Your case has just been the subject of a decision not to prosecute (classement sans suite). You are wondering what this means in practice, whether prosecution is still possible and what remedies are available to you. You are in the right place.
In this article, I explain:
- what a decision not to prosecute is;
- why a case may end in a decision not to prosecute;
- what effects this decision has;
- what remedies the victim can pursue, step by step.
This article is written for victims, but also for people who have been the subject of an investigation and wish to understand the exact scope of a decision not to prosecute.
What is a decision not to prosecute?
Definition: an administrative decision, not a judgment
A decision not to prosecute is the decision taken by the public prosecutor (procureur de la République) not to bring criminal prosecution following a complaint, a report or a referral, even where facts amounting to an offence have been brought to the prosecutor’s attention.
From a legal standpoint, this decision has several fundamental characteristics that must be clearly understood:
- It is administrative rather than judicial: the public prosecutor’s office (parquet) is not a court. There is no hearing, no adversarial debate and no judge.
- It has no res judicata effect (autorité de la chose jugée): it does not decide the merits of the case.
- It does not extinguish the public prosecution (action publique): prosecution remains possible.
- It is, in principle, revocable for as long as the limitation period has not expired.
These four characteristics clearly distinguish a decision not to prosecute from a judicial decision.
Classement sans suite and classé sans suite: what is the difference?
There is no difference in substance. Both formulations refer to exactly the same legal reality: the prosecutor’s decision not to prosecute. Both expressions coexist in common usage.
Why does a case end in a decision not to prosecute? The possible grounds
Under French law, the public prosecutor has the benefit of the principle of prosecutorial discretion (principe d’opportunité des poursuites), enshrined in Article 40-1 of the French Code of Criminal Procedure. Even where an offence has been committed and no legal obstacle stands in the way, the prosecutor remains free not to prosecute if ‘the particular circumstances connected with the commission of the acts justify it’.
The grounds for a decision not to prosecute are listed in an official nomenclature that distinguishes two main categories.
The legal grounds for a decision not to prosecute
These grounds may include, for example:
- No offence: the reported facts do not correspond to any criminal offence.
- Offence insufficiently established: one or more constituent elements of the offence are missing.
- Extinction of the public prosecution: the offence is time-barred, the offender has died, or an amnesty covers the facts.
- Implementation of an alternative to prosecution: the prosecutor preferred a non-judicial criminal response (a formal reminder of the law [rappel à la loi], mediation, reparation…).
- Offender not identified or untraceable despite enquiries.
Legal scholars observe that some grounds, such as ‘offence insufficiently established’ or ‘no offence’, are sometimes used as ‘catch-all’ grounds to manage caseloads, rather than to reflect a genuine conviction about the facts.
Decision not to prosecute 21
Decision not to prosecute 21 corresponds precisely to the ground ‘offence insufficiently established’.
Grounds of expediency
These grounds involve an assessment by the public prosecutor’s office of whether prosecution is in the public interest:
- Very minor disturbance of public order: the offence is minor and its social impact negligible.
- Minimal or repaired harm: the victim has been fully compensated.
- Personality of the offender: first-time offender, particular personal circumstances.
- Conduct of the victim: withdrawal of the complaint, abandonment of the claim, reconciliation.
Decision not to prosecute and information préoccupante (report of concern)
In certain professional or institutional contexts, referrals are sent to the public prosecutor’s office pursuant to Article 40, paragraph 2 of the French Code of Criminal Procedure by civil servants, doctors, social workers, company directors or local authorities.
Where the prosecutor considers that the information provided does not justify prosecution, the prosecutor may decide not to prosecute. The person who made the referral must be informed (Article 40-2 of the French Code of Criminal Procedure). This decision does not mean that the facts did not occur: it means that the public prosecutor’s office did not consider it expedient to prosecute at this stage.
What are the legal effects of a decision not to prosecute?
A decision not to prosecute does not extinguish the public prosecution
This is the most important effect: a decision not to prosecute does not definitively close the case.
The Court of Cassation has consistently held since 1952 that the prosecutor may reverse the decision and bring prosecution for as long as the limitation period has not expired, without any new element having to come to light (Crim. 6 June 1952, Bull. crim. No. 142; Crim. 5 Dec. 1972, No. 72-92.579, Bull. crim. No. 375; Crim. 19 Apr. 2017, No. 16-80.149).
In other words: if new elements emerge, or if criminal policy changes, the public prosecutor’s office may reopen the file. Nor does it protect against possible prosecution brought by the victim personally (see below).
A decision not to prosecute does not interrupt the limitation period
A decision not to prosecute is not an act of prosecution. It therefore has no interruptive effect on the limitation period for public prosecution (Crim. 19 Feb. 2008, No. 07-84.494).
The limitation period continues to run as normal. Once the statutory period has expired (1 year for petty offences (contraventions), 6 years for misdemeanours (délits), 20 years for felonies (crimes)), any prosecution will be inadmissible, whether or not a decision not to prosecute was taken.
A decision not to prosecute and the ne bis in idem principle
The ne bis in idem principle prohibits prosecuting a person twice for the same facts. However, this principle applies only to final criminal judgments.
A decision not to prosecute, however, is not such a judgment. The Court of Justice of the European Union has stated this clearly: to constitute a ‘final criminal judgment’ within the meaning of Article 50 of the Charter of Fundamental Rights, a decision must result from an effective examination of the merits of the case, with an in-depth assessment of the evidence (CJEU, 25 Jan. 2024, Parchetul de pe lângă Curtea de Apel Craiova).
A decision not to prosecute does not satisfy this requirement. It therefore does not prevent new prosecution, either under domestic law or within the Schengen area.
How long does it take for a decision not to prosecute to be made on a complaint?
No statutory time limit is imposed on the public prosecutor
The French Code of Criminal Procedure sets no maximum time limit within which the prosecutor must rule on a complaint.
Article 40-1 of the French Code of Criminal Procedure gives the prosecutor a discretionary power of assessment. In practice, timeframes vary considerably depending on the complexity of the facts, the instructions of the Prosecutor General’s office (parquet général), the workload of the departments and the state of the investigations.
Such a decision may therefore be made a few weeks after the complaint or several years after.
The obligation to inform the victim
Where the prosecutor decides not to prosecute, the prosecutor is required to notify the complainants and victims, stating the legal or expediency grounds that justify this decision (Article 40-2 of the French Code of Criminal Procedure).
This duty to give reasons, strengthened by the 2004 law, aims to limit ‘opaque’ decisions and to enable the victim to understand why the complaint did not lead to prosecution.
Decision not to prosecute: what remedies are available to the victim?
How can you find out whether a decision not to prosecute has been made on a complaint?
You can enquire with the public prosecutor’s office. In practice, you can call or write to the SAUJ pénal (service d’accueil unique du justiciable en matière pénale, the single reception service for court users in criminal matters) of the judicial court (tribunal judiciaire) within whose jurisdiction the complaint was filed.
To enable the person you are dealing with to identify the file, you should state the name of the victim, the date the complaint was filed, the offences covered by the complaint and, ideally, attach a copy of the complaint.
Good to know: an identification number called the ‘Parquet number’ (numéro de Parquet) is assigned to each file. Do not hesitate to ask the person you are dealing with for this Parquet number and to keep it carefully to make your next request easier.
Hierarchical appeal (recours hiérarchique) to the Prosecutor General (Article 40-3 of the French Code of Criminal Procedure)
Any person who has reported facts to the public prosecutor (victim, third-party informant, authority that signed a referral) may challenge the decision not to prosecute before the Prosecutor General at the Court of Appeal (Article 40-3 of the French Code of Criminal Procedure, resulting from Law No. 2004-204 of 9 March 2004).
The notion of ‘person who has reported the facts’ is interpreted broadly by the Circular of 14 May 2004 (CRIM 2004-04/E8): it includes not only direct victims but also third parties and authorities that have made a referral.
The Prosecutor General may then:
- Direct the public prosecutor to bring prosecution, by written instructions placed on the file;
- Or consider the appeal unfounded and inform the person concerned by a reasoned decision.
The Prosecutor General’s decision cannot be challenged. There is no appeal against a refusal.
In practice, this appeal is rarely used because it is less effective than filing a criminal complaint with civil party application (plainte avec constitution de partie civile).
Criminal complaint with civil party application despite the decision not to prosecute
A criminal complaint with civil party application is often the route chosen to continue the proceedings because it allows an investigating judge (juge d’instruction) to be appointed, who will conduct an investigation independent of the public prosecutor’s office (called the ‘judicial investigation’, or instruction): the judge can hear witnesses, order searches, commission expert reports, and so on.
In practice, this route requires:
- Having filed a ‘simple’ complaint at least 3 months beforehand in misdemeanour matters, or a decision not to prosecute having been made on the simple complaint;
- Paying a security deposit (consignation) set by the investigating judge, which depends on the victim’s income.
Direct summons (citation directe)
Where the legal conditions are met (ordinary-law offences, identified offender, sufficient evidence), the victim may summon the alleged offender directly before the criminal court (tribunal correctionnel), without going through the public prosecutor’s office or an investigating judge. This presupposes that the victim has all the elements needed to prove that the offence was committed and that no investigations need to be carried out.
This route makes it possible to set public prosecution in motion autonomously and can be an effective alternative where a decision not to prosecute has been made. It nevertheless requires rigorous preparation of the file, and the assistance of a lawyer is strongly recommended.
Voluntary interview (audition libre) and decision not to prosecute
You were summoned to a voluntary interview (Article 61-1 of the French Code of Criminal Procedure) and the procedure ended with a decision not to prosecute.
A voluntary interview is an investigative measure: the person summoned is neither placed under formal investigation (mise en examen) nor held in police custody (garde à vue). The person is interviewed freely by the investigators. If, at the end of the investigation, the public prosecutor’s office considers that the facts do not justify prosecution, it may decide not to prosecute.
This decision does not amount to recognition of your innocence in the sense of a final judgment. It means that the prosecutor considered, at this stage, that the conditions for prosecution were not met or that the expediency of prosecuting had not been established.
The practical consequences are the same as for any decision not to prosecute:
- You are not subject to any conviction;
- No entry is made on your criminal record;
- The procedure theoretically remains open until the limitation period expires.
If you attended a voluntary interview and wish to secure your position or understand exactly the scope of the decision that was made, I am available to discuss.
Decision not to prosecute or alternative to prosecution: what is the difference?
Outright (classement sec) and conditional (classement sous condition) decisions not to prosecute
Legal scholars distinguish two forms of decision not to prosecute:
- The outright decision (or unconditional decision): no measure is imposed on the alleged offender. The file is archived. Public prosecution theoretically remains available.
- The conditional decision: the prosecutor announces that no prosecution will be brought if certain conditions are met. For example, compensation of the victim or performance of a formal reminder of the law. This conditional decision relies on the measures set out in Article 41-1 of the French Code of Criminal Procedure.
But in both cases, the decision remains revocable for as long as the limitation period has not expired.
Criminal settlement (composition pénale): the only alternative that extinguishes public prosecution
Unlike a decision not to prosecute, a criminal settlement (Article 41-2 of the French Code of Criminal Procedure) is a procedure which, if properly performed, extinguishes the public prosecution. It requires the agreement of the person implicated and is approved by a judge.
Once the criminal settlement has been performed and approved, no subsequent prosecution for the same facts is possible. It is the true ‘alternative’ to prosecution in the procedural sense of the term.
Conclusion
A decision not to prosecute is not the end of the matter. It is an administrative, provisional and revocable decision, which does not decide the merits of the case and does not definitively close the criminal route.
For the victim, this means that remedies exist: a hierarchical appeal to the Prosecutor General, a criminal complaint with civil party application or a direct summons. These routes are legally regulated and often require a strategy prepared in advance.
For the person who has been the subject of a decision not to prosecute, this means that this decision, however satisfactory it may be in the short term, does not constitute definitive protection against possible future prosecution and does not replace a rigorous legal analysis of their situation.
As a lawyer practising business criminal law in Paris, I support both victims who wish to challenge a decision not to prosecute and the persons implicated who wish to understand their situation and secure their position.
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