Background
Two separate judicial investigations into drug trafficking offences were opened in the same tribunal judiciaire on 5 July and 18 October 2024, each assigned to a different investigating judge (juge d’instruction). On 26 November 2024, the first investigating judge issued a referral order (soit-communiqué) to the public prosecutor, stating her intention to transfer (se dessaisir) her case to the second judge given the factual connexity between the two investigations, and invited the prosecutor to submit formal requisitions or an opinion on the proposed transfer. The prosecutor returned the order bearing only the notation “MP = s’en rapporte” — a standard French procedural phrase signifying that the office defers the matter to the court’s discretion. The joinder of the two proceedings was ordered on 2 December 2024.
M. [B] [V] was placed under formal investigation (mis en examen) for drug trafficking and money laundering as a repeat offender on 6 December 2024. On 5 June 2025 he filed a request for nullity, arguing that the transfer procedure was vitiated by a public-order defect because the prosecutor had never actually issued requisitions for the transfer as required by Article 663 of the Code of Criminal Procedure (CPC). He sought annulment not only of the transfer order but of all procedural acts that depended on it, including wiretap transcripts, a police custody record, and initial-appearance examination records.
The chambre de l’instruction of the Dijon Court of Appeal rejected the nullity request by decision of 10 December 2025. It reasoned that the notation “s’en rapporte” is meaningfully distinct from a mere “ne s’oppose pas” (“does not object”) and expresses the prosecutor’s adoption of the proposed transfer as his own initiative. The Dijon court further relied on the fact that the prosecutor had subsequently filed joinder requisitions before the second investigating judge, which, in its view, confirmed the prosecutor’s procedural initiative. M. [V] brought a cassation appeal.
The Court’s Holding
The Court of Cassation quashed and annulled the Dijon ruling in its entirety, referring the matter to the chambre de l’instruction of the Besançon Court of Appeal. Applying Article 663 CPC, the Court reaffirmed the settled principle that the transfer of one investigating judge’s case to another — where the matters are factually connected or involve the same person under formal investigation — may only occur at the initiative of, and upon formal requisition by, the public prosecutor. The investigating judge has no autonomous power to transfer her own file.
The Court held that the Dijon chamber had misapplied that principle. By merely writing “s’en rapporte,” the prosecutor did not expressly rule on the proposed transfer and therefore did not exercise the competence conferred on him by Article 663. The notation communicates deference to the judge’s judgment — not an affirmative decision to request a transfer. The distinction the Dijon court drew between “s’en rapporte” and “ne s’oppose pas” was legally insufficient: neither formulation constitutes the requisition the statute demands.
The Court also rejected the argument that the defect was cured by the prosecutor’s later joinder requisitions before the second judge. Those subsequent submissions went to the merging of the two dossiers once both were with the second judge; they could not retroactively supply the missing formal requisition for the initial transfer of jurisdiction. Because the procedural defect concerned a requirement of public order, it rendered the transfer and all downstream procedural acts susceptible to annulment.
Key Takeaways
- Under Article 663 CPC, the public prosecutor — not the investigating judge — must affirmatively initiate and formally request any transfer of jurisdiction between investigating judges handling connected matters; the judge cannot transfer her own case of her own motion.
- The notation “s’en rapporte” (deferring to the court) does not satisfy the statutory requirement of prosecutor’s requisitions; an express, positive requisition for the transfer is mandatory.
- Subsequent prosecutor submissions (such as joinder requisitions before the receiving judge) do not cure the absence of proper initial requisitions; the defect is one of public order and attaches at the moment of the transfer procedure itself.
- A procedurally invalid transfer contaminates all acts whose legal basis depends on it — including surveillance intercepts, custody records, and interrogation transcripts — exposing the entire investigation to nullity.
Why It Matters
This decision clarifies a subtle but consequential procedural distinction in French criminal investigation practice. Investigating judges routinely use “s’en rapporte” as a shorthand when seeking prosecutorial input, and Dijon’s reasoning — that the phrase signals adoption rather than mere acquiescence — had an intuitive appeal. The Court of Cassation’s firm rejection of that reading reinforces that Article 663 demands a genuine exercise of discretion by the prosecutor, not passive non-objection. Practitioners and prosecutors must ensure that any request to transfer jurisdiction between investigating judges is accompanied by an unambiguous, affirmative requisition, or risk public-order nullity that can unravel months of investigative work.
The ruling also signals that procedural shortcuts in complex, multi-file drug trafficking investigations will receive strict scrutiny. Given that the annulment potentially extends to wiretaps, custody records, and formal examination proceedings, the practical stakes on remand before the Besançon court are substantial. Defence counsel in similar multi-judge investigation scenarios now have a clear precedent with which to challenge transfers where the prosecutor’s response was equivocal.