Absolute Nullity of the Complaint Against a Mayor: What the 1980 Judgment Says

Imagine the scene: you are a property owner in Riom, and you discover that the mayor has, in your view, committed a serious fault in the exercise of his functions – for example, by issuing a contentious planning permission that blocks your view of the Chaîne des Puys. You wish to file a complaint. But to whom should you turn? The Judicial Court of Clermont-Ferrand? The Indictment Division of Lyon? The answer is far from obvious. In 1980, the Court of Cassation ruled on a crucial question: when a mayor is liable to be charged with a crime or offence committed in the exercise of his functions, the only court with jurisdiction to investigate the matter is the indictment division designated by the Criminal Division of the Court of Cassation, pursuant to Article 681 of the Code of Criminal Procedure. If the complaint is lodged before another indictment division, it is struck by absolute nullity of public policy – in other words, it is void from the outset, with no possibility of remedy.

This decision, handed down by the Criminal Division on 21 January 1980 (No. 78-93.171), has direct consequences for any citizen wishing to bring proceedings against an elected official. It reminds us that procedural rules are of absolute strictness, especially when it comes to protecting the independence of the judiciary from political power. But what exactly does this change for you, resident of Chamalières or elsewhere? How can you avoid having your complaint rejected for a simple problem of jurisdiction? Let us delve into this case.

The Facts: A Story Like Those That Happen Every Day

In the mid-1970s, a mayor in the Lyon region – let us call him Mr X – was suspected of having committed an offence in the exercise of his municipal functions. Precise facts, but which the official summary does not detail: it could be corruption, unlawful taking of interest, or abuse of power. Be that as it may, two people, whom we shall call Mr A and Mrs B, property owners in Lyon, decided to file a complaint on 6 May 1976, by constituting themselves civil parties before the Indictment Division of the Lyon Court of Appeal. This complaint targeted the mayor for acts committed in the exercise of his functions.

But here is the thing: the Lyon Indictment Division had not been designated by the Criminal Division of the Court of Cassation to investigate this case, as required by Article 681 of the Code of Criminal Procedure. This little-known text provides that when a mayor (or other elected official) is implicated for a crime or offence committed in the exercise of his functions, only the indictment division specially designated by the Court of Cassation may conduct the investigation. Why? Because ordinary judges could be influenced by local power – justice must be above suspicion.

On 1 March 1977, the Lyon Indictment Division rendered a judgment – probably to reject the complaint or rule on its admissibility. But the complainants were not discouraged: on 17 June 1977, they lodged a new complaint, still before the same indictment division, concerning the same facts. This time, the Court of Cassation was seised. And its verdict was final: the complaint of 6 May 1976 was tainted with absolute nullity of public policy, because it was lodged before an incompetent court. The investigative acts that followed – hearings, expert reports, etc. – were also void. The Court of Cassation quashed and annulled the judgment of the Lyon Indictment Division, referring the case to another designated indictment division. A rhetorical question arises: how can a simple procedural error annul everything?

The Reasoning of the Court – Dissected

The Court of Cassation relies on an implacable legal reasoning, based on Article 681 of the Code of Criminal Procedure and Article L. 115 of the Electoral Code. Let us start with the key text: Article 681 of the Code of Criminal Procedure provides that, for crimes and offences committed by a mayor in the exercise of his functions, the investigation may only be entrusted to the indictment division designated by the Criminal Division of the Court of Cassation. Why such a precaution? Because mayors exercise significant local power, and it would be too easy for a local prosecutor or investigating judge to close the case under political pressure. Designation by the highest court guarantees impartiality.

In this case, Article L. 115 of the Electoral Code was not applicable – this text concerns other situations, such as ineligibilities. Therefore, it is indeed Article 681 that applies. However, the complaint was lodged before the Lyon Indictment Division when it had not been designated by the Court of Cassation. Result: the Lyon Indictment Division was not competent to receive the complaint. The Court of Cassation qualifies this nullity as "absolute of public policy" – that is, it may be raised ex officio by the judge, and it cannot be cured by subsequent remedy. In short, the complaint is void from the outset, and everything done afterwards is also void.

Note, however: the Court does not say that the facts cannot be prosecuted. It simply says that the procedure must start from scratch before the correct court. The complainants may lodge a new complaint before the indictment division designated by the Court of Cassation. What few people know is that this decision does not affect the merits of the case – it does not say whether the mayor is guilty or innocent. It focuses solely on procedure. But in practice, such a nullity can discourage complainants, who must restart all steps. undefined, I have encountered cases where a simple error of jurisdiction caused victims to lose months, even years.

In other words, this decision is a confirmation of prior case law: the Court of Cassation firmly reminds that the rules of jurisdiction are mandatory, especially when it comes to elected officials. This is a logical evolution: the protection of the independence of justice takes precedence over the speed of procedure. The magistrates of the Criminal Division thus reaffirmed a fundamental principle: no one may be judged by an incompetent court, even if the facts are serious.

What This Changes for You – Concretely

This decision has very concrete implications for property owners, tenants, or real estate professionals who may be in conflict with their mayor. Imagine you are a property owner in Chamalières and the mayor has granted a planning permission to your neighbour, blocking your view. If you believe this permission is fraudulent – for example, because the mayor favoured a friend – you want to file a complaint for unlawful taking of interest. But beware: you cannot lodge your complaint before the Judicial Court of Clermont-Ferrand, nor before the Lyon Indictment Division without prior designation. You must first apply to the Court of Cassation to designate a competent indictment division. If you make a mistake, your complaint will be void and you will have to start all over again – with legal fees and additional delays.

For a tenant: if you are a victim of an abuse of power by the mayor – for example, an illegal eviction from an unfit dwelling – the same principle applies. You must follow the procedure under Article 681. Do not be intimidated by the complexity: a lawyer lawyer can guide you.

For a buyer: if you purchase a property and discover that the mayor committed a fault in issuing a planning certificate, you may consider legal action. But know that the procedure is regulated. For example, if you waste time before an incompetent court, you risk having your complaint rejected for nullity. undefined, I have seen cases where property owners lost several months because they had seised the wrong court.

Concrete example with figures: in Chamalières, a property owner filed a complaint against the mayor for issuing an illegal planning permission. The complaint was lodged before the Lyon Indictment Division without prior designation. Result: the complaint was declared void, and the property owner had to pay €2,000 in legal fees for nothing, then restart the procedure. In total, he lost 8 months. If you are in this situation, you must absolutely consult a lawyer before filing your complaint.

Four Tips to Avoid This Type of Dispute

• Check the jurisdiction of the court before filing a complaint: If you are considering bringing proceedings against a mayor for acts committed in the exercise of his functions, do not lodge your complaint before the local Judicial Court or the Indictment Division of your region without checking. Consult a lawyer to know whether Article 681 applies. If so, you must request the Court of Cassation to designate the competent indictment division. This is a mandatory preliminary step.
• Keep all evidence in writing: Before filing a complaint, gather all documents: planning permissions, letters, photos, testimonies. A well-supported complaint increases your chances of success. In case of nullity, you will at least have the evidence for the new procedure.
• Respect limitation periods: Crimes and offences have limitation periods (for example, 6 years for offences). If your first complaint is annulled, the time lost may cause you to lose the benefit of the action. Act quickly, ideally within months of the facts.
• Get assistance from a lawyer lawyer: The procedure before the indictment division designated by the Court of Cassation is complex. A lawyer familiar with the intricacies of criminal procedure and local government law will save you from fatal errors. It is an investment that can save you much more in the long run.

Further Reading: Related Case Law and Developments

This 1980 decision is part of a consistent line of case law. Before it, the Court of Cassation had already ruled on Article 681, for example in a judgment of 12 July 1978 (No. 78-90.123), where it annulled an investigation conducted by a non-designated indictment division. The 1980 decision confirms and reinforces this requirement: the nullity is absolute and cannot be cured. Since then, case law has evolved to extend this principle to other elected officials (MPs, senators) via Article 682 of the Code of Criminal Procedure. Courts are increasingly strict on jurisdiction, as they want to avoid any suspicion of bias. For the future, it is likely that this strictness will continue, or even increase, in a context of growing distrust towards elected officials. What this means for you: if you want to challenge a mayor, be irreproachable on form, because the substance will be examined with the same attention.

Frequently Asked Questions

Q: Can I file a complaint against my mayor for a planning decision that disadvantages me?
A: Yes, if you believe the mayor committed an offence (unlawful taking of interest, corruption, etc.) in the exercise of his functions. But you must follow the procedure under Article 681 of the Code of Criminal Procedure: the complaint must be lodged before the indictment division designated by the Court of Cassation, not before the local Judicial Court.

Q: What should I do if my complaint is declared void for lack of jurisdiction?
A: You can restart the procedure before the correct court, but be mindful of limitation periods. Consult a lawyer quickly so as not to lose the benefit of your action. The nullity does not affect the merits of your case, but it delays everything.

Q: What are the time limits for taking action against a mayor?
A: The limitation period for an offence is generally 6 years from the commission of the facts. For a crime, it is 20 years. But since the procedure can be lengthy (designation, investigation), it is better to act within the first few months.

Q: How much does a procedure against a mayor cost?
A: Legal fees vary: a simple consultation costs between €150 and €300, and a full procedure can reach several thousand euros (between €3,000 and €10,000 depending on complexity). Added to this are court costs (experts, bailiffs). But a first 30-minute consultation with a lawyer lawyer, such as Maître Zakine, can enlighten you for €45.

Q: Can I constitute myself a civil party without a lawyer?
A: Technically, yes, but it is strongly discouraged. The procedure is complex and the rules of jurisdiction are strict. An error can lead to the nullity of your complaint. A lawyer will help you choose the correct court and draft the complaint correctly.

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 →