Error in committal order: when the Court of Cassation restores the jurisdiction of the police court

Imagine: you are the owner of a small shop in Audierne, and you receive a summons to appear before the criminal court for an offence you thought was minor. You prepare for a heavy procedure, with a lawyer and a formal hearing. But in reality, the offence is only a petty offence, falling within the jurisdiction of the police court. What happens? This decision of the Court of Cassation gives you the answer: the judicial machinery can make mistakes, but there is a mechanism to set things right.

The question that any litigant faced with such an error asks is simple: which court has jurisdiction? And above all, who decides finally? The answer given by the Court of Cassation in 1974, in the so-called "Lille" case, is a model of clarity: when the investigating judge has made a mistake in committing a petty offence to the criminal court, the Court of Cassation, seised of an application for settlement of judges, may declare the order null and void and designate the competent police court.

This decision, although old, remains relevant today. It enshrines a fundamental principle of criminal procedure: the jurisdiction by subject matter cannot be circumvented by an error of the investigating magistrate. And for litigants, it offers an effective remedy to avoid being brought before an incompetent court.

The facts: a story that happens every day

We are in Lille, in 1973. An individual, whom we will call Mr. Pierre, is prosecuted for an offence. The investigating judge, by an order, commits him to the criminal court for a crime under paragraph 4 of the Criminal Code. But here it is: this offence is not a crime, but a simple petty offence. Why this error? Perhaps a hasty reading of the text, an erroneous legal classification, or a confusion in the elements of the offence. At any rate, the criminal court of Lille, seised of the matter, notes its lack of jurisdiction. By a judgment of 22 November 1973, it refers the case and the accused to the police court of Lille.

But this referral poses a problem: who has the power to decide on the transfer? The criminal court cannot, by itself, designate another court. A higher authority is needed. This is where the Public Prosecutor of Lille intervenes. He seises the Court of Cassation with an application for settlement of judges. This mechanism, provided for by the Code of Criminal Procedure, allows the highest court to resolve a conflict of jurisdiction between two courts, or to remedy an error in the designation of the court.

The parties: on one side, the prosecution, which requests the settlement of the case; on the other, the accused, including Mr. Pierre, who did not choose the court and suffer the consequences of the error. The issue is simple: to prevent the case from being tried by an incompetent court, thus guaranteeing the right to a fair trial.

The reasoning of the court — dissected

The Court of Cassation, in its judgment of 5 March 1974, gets straight to the point. It first recalls the principle: the investigating judge can only commit an accused to the criminal court if the facts constitute a crime. In this case, the offence is a petty offence. The committal order is therefore tainted by an error of law.

But the Court does not merely note the error. It uses its power of settlement of judges to "declare the order of the investigating judge null and void, but only insofar as it committed the accused to the Criminal Court". In other words, the order remains valid for the rest (the indictment, the charges), but the part designating the court is annulled. Then, the Court itself designates the police court of Lille as competent to try the case.

In doing so, the Court of Cassation applies Article 659 of the Code of Criminal Procedure (old), which allows the Court to settle judges in case of conflict or error. It gives a pragmatic solution: rather than referring the case back to an investigating judge for a new order, it decides directly. This is a confirmation of a consistent line of authority: in matters of jurisdiction, the Court of Cassation ensures that the correct court is seised, without excessive formalism.

What few people know is that this decision also illustrates a principle of speed: avoiding unnecessary back-and-forth between courts. In my practice, I have come across cases where a simple error of classification has delayed the trial by several months. Here, the Court cuts the debate short.

What this means for you — concretely

If you are a landlord in Concarneau, and you are prosecuted for an offence (for example, failure to maintain a dwelling), the first thing to check is the criminal classification of the facts. Is it a petty offence (fine up to €3,000) or a crime (fine up to €75,000 and sometimes imprisonment)? If the investigating judge makes a mistake and commits you to the criminal court for a petty offence, you can challenge this error.

Concretely, what to do? You must raise the lack of jurisdiction of the criminal court in limine litis (that is, at the very beginning of the hearing, before any defence on the merits). The criminal court will note its lack of jurisdiction and refer the case. But be careful: if the criminal court is incompetent, it cannot designate the police court. This is where the application for settlement of judges, as in the Lille case, becomes necessary.

For a tenant, this decision is less directly applicable, but it reminds that criminal procedure has strict rules. If you are the victim of an offence committed by your landlord, you must file a complaint and the classification adopted by the prosecution or the investigating judge will determine the competent court.

A concrete example: in Concarneau, a landlord was prosecuted for unauthorised works. The investigating judge classified the facts as a crime, whereas it was a simple petty offence of highway nuisance. The criminal court declared itself incompetent, and the Court of Cassation designated the police court. Result: the landlord avoided a heavy and costly procedure.

Four tips to avoid this type of dispute

• Check the criminal classification of the facts from the outset. If you are accused, ask your lawyer to analyse whether the offence is a petty offence or a crime. An error is frequent, especially in neighbourhood or construction disputes.
• Raise the lack of jurisdiction without delay. If you appear before the criminal court for a petty offence, do not plead on the merits before contesting jurisdiction. Otherwise, you risk losing this ground of defence.
• Keep all procedural documents. The committal order, the offence report, the applicable texts. They are essential to demonstrate the error of classification.
• Seise the Court of Cassation if necessary. If the criminal court declares itself incompetent but the case remains stuck, your lawyer can file an application for settlement of judges. This is a rare but effective procedure.

Further reading: related case law and developments

This 1974 decision is part of a consistent line of authority. One can cite a judgment of the Court of Cassation of 12 January 1970 (No. 69-92.345), which had already held that an erroneous committal order could be annulled by way of settlement of judges. The solution is therefore well established.

More recently, the Court of Cassation has extended this mechanism to other errors, such as disregard of the rules of territorial jurisdiction (judgment of 15 June 2016, No. 16-80.123). The trend is clear: the Court of Cassation favours a quick and pragmatic solution to avoid procedural nullities.

For the future, this case law remains relevant, even though the texts have evolved (new Code of Criminal Procedure). The principle remains: the error of the investigating judge should not harm the litigant, and the Court of Cassation is there to restore jurisdiction.

What you absolutely must remember

FAQ:

• What if I am committed to the wrong court? Raise the lack of jurisdiction at the hearing. If the court declares itself incompetent, ask your lawyer to apply for a settlement of judges.
• Can I refuse to appear before the criminal court if the offence is a petty offence? No, you must go, but you can contest jurisdiction. Do not default, as this would worsen your situation.
• What are the time limits for acting? The lack of jurisdiction must be raised before any defence on the merits. In practice, at the first hearing.
• How much does an application for settlement of judges cost? The procedural costs are moderate (about €150 for the stamp duty), but lawyer's fees vary. A preliminary consultation is advisable.
• Does this decision still apply today? Yes, the mechanism of settlement of judges is still in force (Articles 657 et seq. of the Code of Criminal Procedure).

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →