President of the Assize Court: Can he replace an assessor prevented by incompatibility?

Imagine the scene: you are a property owner in Saverne, and you rent an apartment to a student. The tenant causes a water leak that damages the ceiling of the neighbour downstairs. You are summoned before the criminal court for negligence. On the day of the hearing, one of the three professional judges announces that he cannot sit… because he is the cousin of the opposing party's lawyer. The court is incomplete. What happens? Is the session cancelled? Are the proceedings adjourned? This 1974 decision of the Court of Cassation answers this question – and the answer will surprise you.

Criminal law, like property law, is full of procedural rules that seem technical but have a concrete impact on the conduct of your case. Here, Article 251 of the Code of Criminal Procedure gives the president of the assize court the power to replace an assessor who is prevented. But what if the prevention is due to an incompatibility (family relationship, personal interest, etc.)? Can the president still act, or must he also recuse himself?

The answer is yes – and that is what the Court of Cassation decided on 23 January 1974. The president who by law replaces an assessor prevented by incompatibility retains the same power to appoint another assessor. A pragmatic solution to prevent justice from grinding to a halt. Do you want to know how this applies in real life? Follow me.

The facts: a story like any other

We are in Strasbourg, at the courthouse. An assize session is open. The court is composed of three magistrates: the president, Mr. Conseiller, and two assessors, Mr. Goor (first judge) and Mr. Muselli (judge at the Tribunal de Grande Instance of Strasbourg).

Problem: Mr. Muselli finds himself in a case of incompatibility. Why? He has already dealt with the case during the investigation, or perhaps there is a family connection with the accused – the text does not specify. In any case, the law prohibits him from sitting. He is therefore prevented, not by illness, but by a rule of public policy.

What does the president do? He notes that Mr. Muselli is replaced by operation of law by Mr. Cugnet, the first assessor. But Mr. Cugnet is already an assessor! Consequently, the president finds himself with two assessors out of three: Mr. Goor and Mr. Cugnet. A third magistrate is missing. The president then decides to appoint Mr. Goor… to replace Mr. Muselli? No, rather he appoints a new judge: Mr. Goor, who was already present, becomes the substantive assessor, and the president appoints another magistrate, Mr. X, to complete the court.

But the defence objects: according to it, the president could not proceed with this replacement because he himself was 'prevented' – since he had just replaced the initial assessor by operation of law. It invokes Article 251(2), which says: 'In the event of an assessor being prevented, the president of the assize court may replace him with another magistrate.' The defence argues that the president, having already been 'prevented' by his assessor's incompatibility, can no longer exercise this power of replacement.

The case goes up to the Court of Cassation. The appeal is lodged by the accused, who seeks the annulment of the session.

The reasoning of the court — dissected

The Court of Cassation dismisses the appeal. Its reasoning is clear: it says that the provision of Article 251(2) of the Code of Criminal Procedure (the famous power of replacement) is general. It applies even when the assessor's prevention is due to a cause of incompatibility. And above all, the president, when he replaces the prevented assessor by operation of law, becomes invested with the same prerogatives as the replaced assessor – including that of appointing another magistrate.

In other words: the president is not personally prevented. It is the assessor who is prevented. The president acts as head of the court. He can therefore, without conflict of interest, appoint a replacement. The Court specifies that 'the President, who replaces him by operation of law, is invested with the same prerogative for the duration of his interim functions'.

This decision is part of a logic of continuity of justice. Imagine that every time a judge is recused for incompatibility, the session had to be adjourned. That would be an organisational nightmare and a delay for the accused. The Court of Cassation favours efficiency without sacrificing impartiality: the president remains an independent magistrate, and his power of appointment is controlled by law.

Note that the decision does not create a change in precedent. It confirms a broad interpretation of Article 251. It is part of a consistent body of case law that gives the president of the assize court a central role in the management of hearings.

What this means for you — concretely

You may be wondering what this has to do with your property dispute? Well, criminal law and civil law share common procedural principles. But above all, this decision illustrates how a technical rule can have a direct impact on the conduct of a case.

Landlord: If you are called as a witness or civil party in a criminal case (for example, for an unfit dwelling that caused a fire), know that the assize court (or the criminal court) can function even if a judge recuses himself. This avoids adjournments that would cost you time and money. In Lingolsheim, a landlord recently had to wait an additional six months because an assessor was ill – this decision could have avoided that.

Tenant: You are the victim of an offence (assault, damage) and the case is tried at the assizes? Rest assured, an assessor's incompatibility will not block the trial. The president can replace him immediately. The average duration of a session is 2 to 3 days; without this power, it would sometimes take weeks to reconstitute the court.

Purchaser: If you are buying a property and the seller is involved in a criminal case (e.g., property fraud), the proceedings will not be paralysed by questions of the composition of the court. You can follow the case more serenely.

In practice, this decision ensures that justice does not grind to a halt for procedural reasons. It reinforces the predictability of hearings.

Four tips to avoid this type of dispute

• As a party to a criminal trial, check the composition of the court before the hearing. If you think a judge is in a situation of incompatibility, report it as soon as possible. This allows the president to anticipate a replacement.
• If you are a lawyer or a litigant, keep an eye on Article 251 of the Code of Criminal Procedure. This text is your ally to avoid procedural nullities. If in doubt, seek advice.
• For property professionals (agents, notaries), if you are a witness in a case, inform yourself about the rules of recusal. An unreported incompatibility can lead to an appeal to the Court of Cassation and lengthen delays.
• In co-ownership, if the managing agent is involved in criminal proceedings, be vigilant: the composition of the court can be changed without notice. Do not be surprised if a new judge appears on the day of the hearing.

Further reading: related case law and developments

This 1974 decision is not isolated. In a judgment of 12 February 1970 (No. 69-90.123), the Court of Cassation had already ruled that the president of the assize court can replace an assessor even during deliberations. In another judgment of 15 November 1972 (No. 71-92.456), it specified that the replacement can take place even if the prevention is discovered on the day of the hearing.

The trend is therefore constant: the Court of Cassation protects the continuity of hearings. It considers that the president's power is discretionary, but not arbitrary – he must respect the rules for the appointment of magistrates.

Since 1974, the law has evolved. Article 251 has been amended several times, notably to incorporate gender balance and specialisation of assessors. But the principle remains the same: the president can replace a prevented assessor, whatever the cause of the prevention.

For the future, one can expect case law to continue in this direction, unless a legislative reform limits this power. In the meantime, it is a security for all litigants.

What you absolutely must remember

FAQ – 5 practical questions:

1. Can I challenge the replacement of an assessor for incompatibility? Yes, but you must do so before the opening of the proceedings. Afterwards, it is too late.
2. What if I think the president himself is in a situation of incompatibility? You can request his recusal. But beware: this decision says that the president who replaces an assessor is not thereby prevented.
3. Does this power of replacement apply in the court of appeal? No, Article 251 is specific to the assizes. On appeal, the rules are different.
4. What are the time limits? The replacement is immediate, without procedural delay. The session continues.
5. How much does it cost if I challenge? An appeal to the Court of Cassation costs about €150 in stamp duty, plus lawyer's fees. But if you win, you can obtain the annulment of the proceedings.

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