On 17th October 2023, the Criminal Division of the French Court of Cassation reiterated that any person directly affected by an offence may bring a civil action, even if the damage it claims to have suffered is merely potential.
Background of the case
This case concerned the publication in the press of photos taken during a police arrest. The girlfriend of the man who got arrested, and who was present during the arrest, appeared on some of the photos.
An investigation revealed that the arrest had been photographed because the police officers had been in contact with journalists. A judicial investigation on charges of forgery of a public document and breach of professional secrecy was opened.
The girlfriend’s civil party claim (“constitution de partie civile”) was declared inadmissible by the examining magistrate and then by the investigating chamber of the Paris Court of Appeal.
Decision of the Criminal Division of the Court of Cassation
Article 2 of the Code of Criminal Procedure establishes the principle of admissibility of a civil party’s claim:
‘The civil action for compensation for damage caused by a crime, misdemeanour or contravention belongs to all those who have personally suffered damage directly caused by the offence.’
The Court of Cassation had already ruled in the past that it is sufficient that the damage claimed by a civil party be possible, as long as it is directly linked to the offence :
See notably the ruling of the Criminal Division of 8 January 2020, No. 19-82.385:
‘But whereas in so ruling, whereas for a civil party claim to be admissible before the investigating court, it is sufficient that the circumstances on which it is based allow the judge to accept as possible the existence of direct personal injury and its direct relationship with an offence under criminal law, the Investigating Chamber misconstrued the meaning and scope of the aforementioned texts and the principle referred to above;’
This position was confirmed by the Criminal Division last 17th October:
‘Having regard to articles 2, 3 and 87 of the Code of Criminal Procedure :
It follows from these texts that, for a civil claim to be admissible before the investigating court, it is sufficient that the circumstances on which it is based allow the judge to accept as possible the existence of the alleged loss and its direct relationship with a criminal offence.
In declaring Mrs [G]’s civil action inadmissible, the judgment under appeal stated in substance that the forgery of a public document had been committed during the investigation of Mr [E] for intentional violence.
In so ruling, the Examining Chamber, which correctly held that Mrs [G] had not sufficiently substantiated any prejudice directly related to the acts of forgery of a public document, disregarded the aforementioned texts and the principles referred to above with regard to the acts of breach of professional secrecy.
Mrs [G], who was affected by the investigations carried out since she was followed by police officers to enable Mr [E] to be arrested, claimed damage resulting from an infringement of her privacy as a result of her image being captured and reproduced without her authorisation, following the communication to a journalist of information known only to the police officers involved in the investigation.
Such harm is directly related to the violation of the secrecy of the investigation and the enquiry, as provided for by Article 11 of the Code of Criminal Procedure, the purpose of this text being to guarantee in particular the right to respect for the private life and the presumption of innocence of the persons concerned by the proceedings in question (Cons. const., 2 March 2018, decision no. 2017-693 QPC).
The case is therefore subject to cassation.’