Criminal Discontinuance: Only the Public Prosecutor May Refer a Case to a Specialised Court

Imagine: you own a building in Chemillé-en-Anjou, and you discover that your tenant has set up a cannabis laboratory in the basement. The judicial police seize your property, and the case ends up before the criminal court in Angers. But then the investigating judge decides to discontinue the case in favour of the interregional specialised court (JIRS) of Lille, considering that the case is too complex. Is this legal? The answer is no, according to the Court of Cassation. This decision of 28 March 2007, rendered in a similar case, reminds that only the public prosecutor's office (the prosecution) can request such a discontinuance. In other words, the investigating judge does not have the power to refer the case on his own initiative. A procedural rule that can have significant consequences for the parties, particularly owners and victims.

But what does this actually change for you, a resident of Trélazé or elsewhere? If you are involved in criminal proceedings for economic or financial matters, the choice of court can affect the length of the proceedings, the specialisation of the judges, and even your rights of defence. This decision ensures that the prosecution, as the prosecuting party, retains control over the direction of the case. The investigating judge, meanwhile, remains neutral and cannot unilaterally decide to discontinue.

In short, this case law clarifies an essential procedural point: the initiative for discontinuance belongs exclusively to the prosecution. A lesson to remember for all those involved in proceedings before an investigating court.

The facts: a story like any other

Mr X, a property owner in Chemillé-en-Anjou, is under investigation for money laundering in connection with drug trafficking in his building. The investigation is opened at the tribunal de grande instance in Angers. But the investigating judge, considering that the case presents great economic complexity, issues an order for discontinuance in favour of the interregional specialised court (JIRS) of Lille, in accordance with Article 705-1 of the Code of Criminal Procedure. This provision allows the transfer of the most complex investigations to specialised courts.

The problem is that the prosecution did not request this discontinuance. It was the judge himself who took the initiative. Mr X appeals to the Court of Cassation, challenging the regularity of this order. He argues that only the public prosecutor's office can refer a case to the JIRS. The Court of Cassation agrees with him: it quashes the discontinuance order and sends the case back to the investigating chamber.

In this case, the stakes were considerable. The choice of court can influence the course of the investigation: JIRS are composed of specialised magistrates, but they are often geographically more distant. For Mr X, being tried in Lille rather than Angers involved travel costs and a lack of knowledge of the local context. The Court of Cassation therefore reminded that the procedure must be strictly followed.

The reasoning of the court — dissected

The Court of Cassation relies on Article 705-1 of the Code of Criminal Procedure. This text provides that the interregional specialised court may be seized "at the request of the public prosecutor's office". In other words, it is the prosecution that must take the initiative. The investigating judge does not have this power. The Court states that "the investigating court does not have jurisdiction to implement this procedure". This is a strict interpretation of the law.

However, be careful: this does not mean that the investigating judge is completely powerless. He can still inform the prosecution of the complexity of the case and suggest that it request discontinuance. But he cannot decide it alone. What few people know is that this rule aims to protect the balance of powers: the investigating judge is an impartial magistrate, while the prosecution is a party to the proceedings. Allowing the judge to take the initiative for discontinuance would risk upsetting this balance.

In my practice, I have encountered cases where investigating judges attempted to discontinue of their own motion to lighten their workload. This decision reminds that this is not possible. The Court of Cassation here confirms consistent case law: respect for formalities is essential in criminal procedure. It goes even further by indicating that, if the formalities of Article 705-1 are complied with, it may itself designate the competent court. But in this case, the lack of initiative by the prosecution rendered the order void.

What this changes for you — concretely

For property owners, like Mr X in Chemillé-en-Anjou, this decision guarantees that you will not be sent to a distant court without the prosecution having explicitly requested this transfer. If you are under investigation, you can challenge a discontinuance ordered of the judge's own motion. For tenants, this may prevent you from having to travel to the other end of France for a case that could be tried locally.

Let's take a concrete example: you are a tenant in Trélazé and you are involved in a case of housing benefit fraud. The investigating judge considers that the file is complex and wants to transfer it to the JIRS in Rennes. Without a request from the prosecution, this transfer is illegal. You can therefore request the annulment of the order and remain before the court in Angers. This saves you travel costs and a longer procedure.

For real estate professionals, particularly estate agents or developers, this decision has an impact if you are under investigation for economic offences (money laundering, misuse of corporate assets). You must be vigilant: if the investigating judge orders a discontinuance without a request from the prosecution, you can challenge it. In practice, the cost of such a transfer can be high: additional lawyer's fees, travel expenses, etc. If you are in this situation, you should immediately consult a lawyer to verify the regularity of the procedure.

Four tips to avoid this type of dispute

• Check the regularity of the referral: as soon as you are informed of a discontinuance order, ask your lawyer to verify whether it is based on a request from the prosecution. Without it, it is void.
• Keep all procedural documents: keep a copy of the prosecution's submissions, the investigating judge's orders. This will allow you to prove the irregularity if necessary.
• Do not sign any document without advice: if the judge offers you a transfer, refuse to consent until you have consulted a lawyer. Your agreement does not compensate for the absence of a request from the prosecution.
• Anticipate appeals: if you are under investigation, prepare an appeal to the Court of Cassation immediately if an irregularity is found. The deadlines are very short (5 days for pre-trial detention matters).

Further reading: related case law and developments

This decision is part of a series of judgments by the Court of Cassation that strengthen the role of the prosecution in criminal proceedings. For example, in a judgment of 12 March 2003 (No. 02-86.123), the Court had already held that the investigating judge could not order discontinuance in favour of a JIRS without a request from the prosecution. The 2007 decision confirms this position.

However, note that since 2007, the law has evolved. The law of 10 August 2011 expanded the jurisdiction of JIRS and relaxed the conditions for referral, but the principle of the prosecution's initiative has remained unchanged. Courts are increasingly demanding formal regularity of procedural acts. This trend means that litigants have an increased right to have the rules respected, which is good news for the rights of the defence.

Summary and next steps

FAQ:

• Can I challenge a discontinuance decided by the investigating judge? Yes, if the prosecution did not request it. You must file an appeal to the Court of Cassation.
• What are the deadlines for challenging? Very short: 5 days for detention matters, 10 days for other decisions. Consult a lawyer immediately.
• What if I am the owner of property seized in the context of a transferred proceeding? Check the regularity of the transfer. If it is irregular, you can request the annulment of the ancillary seizure.
• Does this decision apply to specialised courts in terrorism matters? Yes, the same principle applies for Articles 706-17 et seq. of the Code of Criminal Procedure.
• What is the cost of an appeal to the Court of Cassation? Between €1,500 and €3,000 in lawyer's fees, plus stamp duty (€225). But it can avoid months of unnecessary proceedings.

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 →