Illegal Eviction: When the Criminal Court May Refuse to Apply a Prefectoral Order

Imagine: you are the owner of a beautiful flat in Argelès-sur-Mer, let to a long-standing tenant. One day, the prefecture issues an eviction order on grounds of absolute urgency — for example, risks of collapse. Your tenant does not leave the premises. You bring criminal proceedings against them for breach of the order. But can the criminal judge refuse to convict them if they consider the order illegal? This is precisely the question that the Court of Cassation decided in this ruling of 21 October 1987. And the answer is clear: yes, the criminal judge has a duty to verify the legality of the administrative act before imposing a penalty. In other words, you cannot rely on a questionable prefectoral order to obtain your tenant's eviction through criminal proceedings.

The Facts: A Story That Happens Every Day

Mr Étienne, owner of a building in Collioure, faces a tenant who refuses to leave. The town hall, alerted by safety issues, requests a prefectoral eviction order based on absolute urgency. The order is issued. The tenant stays. Mr Étienne files a complaint for breach of the order, exposing the tenant to a criminal fine. The criminal court acquits the tenant, ruling that the eviction order was illegal — in particular because urgency was not demonstrated. The public prosecutor and the owner appeal. The Court of Appeal upholds the acquittal, reasoning that the order was tainted by illegality. Mr Étienne appeals to the Court of Cassation, arguing that the criminal court cannot assess the validity of an individual administrative act. The Court of Cassation dismisses the appeal: the criminal court must verify the legality of the administrative act whose breach is prosecuted.

The Reasoning of the Court — Analysed

The high court recalls a fundamental principle: when an administrative act (prefectoral order, planning permission, etc.) carries a criminal penalty, the judicial court has a duty to verify the legality of that act, both in form and substance. In other words, it cannot apply the penalty blindly. In this case, the Court of Appeal had noted that the eviction order did not justify absolute urgency, an essential condition. Consequently, the order was illegal, and the tenant could not be punished for failing to comply with it. This reasoning is based on the principle of legality of offences and penalties (Article 111-3 of the Criminal Code: no one may be punished except for an offence defined by law). But also on the separation of powers: the criminal court does not substitute itself for the administration, but must ensure that the act complies with the law. However, this review is not systematic for all administrative acts. The decision specifies that this is a general rule, but there are exceptions (for example, for regulatory acts issued by the government in matters of police powers).

What This Changes for You — In Practice

For landlord owners, this decision is a warning: you cannot rely on a poorly drafted prefectoral order to evict a tenant through criminal proceedings. If the order is annulled or declared illegal, the criminal prosecution collapses. Concrete example: in Collioure, if the prefecture issues an eviction order for imminent danger without properly inspecting the building, the tenant who stays may be acquitted. You would then have to go through a civil eviction procedure, which is longer and costlier. For tenants, this is a protection: the criminal court can examine whether the order is justified. In practice, if you receive an eviction order, do not leave without consulting a lawyer: the act may be illegal. For property professionals (agents, syndics), this means you must be extremely cautious before invoking a prefectoral order to justify an eviction.

Four Tips to Avoid This Type of Dispute

• Check the legality of any prefectoral order: before starting an eviction procedure based on it, ask a lawyer to verify its reasoning and regularity.
• Prefer the civil route: in a tenancy dispute, the civil procedure (termination of lease, notice to pay) is more reliable than the criminal route backed by an order.
• Document the urgency: if you seek an order for danger, put together a solid file with expert reports, photos, and witness statements.
• Inform your tenant of their rights: in case of an eviction order, advise them to consult a lawyer to challenge the act before the administrative court.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Reading: Related Case Law and Developments

This 1987 decision is part of a consistent line of authority. As early as 1985, the Court of Cassation had held that the criminal court could disregard an illegal administrative act (Crim. 14 January 1985). More recently, case law has evolved towards a broader review: the criminal court may even disregard an illegal regulation (CE, 2007, Société Tropic Travaux Signalisation). However, for individual acts such as eviction orders, the review remains limited to external legality (competence, form) and internal legality (grounds). The trend is therefore towards a strengthening of the criminal court's control over administrative acts, which safeguards litigants but complicates matters for owners who were hoping for a swift procedure.

Key Points to Remember

FAQ:

1. Can I be criminally convicted for failing to comply with an illegal eviction order? No, if the order is illegal, the criminal court must acquit you.
2. As an owner, what should I do if my tenant refuses to leave despite an order? First check the legality of the order with a lawyer. If it is valid, file a complaint. Otherwise, start civil proceedings.
3. What are the time limits to challenge an eviction order? You have 2 months to apply to the administrative court for an interim suspension (urgency) or on the merits.
4. Does this decision apply to danger orders? Yes, the same principle applies: the criminal court reviews the legality of the danger order before imposing a penalty.
5. Can I be evicted without a prefectoral order? Yes, by a civil court decision (judicial court) after termination of the lease.

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