Limitation of Criminal Proceedings: The Trap for Civil Parties Who Wait

Imagine the scene: you own a car garage in Fleury-les-Aubrais. One day, you discover that your neighbour has built an extension encroaching onto your land. You file a complaint. The public prosecutor drops the case. What do you do? Wait for justice to move? Grave mistake. Because if the public prosecutor remains inactive, it is up to you, as a civil party, to bring the matter to trial. Otherwise, time works against you: the criminal action becomes time-barred, and you lose all right to compensation.

This question, how many owners, tenants or professionals ask themselves too late? The French Court of Cassation answered it clearly in a judgment of 10 November 1999, between two Lyon garage companies and the public prosecutor. But this decision applies to any litigant, wherever they are, from Gien to Orléans.

In short: if you are a victim of an offence and the prosecutor does not initiate proceedings, you must yourself summon the defendant to appear before the court, failing which the limitation of criminal proceedings extinguishes any possibility of criminal conviction and compensation. A procedural lesson that can be costly.

The Facts: A Story Like Many Others

It all begins in the Lyon urban area, where two companies, Garage de Lyon and Brege Garage de Lyon, run car repair businesses. A conflict arises with a third party – the precise details of the offence matter less than what follows. The companies consider themselves victims and file a complaint with a civil party application. The public prosecutor, i.e. the State Prosecutor, is seized. But instead of initiating proceedings, he remains passive. No direct summons (the act by which a person is summoned to court) is served on the defendant.

Months pass. The companies, perhaps thinking that the prosecutor will eventually act, do nothing either. However, the limitation period for criminal proceedings (the period after which prosecution is no longer possible) is running. For minor offences, it is one year; for misdemeanours, three years (now six years, but at the time three). Once this period has elapsed without any act of prosecution or investigation, the action is extinguished.

That is exactly what happens. The criminal court finds that the limitation has accrued (definitively completed) and declares the criminal action extinguished. The companies are therefore dismissed (their claims rejected): they obtain neither a conviction of the defendant nor damages. They appeal. The Court of Appeal orders further investigation (additional inquiry ordered by the judge). But the Court of Cassation quashes (annuls) this judgment: since the limitation had accrued, no further investigation can revive it. The claims for damages are dismissed.

The Court's Reasoning — Dissected

The Court of Cassation relies on a fundamental principle: in case of inaction by the public prosecutor, the civil party has its own right to directly summon the defendant to the hearing. This right is provided for in Articles 418 and following of the Code of Criminal Procedure. In other words, it is not just a possibility, it is a duty (obligation) if the civil party wants to interrupt the limitation period.

The reasoning is inexorable: the limitation of criminal proceedings can only be suspended (paused) by acts of prosecution or investigation. However, the inaction of the public prosecutor is not an act of prosecution. If the civil party remains passive, the limitation continues to run. And once the period has elapsed, it is too late. The judges remind that the civil party cannot invoke an alleged suspension to justify its inaction. In clear terms, it is not because the prosecutor does nothing that the period stops.

This decision confirms consistent case law: the civil party must be vigilant. It cannot rely on the public prosecutor. What few people know is that the direct summons by the civil party is a simple act: it can be done by a lawyer or a bailiff, and costs a few hundred euros. But its absence can cost thousands of euros in lost compensation.

The Court of Cassation does not create new law; it recalls an existing rule. But its scope is crucial: it penalises the negligence of civil parties who, believing that the prosecutor will do the work, allow the deadlines to pass. In other words, the case law is clear: if you want compensation, do not count on the State to serve it on a plate.

What This Means for You — Concretely

For a landlord owner in Fleury-les-Aubrais, imagine that your tenant deliberately damages your flat (deliberate damage is a misdemeanour). You file a complaint. The prosecutor drops the case. If you do not act, after three years (the limitation period for misdemeanours at the time, six years today), you will no longer be able to criminally prosecute your tenant. And without a criminal conviction, obtaining damages in civil proceedings will be more difficult.

For a buyer in Gien, if the seller has hidden a latent defect (a serious defect making the property unfit for use) and this constitutes fraud (a misdemeanour), the same applies: if the prosecutor does not act, you must summon the seller before the criminal court. Otherwise, the limitation extinguishes the criminal action, and you lose your criminal remedy.

For a co-owner, if the managing agent commits a breach of trust (misappropriation of funds), you must act quickly. undefined, I have encountered cases where co-owners waited too long, thinking that the prosecutor would eventually investigate. Result: limitation accrued, no conviction, and the managing agent kept the funds.

For real estate professionals (agents, developers), the advice is the same: if you are a victim of an offence (forgery, use of forgery, fraud), do not count on the passivity of the prosecutor. Summon the defendant yourself. The bailiff's costs for a direct summons are negligible compared to the stakes.

Be careful, however: a direct summons is only possible if the offence is sufficiently characterised and if you have evidence. A lawyer will help you assess the feasibility.

Four Tips to Avoid This Type of Litigation

• Never wait for the public prosecutor: As soon as you file a complaint, ask your lawyer to assess the risk of limitation. If the prosecutor does not act within 6 months, consider a direct summons.
• Keep all evidence and dates: Note the date of the complaint, any investigative acts, and especially the applicable limitation period (1 year for minor offences, 6 years for misdemeanours, 20 years for felonies).
• Inquire at the court registry: If you want to know whether the prosecutor has initiated proceedings, you can ask the criminal registry. This allows you to know whether you need to act.
• Consult a lawyer from the outset: Criminal procedure is complex. A lawyer specialising in property law or business criminal law can advise you on strategy (direct summons, civil party application, etc.). The fees are often less than what you would lose in case of limitation.

Further Reading: Related Case Law and Developments

This 1999 decision is part of a consistent line of authority. For example, the Court of Cassation had already held in 1995 (Crim., 28 June 1995, No. 94-83.145) that the civil party cannot rely on the prosecutor's inaction to justify a lack of diligence. More recently, the Criminal Chamber recalled in 2018 (No. 17-85.236) that a direct summons by the civil party is an act that interrupts the limitation period, even if the public prosecutor remains passive.

The trend is therefore constant: judges are demanding of civil parties. They consider that the right to summon is a weapon placed at their disposal, and they must use it. This means that, for the future, the courts will show no leniency if you let the deadline pass. The 2017 reform of criminal limitation (Law of 27 February 2017) extended the periods (from 3 to 6 years for misdemeanours), which gives more time, but does not change the principle: it is up to you to act.

What You Absolutely Must Remember

FAQ:

1. What is the limitation of criminal proceedings? It is the period after which an offence can no longer be prosecuted criminally. For misdemeanours, it is 6 years (since 2017).
2. Can I directly summon the defendant without a lawyer? Technically yes, but not recommended: the direct summons must comply with precise formalities (Article 551 of the Code of Criminal Procedure). A lawyer will avoid nullities.
3. How much does a direct summons cost? Count between €150 and €300 for the bailiff, plus lawyer's fees (variable). This is much less than the potential damages.
4. What if the prosecutor drops my complaint? You can file a complaint with a civil party application before the dean of investigating judges, which triggers an investigation. Or directly summon the defendant to the criminal court.
5. What if I am a tenant and my landlord commits an offence? Same principle: if you are a victim (for example, non-compliance with the rental permit), you must act yourself if the prosecutor does nothing.

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 →