Notification of Criminal Expert Report: 24 Hours or 2 Working Days? What the Court of Cassation Says

Imagine this: you are the owner of a small building in Saint-Pierre-des-Corps, and a tenant accuses you of neglecting the maintenance of the common parts, causing a leak. A judicial expert report is ordered. You receive a letter informing you that the expert will attend in 24 hours, even though the law says you must be given two working days' notice. Your lawyer, however, was notified fifteen days earlier. Is this valid? This question, which seems technical, goes to the heart of the rights of the defence. The Court of Cassation, in a judgment of 18 June 1985, provides a nuanced but firm answer: the essential point is not always the formal time limit, but the actual ability to prepare one's defence. Let us analyse this decision together.

What happens when the procedure leans one way, but the facts show that everyone was informed? The judges must decide between the letter of the Code and the spirit of justice. This case, decided nearly forty years ago, is still relevant today for property professionals as well as for individuals facing an expert report. And what if a simple failure to notify could invalidate everything? Not so fast.

In this article, we will see that formal strictness is not always required, provided that everyone's rights have been respected in practice. Owners, tenants, co-owners: this decision concerns you if you ever have to face a criminal expert report. So, 24 hours or 2 working days? The answer lies in the balance between procedure and reality.

The Facts: A Story Like Many Others

The case begins in Paris, but could just as easily take place in La Riche or Saint-Pierre-des-Corps. An individual is placed under investigation for serious facts: he is suspected of having committed violence against a minor over whom he had authority. The procedure follows its course, and an expert report is ordered to establish the facts. Normally, according to Article 118 of the Code of Criminal Procedure (the text setting out the rules of the investigation), the case file must be made available to defence lawyers two working days before each notification of an expert report. But in this case, the notification records show that the file was made available only 24 hours beforehand. A difference that might seem trivial, but which, in law, can be fatal.

Yet the accused's lawyers had been notified by registered letters fifteen days before each appearance. And each time, one of the lawyers was present or represented, without ever asking that the breach of the two-day time limit be recorded. Does the trap close on the prosecution? No. The defence, believing that its rights had been violated, lodged an appeal in cassation after the Indictment Division of the Paris Court of Appeal referred the accused to the Assize Court. The issue? To have the entire procedure annulled for a procedural defect.

Imagine the scenario: a property owner in Saint-Pierre-des-Corps, implicated in a case of damage, sees his case examined without having had time to prepare his defence. But here, time was available, even if the official stamp said otherwise. The debate concerns the hierarchy between form and substance: does a simple delay in notification justify the annulment of the entire procedure? The judges had to decide.

The Court's Reasoning — Analysed

The Court of Cassation, in its judgment of 18 June 1985, dismisses the appeal. Its reasoning is a model of legal pragmatism. It starts from the principle that Article 118 of the Code of Criminal Procedure does require that the case file be made available to defence counsel two working days before each notification. But it adds an implicit condition: the purpose of this time limit is to guarantee the rights of the defence, i.e., to allow lawyers to prepare their arguments calmly. If this purpose is achieved by other means, the formal failure to comply with the time limit may be excused.

In this case, the lawyers had been notified fifteen days before each deadline by registered letters. They therefore had ample time to consult the file and prepare the defence. Moreover, they were present or represented at each appearance, and had raised no objection regarding the time limit. For the Court, this conduct amounts to a tacit waiver of the right to rely on the irregularity. In other words, if you do not challenge a defect at the time it occurs, you cannot do so later.

This decision does not create a new right, but it recalls a fundamental principle: the purpose of the rule prevails over its letter. Judges are not robots: they check whether, in practice, the defence has been prejudiced. Here, it was not. This is a confirmation of previous case law: procedural nullities are not automatic; they require actual prejudice. For owners or tenants who might face a judicial expert report, this means that it is not enough to point out a formal defect to annul everything. You must also show that this defect prevented you from defending yourself.

What This Changes for You — Practical Implications

So, what should you remember if you are an owner or property professional? First, if a criminal expert report is ordered in your building — for example, for dangerous works or a breach of the co-ownership rules — the notification time limits are not an empty formality. But if your lawyer receives a letter 15 days in advance, even if the official notification is only 24 hours, the procedure will be valid. Example: in La Riche, a landlord is prosecuted for leaving a dwelling in an insanitary condition. The expert report is scheduled, but the bailiff only delivers the notice 24 hours before. If the landlord's lawyer was informed two weeks earlier and attends without objecting, the defect is cured.

For tenants, the same logic applies: if you are implicated in proceedings for damage, check when your lawyer was notified. Do not focus on the official time limit if, in practice, you had time to prepare your defence. However, if you were only notified at the last minute and your lawyer was absent, then you can invoke a violation of the rights of the defence.

Co-owners, for their part, are often faced with expert reports for construction defects. Imagine a co-ownership in La Riche: a disorder is discovered, a criminal expert report is ordered against the managing agent. If the managing agent only informs the co-owners 24 hours before, but their lawyer was notified 15 days earlier, the procedure stands. The real danger is not reacting immediately: if you attend the expert meeting without saying anything, you lose the right to challenge the time limit later.

Four Tips to Avoid This Type of Dispute

• Never tacitly waive a procedural defect: as soon as you notice an abnormal time limit (e.g., notification less than two working days before an expert report), immediately ask your lawyer to have the irregularity recorded by formal record, before the start of the operations. Silence counts as acceptance.
• Require a copy of all correspondence sent to your lawyer: if you are implicated, ensure that your lawyer receives notifications within the legal time limits. Keep proof of receipt (acknowledgements of receipt, emails).
• Anticipate expert reports: if you are a landlord, keep an up-to-date file with all diagnoses and contracts. In the event of proceedings, this will allow your lawyer to prepare the defence quickly, even if the time limits are tight.
• Consult a lawyer as soon as you receive the first notification: do not delay. As soon as you receive a letter concerning an expert report, seek advice. A lawyer can check the time limits and, if necessary, raise a nullity before it is too late.

Further Reading: Related Case Law and Developments

This 1985 decision is part of a consistent line of the Court of Cassation: the protection of the rights of the defence is real, but it is not a pretext to annul procedures without prejudice. This logic is found in more recent decisions. For example, the Criminal Chamber held in 2010 (No. 09-86.216) that the failure to comply with the 5-day time limit for consulting the file before a hearing does not justify a nullity if the lawyer had access to the file by other means and suffered no prejudice. The trend is therefore clear: judges prioritise the effectiveness of rights over formalism.

For the future, this case law could evolve with the digitalisation of procedures. Electronic notifications (via RPVA) impose precise time limits, but the same logic applies: if the lawyer had the file in good time, the failure of formal notification will not be sanctioned. However, if new technologies create inequalities in access (e.g., a lawyer without the necessary equipment), the defence might be able to rely on this more effectively. In the meantime, remember that a 24-hour notification is not automatically invalid if the defence was informed well in advance.

Frequently Asked Questions

• What is the legal time limit for notifying a criminal expert report? Article 118 of the Code of Criminal Procedure provides that the case file must be made available to lawyers two working days before each notification of an expert report. However, the Court of Cassation admits exceptions if the lawyer was notified earlier by other means.
• What should I do if I receive a notification of an expert report less than two working days before? Contact your lawyer immediately. They can request an adjournment or have the irregularity recorded before the start of the expert report. If you say nothing, you risk losing this ground for nullity.
• Can I annul an expert report if my lawyer did not have time to prepare my defence? Yes, if you demonstrate actual prejudice. For example, if you were unable to present your observations or produce documents. However, the mere failure to comply with the time limit is not sufficient if your lawyer was present and did not object.
• Does this decision apply to civil expert reports? No, it concerns strictly criminal procedure. In civil matters (e.g., expert report for a construction defect), the time limits are governed by the Code of Civil Procedure, which imposes different rules. However, the logic of prejudice remains similar.
• How long do I have to challenge an irregular notification? In practice, you must act before the end of the expert operations. After that, it will be too late. If you are in doubt, do not wait: contact your lawyer.

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