Illegal Eviction: When the Criminal Judge Can Annul a Prefectural Order

Imagine you are the owner of an apartment in Cannes, facing a tenant who has not paid rent for six months. You obtain an eviction order (an administrative decision ordering the vacating of the premises) from the prefect, but the tenant refuses to leave. You initiate criminal proceedings for failure to comply with an eviction order (refusal to leave the premises despite the administrative order). But here's the catch: what if the order itself is illegal? Who can establish this?

This question, much more common than one might think on the French Riviera where property pressure is high, found a clear answer in a 1995 Court of Cassation decision. Every landlord facing a recalcitrant tenant asks it: how can I enforce my rights without risking the entire procedure being annulled?

The decision we analyse today establishes a crucial distinction between what the parties must do and what the judge can do of their own motion. It specifies that while a party must raise a preliminary objection (request for prior verification of the legality of an act) before any defence on the merits, the criminal judge can, of their own motion, establish the illegality when it conditions the outcome of the trial. In plain terms, even if you forget to challenge the legality of the order, the judge can do it for you if it is necessary to decide the case.

The facts: a story as it happens every day

Mr. Martin, owner of a studio near the Croisette in Cannes, has been renting his property to Mr. Dubois for three years. Everything goes well until Mr. Dubois, following professional difficulties, stops paying his rent. After several unsuccessful reminders, Mr. Martin obtains an eviction order in due form from the prefect of Alpes-Maritimes.

But Mr. Dubois refuses to leave the premises. He believes the order is illegal because, according to him, the prefect did not respect certain mandatory formalities. Prosecuted for failure to comply with an eviction order before the Grasse Criminal Court, Mr. Dubois does not immediately raise the illegality of the order. He initially only contests the facts, claiming he never received official notification.

The case takes several twists. At first instance, the Criminal Court convicts Mr. Dubois. He appeals. The Aix-en-Provence Court of Appeal confirms the conviction. But then Mr. Dubois turns to the Court of Cassation, arguing that the lower courts did not examine the illegality of the order that he eventually invoked.

What few people know: in this type of procedure, timing is crucial. Raising a preliminary objection (request to verify the legality of an act before judging the merits) is not trivial. Waiting too long can make you lose this right. But the Court of Cassation will add an important nuance.

The court's reasoning — dissected

The Court of Cassation, in its judgment of 7 June 1995, makes a subtle but fundamental distinction between two situations. On one hand, it recalls Article 386 of the Code of Criminal Procedure: if a party wishes to invoke the illegality of an administrative act, they must do so by a preliminary objection (prior request) before any defence on the merits. In other words, you cannot first discuss the facts, then go back to contest the legality of the order.

But beware: the high court adds a crucial clarification drawn from Article 111-5 of the Criminal Code. This article allows the criminal judge to establish of their own motion (on their own initiative, without the parties requesting it) the illegality of an administrative act, whether regulatory or individual, when this illegality conditions the outcome of the trial before them.

In plain terms, even if Mr. Dubois did not raise the preliminary objection in time, the lower courts (Criminal Court and Court of Appeal) could have — and even should have — examined of their own motion the illegality of the order if it was essential to decide whether he was guilty or not. The Court of Cassation therefore quashes the Court of Appeal's judgment and remits the case for a new examination.

undefined, I have encountered cases where landlords in Antibes thought they were safe once the eviction order was obtained, unaware that its legality could be challenged at any time by the criminal judge themselves. This decision confirms that the criminal judge is not bound by administrative acts: they can review them when necessary to render their decision.

What this changes for you — concretely

But what exactly does this change in your daily life as a landlord, tenant, or real estate professional? Let's take each profile separately.

If you are a landlord (person who rents out a property): this decision requires the utmost rigour. An eviction order poorly drafted or obtained without respecting all formalities can be annulled by the criminal judge, even if your tenant did not raise the illegality in time. In Antibes, where average rents reach €1,800 for a three-room flat, losing several months of procedure due to a formal defect can cost you dearly. Concretely, if you initiate proceedings for failure to comply with an eviction order, you must verify that your order is perfectly regular. Otherwise, the judge could establish its illegality of their own motion and annul the entire procedure.

If you are a tenant: this decision offers you additional protection. Even if you forget to challenge the legality of the order in time, the criminal judge can do it for you if necessary. However, be careful: this does not mean you can wait until the last moment. In practice, it is better to raise the illegality as soon as possible. If you are in this situation, you should consult a specialised lawyer quickly to examine the regularity of the order.

If you are a real estate professional (manager, property manager): this decision strengthens your advisory role. You must alert your landlord clients about the importance of the regularity of administrative acts. An irregular eviction order can lead to the annulment of proceedings and require restarting the entire procedure, with additional delays of 6 to 12 months depending on the courts.

Four tips to avoid this type of dispute

• Systematically check the regularity of the eviction order: before initiating criminal proceedings, have the order examined by a specialised lawyer. A formal defect (lack of reasoning, error in identity, irregular notification) can make everything fail.
• Scrupulously respect deadlines: if you contest an order, do so by preliminary objection before any defence on the merits. Waiting can make you lose this right, even if the judge can always establish the illegality of their own motion.
• Document each step: keep all evidence of notification, letters, bailiff's reports. In a dispute in Grasse or Cannes, these documents can make the difference.
• Anticipate the criminal judge's review: even if your opponent does not raise the illegality, prepare for the judge to examine it of their own motion. Ensure your file is solid on all points.

Deep dive: related case law and developments

This 1995 decision fits into consistent case law of the Court of Cassation. Already in 1987, a judgment of the Criminal Chamber had affirmed that the criminal judge could review the legality of individual administrative acts. The 1995 decision clarifies this position by clearly distinguishing what the parties must do (raise the preliminary objection in time) and what the judge can do of their own motion (establish the illegality if it conditions the outcome).

More recently, in 2018, the Court of Cassation confirmed this approach in a case concerning a municipal order. The trend is clear: criminal judges are extending their power of review over administrative acts, especially when these form the basis of the prosecuted offence. What does this mean for the future? Greater legal certainty for all, but also an increased need for rigour in preparing files.

How to react to this evolution? By integrating now that any administrative act, especially if it serves as the basis for criminal proceedings, must be impeccable. Otherwise, the criminal judge will be able to — and must — establish its illegality.

What you must absolutely remember

• The criminal judge can establish of their own motion the illegality of an eviction order, even if the parties did not request it, when this illegality is essential to decide the case.
• The parties must raise the preliminary objection before any defence on the merits. Waiting too long can make you lose this right, but does not prevent the judge from acting of their own motion.
• Always check the regularity of the order before initiating proceedings. A formal defect can make everything fail.
• Consult a specialised lawyer quickly, especially on the French Riviera where courts like that of Grasse are very demanding regarding respect for formalities.

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