The constitution of civil party

The constitution of a civil party is what allows the victim of a criminal offense (theft, assault, etc.) to obtain compensation for his damage by means of damages and to be a party to the trial (which for him will allow, among other things, to have access to the file of the procedure, to be able to request investigative acts from the judge,…). It also allows the initiation of proceedings against the perpetrator in the event of the prosecution's inertia.

To become a civil party, two ways are possible  :

• File a complaint with a civil party

• Intervene with the investigating or trial courts once the public action has been implemented.

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First elements

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Who can become a civil party?

Only persons who have personally and directly suffered the damage can become a civil party ( article 2 of the Code of Criminal Procedure ).

The indirect victims (insurer, members of the victim's family, relatives of the victim, etc.) of the offense cannot intervene during a criminal trial, they can obtain compensation for their damage by referring the matter to the civil judge.

An exception exists for the heirs of the deceased victim who may be granted the capacity to become a civil party.

At what stage of the procedure should I become a civil party?

It is possible for the victim to become a civil party at any time during the proceedings , until the day of the hearing and in any case until the prosecutor's indictment ( article 87 of the Code of Criminal Procedure )

Can the constitution of civil party be called into question?

YES. The public prosecutor or one of the parties may contest the constitution of civil party ( article 87 of the Code of Criminal Procedure )

Is assistance by a lawyer compulsory for the constitution of a civil party?

NO. Assistance by a lawyer is optional but recommended.

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In the event of insufficient resources, a court-appointed lawyer may be requested, as well as legal aid.

We invite you to visit our page dedicated to legal aid, on which you will also find links to the various bar directories, to find a lawyer.

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Is there a time limit for becoming a civil party?

YES. In criminal law, there are limitation periods .  

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Beyond these deadlines, infringements can no longer be penalized, their perpetrators can no longer be prosecuted.

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Tickets are prescribed in 1 year  ( art. 9 Code of Criminal Procedure ), misdemeanors by 6 years  ( art. 8 Code of Criminal Procedure ), crimes by 20 years  ( art. 7 Code of Criminal Procedure ).  

In principle, these time limits begin to run on the day on which the infringement was committed.  

However, for certain offenses, the starting point of the time limit may be postponed.  For example, in the event of rape of a minor, the time limit begins to run when the victim reaches the age of majority ( art. 7 Code of Criminal Procedure ).

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The complaint with the constitution of civil party

The complaint with the constitution of civil party makes it possible to trigger an investigation led by an examining magistrate: the judicial information .

It is only possible in the event of a felony or misdemeanor . For a contravention, the civil party must directly appeal to the police court by direct summons ( article 85 paragraph 1 Code of Criminal Procedure ).

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It is not to be confused with the simple complaint which is only the simple report of an offense to the Public Prosecutor, who decides on the follow-up to be given to it.

This simple complaint is, however, the first mandatory step in the procedure .

It is only if it does not succeed that a complaint with the constitution of civil party can take place.

It should be noted that for crimes, press offenses and violations of the electoral code, the complaint is not a mandatory prerequisite.

Three situations reveal the lack of outcome of a procedure :

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• When the simple complaint is dismissed by the public prosecutor.

• When the simple complaint has been filed with the public prosecutor for 3 months without any follow-up being given .

• When the copy of the simple complaint lodged with a police or gendarmerie service has been sent to the public prosecutor for 3 months and no action has been taken

article 85 paragraph 2 Code of Criminal Procedure

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Evidence of the lack of outcome of a complaint:

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Notice of classification without further action  : letter from the public prosecutor expressly indicating his refusal to initiate proceedings.

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The dated proof of the filing of the complaint  : receipt in the event of direct deposit to the court (or the acknowledgment of receipt in the event of sending by registered mail).

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Proof of the transmission of the copy of the complaint to the prosecutor for at least 3 months  : receipt in case of direct deposit to the court (or acknowledgment of receipt in case of sending by registered mail)

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If the victim has requested  damages  before a civil judge between her simple complaint and her complaint with the constitution of civil party, she must cancel her request before the civil courts before seizing the examining magistrate.

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The steps to follow

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The filing of a complaint with the constitution of civil party is done  :

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• By a dated and signed letter sent by ordinary letter or by registered letter with acknowledgment of receipt to the investigating judge of the judicial court of the place of the offense or the domicile of the offender.

• By oral statement before the same examining magistrate.

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To find the competent court, please follow the following link.  

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If the complaint is sent by mail, the complainant must indicate the following:  :

Mandatory elements  :

• His willingness to file a complaint and become a civil party

• Facts denounced for which she considers herself a victim  : day, time, place, circumstances (a legal qualification of the offense or the crime is not necessary)

• Contact details with an address in France

• Information on the unsuccessful simple complaint (with the aforementioned supporting documents)

Optional items  :

• Identity of the alleged perpetrator (otherwise the complaint will be against X)

• Request  damages  and amount thereof.

You will find by following this link a model letter of constitution of civil party.

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The obligation to deposit a deposit

articles 88 and 88-1 of the Code of Criminal Procedure

Following the filing of a complaint with the constitution of civil party, the complainant is asked to deposit a deposit, that is to say the payment of a sum of money fixed by the judge according to the complainant's income. Its maximum amount is 15,000 euros.

The complainant may be exempted from paying this deposit if  :

• He received legal aid.

• This is the decision of the examining magistrate.

If this deposit is not paid within the time limit set by the judge, the complaint may be dismissed.

This sum makes it possible to guarantee the payment of a possible fine pronounced in the event that the complaint turns out to be abusive.

If this is not the case, the deposit is returned in full to the complainant at the end of the investigation, regardless of whether there is a trial, or in the event of an appeal .

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The follow-up to the complaint with the constitution of civil party (article 86 of the Code of Criminal Procedure )

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Transmission to prosecutor

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The complaint is transmitted by the examining magistrate to the public prosecutor who will issue an opinion called requisitions .

By these the prosecutor asks: either the opening of a judicial investigation, or a dismissal, or the absence of information.

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Decision of the investigating judge

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The examining magistrate is free to follow (or not) the requisitions of the public prosecutor.

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He can decide  :

• To open a judicial investigation

• To issue an order refusing to inform if he considers that the facts denounced are not a criminal offense or if they have clearly not been committed. In this case, the investigation is not launched.

The complainant can appeal the decision to refuse to inform within 10  clear days  following the  notification  of this decision.

If the investigating judge refuses to open a judicial investigation, the person concerned by the complaint can sue the complainant for slanderous denunciation and request the payment of  damages ( article 91 of the Code of Criminal Procedure ).

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The constitution of civil party by way of intervention

This modality of constitution of civil party is the simplest.

It allows the victim to take action after the public prosecutor has initiated action.

The burden of prosecution then rests with the public prosecutor ; thus, the civil party cannot be fined for abusive complaint.

It can take place at any time during the investigation ( article 87 of the Code of Criminal Procedure ).

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When there has been no opening of judicial information or when the investigation is completed , the declaration of the constitution of civil party can be done either before the hearing at the registry, or during the hearing by recorded declaration. by the clerk or by filing conclusions.

In any case, the constitution of civil party must take place before the requisitions of the public prosecutor at the hearing ( article 419 of the Code of criminal procedure ).

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Last update: July 2020