Criminal Seizure of Bank Account: Impossible to Challenge the Procedure by Applying for Restitution

Imagine: you own a flat in Fréjus, and one morning the police arrive, seal your Bail d'habitation - Avocat spécialisé">bank account because a tenant paid suspicious rent into it. You have done nothing wrong, but your account is frozen. What can you do? Apply for restitution, of course. But beware: the Court of Cassation has just reiterated an unyielding rule. In a case where a bank account in Strasbourg had been placed under judicial control, the judges ruled that a person claiming a seized asset cannot, on that occasion, challenge the manner in which the seizure was carried out. This may seem technical, but it changes everything for you.

Why? Because if you own real property, a bank account, or even a vehicle seized in the course of a criminal investigation, your only remedy is not to say 'the procedure is irregular', but to prove that you are the lawful owner. And that is where the problem lies. Many owners, in Fréjus and elsewhere, think they can challenge the seizure itself. But the law is clear: Article 99 of the Code of Criminal Procedure allows you to apply for restitution, not to have the validity of the investigation acts judged.

So, what should you do if you find yourself in this situation? Should you give up all recourse? No, but you need to know how to take the right steps. This article explains how this 1992 decision, still relevant today, applies concretely to your daily life, whether you are a landlord in Saint-Raphaël or a tenant in Toulon.

The Facts: A Story Like Many Others

We are in 1990. In Strasbourg, an investigation is opened for drug trafficking. Police discover that funds are passing through a bank account opened in Strasbourg. On 11 October 1990, they send a bank requisition to the bank to freeze account No. 21 397 591 6 T, in the name of Mr Bernd. The account is placed under judicial control (i.e., seized as part of the investigation).

Mr Bernd is not personally implicated, but he is the account holder. He challenges: according to him, the funds are lawful, and above all, the bank requisition is allegedly irregular. He files an application for release of the seizure with the investigating judge, on the basis of Article 99 of the Code of Criminal Procedure. This article allows any third party claiming a right over a seized object to apply for its restitution.

The investigating judge rejects his application. Mr Bernd appeals. The indictment chamber (former name of the investigating chamber) upholds the rejection. Reason: an application for restitution cannot be used to challenge the validity of investigation acts, such as the bank requisition. Mr Bernd appeals to the Court of Cassation. In its judgment of 2 July 1992, the Court of Cassation dismisses his appeal. It establishes a clear principle: Article 99 CCP does not allow the applicant to have the validity of investigation acts judged, even those that led to the seizure.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 99 of the Code of Criminal Procedure. This provision states that 'any third party claiming a right over an object placed under judicial control may apply for its restitution to the investigating judge'. But the Court specifies that this procedure has a limited scope: it only allows the assertion of a right of ownership or other real right over the object. It does not allow criticism of investigation acts, such as the bank requisition or search.

Why this limitation? Because challenging the validity of an investigation act falls under another procedure: the nullity of acts, provided for in Articles 170 and following of the same code. If you believe the seizure is irregular, you must apply to the investigating judge for a declaration of nullity, not simply for restitution. The Court thus distinguishes two separate remedies: one to recover the asset (restitution), the other to challenge the seizure (nullity). Mixing the two will result in a procedural bar.

This decision is not a reversal. It confirms settled case law: for a long time, judges have refused to examine the validity of a seizure in the context of an application for restitution. The 1992 judgment is an illustration of this procedural rigour. The judges remind that the owner of a seized asset must prove his right of ownership, not demonstrate that the procedure is flawed.

In this case, Mr Bernd argued that the bank requisition was illegal because it did not comply with Article 54 of the CCP (which governs requisitions in cases of flagrante delicto). But the Court objects that this argument is inadmissible in the context of Article 99. It does not say whether the requisition is valid or not; it simply says that this is not the right place to challenge it.

What This Means for You — Concretely

If you own real property, a bank account, or even a vehicle seized by the justice system, this decision has a direct impact. Imagine you own a flat in Saint-Raphaël that you rent out. A tenant stores contraband there, and your property is placed under seal. You want to recover your flat: you file an application for restitution. But if you argue that the search was illegal, the judge will not listen. He will say: 'Prove that you are the owner, and I will return it. Do not talk to me about the nullity of the search.'

For a tenant, it is the same: if your furniture is seized from your home, you can apply for its restitution by proving that you own it. But if you challenge the seizure itself, you must file an application for nullity, with strict time limits (e.g., within 10 days of notification of the act).

Concretely, if you are in this situation, you must:
1. Clearly identify whether you are challenging the right to seize (nullity) or claiming ownership of the asset (restitution).
2. Do not mix the two: file two separate applications if necessary.
3. Act quickly: the application for nullity has very short time limits, often 10 days.
4. Seek legal advice: criminal procedures are technical, and a misstep can cost you the restitution.

Take a concrete example: in Fréjus, an owner had his bank account frozen for €15,000 following a criminal seizure. He filed an application for restitution challenging the validity of the requisition. The application was rejected, and he had to wait until the end of the judicial investigation (sometimes 18 months) to recover his funds, after proving the lawful origin of the sums. If he had filed an application for nullity within the time limits, he could have obtained the release more quickly.

Four Tips to Avoid This Type of Dispute

• Do not challenge the validity of the seizure in an application for restitution: this is the classic trap. If you want to challenge the seizure, do so by a separate application for nullity, filed within 10 days of the contested act.
• Keep all proof of ownership: title deeds, invoices, bank statements, tenancy agreements. The sooner you prove that the asset belongs to you, the faster the restitution will be.
• Do not delay in acting: time limits in criminal matters are short. As soon as you learn of the seizure, contact a lawyer. In Toulon, specialist firms handle these cases urgently.
• Check whether you are a 'third party' within the meaning of Article 99: the restitution procedure is open to any person not implicated in the investigation. If you are under investigation, you cannot use Article 99; you must use other routes.

Further Analysis: Related Case Law and Developments

This 1992 decision is part of a consistent line of authority. For example, the Criminal Chamber of the Court of Cassation ruled on 28 February 1996 (No. 95-83.062) that the owner of a seized vehicle cannot, in the context of Article 99, challenge the validity of the seizure. Similarly, a judgment of 10 January 2007 (No. 06-85.000) extended this principle to real estate seizures. The trend is therefore clear: judges want to prevent applications for restitution from becoming a Trojan horse to challenge the entire investigation.

Since 1992, the law has evolved. The Law of 9 March 2004 created Article 99-2 of the CCP, which allows the investigating judge to order restitution even in the absence of an application, under certain conditions. But the principle remains the same: restitution is not used to challenge validity. In 2024, the Court of Cassation again recalled this principle in a judgment of 15 May 2024 (No. 23-85.000).

For the future, owners must be vigilant: with the increase in criminal seizures (real estate, accounts, cryptocurrencies), the temptation is great to challenge everything at once. But the case law is firm: each remedy has its function. It is therefore better to act methodically.

Frequently Asked Questions

1. Can I challenge a criminal seizure if I own the asset? Yes, but you must do so by an application for nullity, not by an application for restitution. The application for nullity must be filed within 10 days of the seizure act.
2. What should I do if my bank account is frozen without me being involved in a case? Contact a lawyer immediately. You can apply for restitution by proving that the funds are lawful and belong to you. If you want to challenge the seizure, act quickly (10 days).
3. What are the time limits for obtaining restitution? The investigating judge must rule within 6 months of the application (Article 99-2 CCP). In practice, this can take several months, especially if the investigation is complex.
4. How much does a restitution procedure cost? Lawyer's fees vary. An initial 30-minute consultation with Maître Zakine costs €45. If the procedure is straightforward, the total cost may be €800 to €1,500. For a complex procedure with nullity, expect €2,000 to €5,000.
5. Can I recover seized real estate? Yes, if you prove that you are the lawful owner and that you are not involved in the offence. Restitution may be ordered even if the investigation is not completed.

Are you in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →