changes his mind and withdraws. The prosecutor can then withdraw and the case is closed. Without this decision, the prosecutor might have had to maintain his appeal, leading to a useless hearing.

If you are in this situation, you should know that the prosecution's withdrawal is a discretionary act (the prosecutor is not obliged to do it). But in practice, if the defendant withdraws, the prosecution usually follows suit.

Four tips to avoid this type of dispute

• Keep all procedural documents: if you are a civil party, keep copies of the appeal and withdrawal documents. This will allow you to check whether the prosecution has indeed withdrawn.
• Do not delay in withdrawing: if you change your mind, do so quickly by declaration to the court registry. A late withdrawal may be refused.
• Ask your lawyer about the advisability of an appeal: before appealing, weigh the chances of success. A useless appeal can be withdrawn, but it lengthens the delays.
• Check the competence of the prosecution: if you are in the Rouen jurisdiction, address the public prosecutor of Rouen. On appeal, it is the Advocate General of Rouen who follows the case. This decision recalls that the first instance prosecution remains competent to withdraw.

Further reading: related case law and developments

This decision is part of a line of Court of Cassation decisions favourable to a flexible interpretation of Article 500-1. One can cite an earlier judgment of 8 February 2005 (No. 04-85.123) which already admitted the withdrawal of the Advocate General after the defendant's withdrawal. The 2006 decision extends this faculty to the first instance prosecution.

The trend is therefore towards procedural simplification: avoiding appeals maintained without purpose. This means that, for property disputes, the courts favour efficiency and speed. In the future, one can expect case law to confirm this orientation, particularly for proceedings where civil parties (such as landlords) seek to obtain compensation quickly.

Summary and next steps

Practical FAQ:

• Can I withdraw my appeal if I am a defendant? Yes, at any time before the hearing. This extinguishes your appeal.
• Can the prosecutor withdraw after my withdrawal? Yes, thanks to this decision, whether it is the public prosecutor or the Advocate General.
• What are the time limits? The withdrawal must be made before the Court of Appeal rules. Once the hearing is held, it is too late.
• What if the prosecution does not withdraw? You can ask the Court of Appeal to find that its appeal has become moot, but this is riskier. Better to consult a lawyer.

Are you 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 →