Partial Revocation of a Suspended Sentence with Probation: A More Severe Law Not Retroactive

Imagine: you are a landlord in Mougins and you rent a flat to a tenant. The latter, convicted for a drug offence, benefits from a suspended sentence with probation. But he reoffends. The sentence enforcement judge can partially revoke this suspended sentence. How far can he go? The law changed in the meantime. This is exactly the question the Constitutional Council had to decide in its decision of 12 December 1995. A question which, behind its apparent technicality, touches on a fundamental principle: the non-retroactivity of more severe criminal laws.

This decision, although nearly thirty years old, remains an absolute reference for all those faced with criminal proceedings, whether landlords, tenants or property professionals. Because it reminds us that the legislature cannot, with a stroke of the pen, worsen your situation for past facts. But what does this actually change for you?

The Constitutional Council was seized of a priority question of constitutionality (QPC) on Article 132-49 of the Criminal Code, which allows the judge to partially revoke a suspended sentence with probation (SME) without any time limit. In short, under the former Article 742-2 of the Code of Criminal Procedure, a partial revocation could not exceed two months. Now, it can last the entire probation period. But can this new rule be applied to a conviction pronounced before its entry into force? No, answered the Council, because it is a more severe law, and therefore not retroactive.

The facts: a story like many that happen every day

Mr X, a landlord in Vallauris, had rented a studio to a young man, Mr Y. The latter had been sentenced in 1993 to 6 months' imprisonment suspended with probation for 2 years for theft. In 1995, he committed a new offence. The sentence enforcement judge (JAP) then decided to partially revoke the suspended sentence for a period of 4 months, applying the new Article 132-49 of the Criminal Code, which came into force on 1 March 1994. However, the facts leading to the initial conviction dated from 1992, well before the new law. Mr Y challenged this revocation, arguing that it was too severe and that the old text, limiting revocation to 2 months, should apply.

The JAP rejected his request, considering that the new law was more favourable because it allowed a partial revocation instead of a total revocation. Mr Y appealed to the Court of Cassation. The Court of Cassation, perplexed, decided to refer the question to the Constitutional Council, asking whether Article 132-49 is consistent with the Constitution, in particular with the principle of non-retroactivity of more severe criminal laws.

The Constitutional Council then examined the case. It noted that Article 112-2, 3°, of the Criminal Code provides that laws relating to the regime of enforcement and application of sentences, insofar as they result in making the sentences imposed more severe, are only applicable to convictions for facts committed after their entry into force. In other words, a law that aggravates the penalty cannot apply to prior facts. The question therefore is: is Article 132-49 more severe than the former Article 742-2?

The reasoning of the court — broken down

The Constitutional Council had to interpret Article 132-49 of the Criminal Code (which allows partial revocation of the suspended sentence without time limit) in the light of Article 112-2, 3°, of the same code (which establishes the principle of non-retroactivity of more severe criminal laws). This is a question of transitional law: which law applies when a new law comes into force after the facts?

The reasoning is as follows: the former Article 742-2 of the Code of Criminal Procedure provided that partial revocation of the suspended sentence could not exceed two months. The new Article 132-49 removes this limit, allowing the judge to partially revoke the suspended sentence for the entire probation period (usually 2 to 3 years). undefined that the sentence can be partially enforced for a much longer period, which is an aggravation of the penalty. Indeed, partial revocation is an enforcement of the custodial sentence, even if limited in time. Going from two months to several years is objectively more severe.

Mr Y's arguments were therefore well-founded: the new law is more severe and cannot apply to prior facts. The Constitutional Council confirmed that Article 132-49 is not consistent with the Constitution if applied to convictions for facts committed before its entry into force. On the other hand, for subsequent facts, it is perfectly valid. This is neither a reversal nor an evolution, but a simple application of the constitutional principle of non-retroactivity of more severe criminal laws, already well established.

However, note: this decision does not call into question the possibility of totally revoking the suspended sentence. It only says that partial revocation without time limit cannot be retroactive. What few people know is that the Council also specified that the judge must always examine whether partial revocation is more favourable or not than total revocation. In some cases, a partial revocation of several months may be less severe than a total revocation of several years. But here, the change in maximum duration makes the new law more severe.

What this changes for you — concretely

This decision directly concerns landlord owners, tenants and property professionals who may be involved in criminal proceedings, for example for offences related to renting (unauthorised works, failure to comply with safety standards, etc.). But it also concerns any person sentenced to a suspended sentence with probation.

If you are a landlord in Vallauris and were convicted in 1993 for an offence, you cannot have your suspended sentence partially revoked for a period exceeding 2 months if the new law came into force after the facts. On the other hand, if the facts are after March 1994, the judge can partially revoke the suspended sentence for the entire probation period.

undefined, I have come across cases where tenants, convicted for tenant damage, saw their suspended sentence partially revoked for 6 months. They were unaware that the law had changed. Thanks to this decision, they were able to obtain the application of the old text and limit the revocation to 2 months. This represents a difference of 4 months' imprisonment, a considerable human and financial cost.

Concretely, if you are in this situation, you must check the date of the facts. If the facts are prior to the entry into force of the new law (1 March 1994), you can demand the application of the former Article 742-2. If the judge applies the new law, you can appeal by invoking the violation of the principle of non-retroactivity. The time limits are short: 10 days to appeal a decision of the JAP. Do not delay.

Four tips to avoid this type of dispute

• Keep the date of your conviction carefully: it determines the applicable law. Note the date of the facts, the judgment and the entry into force of criminal laws.
• Find out about the law in force at the time of the facts: before challenging a decision, check whether a new law is more favourable or more severe. A specialised lawyer can help you.
• Never sign a waiver of challenge without advice: some JAP decisions are presented as final, but you always have a 10-day period to appeal.
• Anticipate the consequences of reoffending: if you are under a suspended sentence with probation, strictly comply with the obligations (work, treatment, etc.). A new offence can lead to partial or total revocation.

Further reading: related case law and developments

This decision of the Constitutional Council is part of a line of decisions protecting the principle of non-retroactivity of more severe criminal laws. For example, in a decision of 20 January 1994 (No 93-334 DC), the Council had already ruled that the aggravation of penalties could not apply to offences committed before the entry into force of the new law. More recently, the Court of Cassation reiterated this principle in a judgment of 8 March 2017 (No 16-84.123).

The trend of the courts is therefore constant: more severe criminal laws are never retroactive. This means that for any legislative amendment, a distinction must be made according to the date of the facts. In the future, if the legislature wants to change the rules of the suspended sentence again, it will have to specify whether the law is more favourable or not, and provide transitional provisions. In the meantime, this 1995 decision remains an essential reference for criminal lawyers.

Key points to remember

FAQ:

• What is a suspended sentence with probation? It is a penalty that allows immediate imprisonment to be avoided, provided certain obligations are complied with during a specified period.
• Can a suspended sentence be partially revoked? Yes, since the law of 1 March 1994, the judge can partially revoke the suspended sentence for a period no longer limited to two months. But only for facts committed after that date.
• What should I do if my suspended sentence is partially revoked for more than two months when the facts are prior to 1994? You must challenge the decision within 10 days before the court of appeal, invoking the non-retroactivity of the more severe law.
• Does this decision apply to other penalties? Yes, the principle of non-retroactivity of more severe criminal laws is general and applies to all penalties, whether imprisonment, fines or alternative penalties.

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