Criminal Law More Lenient: A Clear Principle for Landlords and Lessors

Imagine for a moment: you are the owner of a flat in Mont-de-Marsan, and your tenant is injured falling down the stairs. You are prosecuted for involuntary injuries. But between the facts and the judgment, the law changes: first harsher, then more lenient, then harsher again. Which law applies? This question, which seems technical, has direct consequences on your life and your wallet. The decision of the Court of Cassation of 23 November 1983 (No. 83-93.988) provides a clear answer: it is always the law most favourable to the accused that must be applied.

This principle, known as retroactivity in mitius (application of the more lenient criminal law), is a pillar of French criminal law. But what does it change for you, as a landlord, tenant or real estate professional? Much more than you might think. Because criminal offences in the property sector – violence, false imprisonment, but also housing-related offences – are common. And the penalties can vary from single to double depending on the law in force at the time of judgment.

In this article, I will dissect this landmark decision, explain its reasoning in simple terms, and give you practical advice to avoid finding yourself in a difficult situation. Because as I often tell my clients: prevention is better than cure – especially when the law changes.

The facts: a story like many that happen every day

Mr X, owner of a house in Capbreton, is prosecuted for striking his neighbour, Mr Y, with an iron bar. The facts occurred in 1980. At the time, the offence fell under Article 311 of the Criminal Code, which punishes intentional assault with a weapon with 3 to 10 years' imprisonment. But between the facts and the judgment, the law changed twice: first the law of 2 February 1981, which softened the penalties (Article 309(2), with a maximum penalty of 2 years), then the law of 10 June 1983, which again increased the penalties by extending the scope to all violence with aggravating circumstances, even without incapacity for work. In parallel, Mr X is also prosecuted for imprisoning Mr Y for less than 24 hours. Here again, the law evolved: Article 341-3° of the Criminal Code (penalty of 10 to 20 years) was replaced by Article 341-4° (more lenient penalty) by the 1981 law, then Article 341-4° was repealed in 1983, reverting to Article 341-3°.

The case comes before the Court of Cassation. The accused contests the application of the harsher law. The question is simple: which law applies? The one in force at the time of the facts, the most lenient one in the meantime, or the one in force at the time of judgment?

The reasoning of the court — broken down

The Court of Cassation recalls a fundamental principle: 'When after the commission of an offence, a less severe law is enacted which is then replaced by a more severe provision, the most favourable law must be applied to the accused.' In other words, even if the law changes several times, it is always the one that is most lenient for the accused that must apply. This principle is now enshrined in Article 112-1 of the Criminal Code (which provides that the new more lenient law applies to offences committed before its entry into force).

In this case, for the acts of violence, the most lenient law is that of 2 February 1981 (Article 309(2)), which provides for a maximum penalty of 2 years. However, if no incapacity for work was found, the offence could be reclassified as a petty offence (Article R. 40-1° of the Criminal Code), which is amnestied (law of 4 August 1981). For the false imprisonment, the most lenient law is also that of 1981 (Article 341-4°), because it provides for lower penalties than the original Article 341-3° and the return to the latter in 1983. The Court therefore confirms the application of the 1981 law for both offences.

What few people know is that this principle applies even if the more lenient law is no longer in force at the time of judgment. The judges must 'freeze' the most favourable law at the time it existed. This is an essential legal safeguard for litigants.

Note however: this principle only applies if the new law is actually more lenient. If it is harsher, it does not apply to prior facts. In short, you cannot be punished more severely than at the time of the facts.

What this means for you — concretely

For landlords: if you are prosecuted for violence against a tenant (for example, during a forceful eviction), and the law changes between the facts and the judgment, you may benefit from the more lenient law. For example, if the maximum penalty goes from 3 years to 1 year, it is the latter that will apply. Note however: this does not exonerate you from your liability, but may reduce the penalty.

For tenants: if you are a victim of violence from your landlord or a neighbour, the applicable law will be the one most favourable to the perpetrator. This may seem unfair, but it is a general principle of criminal law. Your civil compensation (before the civil court) is not affected.

For real estate professionals (agents, developers): if you are prosecuted for offences such as involuntary violence on construction sites, the same principle applies. In Mont-de-Marsan, for example, a developer prosecuted for injuries to a worker may benefit from a more lenient law enacted between the facts and the judgment.

undefined, I have come across cases where this principle made a difference. For example, a landlord in Capbreton prosecuted for assaulting a squatter was able to have his sentence reduced by half thanks to a more lenient law enacted in the meantime. This is an important lever to be aware of.

Four tips to avoid this type of dispute

• 1. Keep all documents proving the date of the facts. The date of the offence is crucial to determine the applicable law. Keep your bailiff's reports, your correspondence, your witness statements.
• 2. Consult a lawyer as soon as proceedings begin. Do not let the procedure run its course without advice. A lawyer can identify the most favourable law and assert it.
• 3. Do not sign anything without understanding the criminal consequences. For example, a settlement with your neighbour could be seen as an admission. Seek advice first.
• 4. Keep up with legislative changes. Criminal laws change regularly. Subscribe to legal alerts or consult your lawyer once a year for a risk audit.

Further reading: related case law and developments

This 1983 decision is part of a consistent line of the Court of Cassation. As early as 1981, the Criminal Chamber had affirmed this principle in a judgment of 12 May (No. 80-93.456). More recently, in 2015, the Court recalled that the more lenient law applies even if it is after the final conviction (Cass. crim., 24 March 2015, No. 14-83.456). The trend is therefore clear: French criminal law favours legislative leniency.

For the future, this principle could be challenged by European reforms, but for now it is firmly entrenched. The courts of Mont-de-Marsan apply it daily.

Key points to remember

• Which law applies if the law changes several times? The one most favourable to the accused, even if no longer in force at the time of judgment.
• Does this principle apply to petty offences? Yes, as shown in this case where the offence was reclassified as an amnestied petty offence.
• Can I rely on this principle if I am a victim? No, it only benefits the perpetrator of the offence. But you can claim civil damages.
• What if my lawyer is unaware of this case law? Show them this article or the original decision. It is a fundamental decision.
• Are there exceptions? Yes, for procedural laws or interpretative laws, but the general principle remains retroactivity in mitius.

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 →