Nullity of Procedure

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Contents

Background

Violations of criminal procedure rules can be sanctioned in a number of ways: the judge may refuse to consider certain evidence (exclusion) or even dismiss the case altogether (annulment or nullification) Procedural violations may be sanctioned at trial by the judge, or on appeal by a reviewing court. These procedureal errors may be committed by judges, prosecutors, police officers or clerks. If the procedural violation is substantial enough, it may even trigger criminal sanctions. Finally, the injured party may bring a case for civil damages as a result of procedural violations.

For example, if a defendant's confession is extracted by torture, the defense attorney may argue that the confession should be inadmissible at trial because it was the result of a textual or substantial nullity of procedure. The torturer may be prosecuted for assault or some other crime. The victim of torture may even have a civil remedy against the government for failure to protect them from torture during their pre-trial detention.

This article focuses on the class of remedies known as nullity of procedure.

Nullity of Procedure

Nullity of procedure is a civil law concept similar to the common law concept of the exclusionary rule, and it is founded on the fundamental principal of justice that establishes the need to respond to barbarity, in whatever form, through legality.

Procedure is the route by which decision is reached and leads, ideally, to social harmony. As a consequence, all participants in the judicial process must submit to the rule of procedure. The magistrate and the prosecution are both bound to follow procedure as they embody the criminal justice process at the highest level.

Acting from the bench, the judging magistrate acquires legitimacy by meticulously following fundamental rules. More than any other, the magistrate can void an entire section of the proceedings, release a guilty person who admits responsibility, no matter what his or her crime, due to the rule of law being used to the extent that the entire case is entrenched in illegality.

This meticulous respect to the procedural aspect of a case, leading when necessary to annulment, gives the judge the real power and right to judge all other files, and to condemn, if appropriate, all other guilty accused. It is not purely through respect for the word of the law, but through an understanding of the purpose of the justice system in which magistrates vow to accomplish their duty.

While acting as the prosecution, the magistrate must not work with the same tools as the accused. To infringe upon procedure or fundamental rights is to enter into illegality on the same level as those being pursued. The most inexcusable practice for the magistrate is if this is taken as the basis of banditry. A situation must not develop where a magistrate provides an escape from the law. Absolute equality is the basis of civilized, democratic justice.

Under the current system, the prosecutor must request the annulment of any doubtful elements of the proceedings. At the preliminary discussions, the prosecutor must set out the parameters of its investigators to give instructions, and to respect, and require respect, of the rule of law. Further, the prosecutor must assure that those who operate under its authority are monitored, and are sanctioned if any of these procedural rules are broken. Thus, the prosecution acquires the legitimacy to judge with its desired severity against the accused, in the strictly legal sphere.

For the police, as for lawyers and magistrates, to respect procedure is above all to respect the ethical framework of each of these professions. It is impossible to participate in the work of justice without being just and legal. The only means is through that of criminal procedure. There is only one justice, and this comes out of fair trials and from the respect of fundamental rights.

Types of Nullity

Saying that part of a procedure or an act is null means that it has no effect anymore. The situation is like if the nullified procedure or act had never existed before, thus preventing it from having further effect on the continuation of the proceeding.

Absolute v. Relative Nullities

Nullities have been traditionally divided into absolute and relative.

Absolute nullities are those which may be insisted upon by any one having an interest in rendering the act or the procedure null (even by the public authorities). Generally, they can be raised at any stage of the criminal proceeding.

Relative nullities can be invoked only by the party in whose favor the law has been established, and usually within a certain time frame. Some systems provide that the party directly affected may waive the breach and thus indirectly regularize the entire procedure.

There is no full list of all the circumstances which may result in a nullity of procedure, and generally, not all (minor) infractions of procedure justify an annulment In practice, and without being exhaustive, within regular criminal procedures in civil law systems, three major domains are typically protected by such a nullity mechanism:

  • The physical and mental integrity of the person
  • The procedural rights of the person (e.g. The presumption of innocence, the right to a just, impartial and fair trial etc.)
  • The rights of the defense
  • The principles of the judicial organization
  • The public order of the judiciary

Textual, Substantial and Public Order Nullities

Nullification of procedures or acts may be explicitly stated or implied by constitutions, criminal procedure codes, penal codes, or general provisions of law.

Textual nullities may occur if a provision for nullification is explicitly included in a country’s source of law. Although exact textual nullities may vary from country to country, these sanctions typically protect the regular carrying out of several categories of procedures, such as those concerning search and seizure and telephone wiretaps of a lawyer's office[1]

For instance, Article 59(2) of the French Criminal Procedural Code state that "[T]he formalities mentioned under articles 56, 56-1, 57 (the procedures concerning search and seizure) and the present article (search and seizure) are prescribed under penalty of nullity".

Substantial Nullities, sometimes called Virtual Nullities, are not found in penal codes or other laws. Substantial Nullities occur if the procedural violation has violated "substantial" provisions of the penal code (or other criminal norms), even though the last ones do not provide explicit procedures for nullification.

In France, the substantial nullity mechanism was first codified in 1993, in Article 171 of the Criminal Procedure Code. The norm states that “[t]ere is nullity whenever the ignorance of a substantial formality prescribed either by this code or by any other provision of the criminal procedure has caused prejudice to the party invoking it”.

Substantial nullity is decided on a case by case basis. Usually, when assessing whether a substantial nullity has occurred, the court looks at the following:

  • The severity of the procedural irregularity, whether it be a failure of provision or some other responsibility of the legal system
  • How the violation would affect public order and confidence in the judiciary
  • The extent of the prejudice that occurs because of the violation

The absence of an explicit provision for substantial nullities does not prevent the defense lawyer from raising nullification as a strategy for a defendant. Criminal defense lawyers working in civil law jurisdictions which do not formally recognize nullification may employ the same rational for arguing for nullification of procedures. They may also point out that while substantial nullity is now codified in French criminal procedure, its origins are in uncodified case law.

Public Order Nullities. As a general rule, the defendant must suffer some kind of harm for a substantial nullity to exist. However, in certain cases where the violation affects an important public interest, a substantial nullity may still arise, even if the defendant has not been affected by the violation. This is because the ratio of the norm which has been violated is tied more closely to public order than the rights of the defendant.

Proving a Nullity of Procedure

A criminal defense attorney has the burden of proof in demonstrating that a procedural violation has occurred and that the defendant has suffered harm. Evidence may include attestations, medical reports, photographs, video or other types of real evidence.

A criminal defense attorney who recognizes either a textual, substantial, or public order nullity, should raise the nullity at the earliest possible time.

Raising a Nullity in a Criminal Proceeding

Nullification should be raised regardless of whether the criminal procedure code provides a mechanism to raise the issue (Examples: Sample Motion for Nullity of Procedure in Rwanda (PDF) . This is especially important when the violation involves breaches of fundamental rights such as the right to physical integrity.

Raising a Nullity in the Context of Torture. France and Germany: A Comparison of Two Models.

France and Germany, can be taken as examples among civil law countries because they represent the two models on which civil law systems, broadly, have shaped their criminal justice systems.

The two countries, as well as other EU states, have been largely influenced by the decisions of the ECHR, and regarding the validity of pieces of evidence obtained with coercion, ECHR’s influence translated into the prohibition of using this kind of evidence. This is also strictly related to the right against self incrimination that is rooted in the civil law systems since ancient Rome and identified with the maxim «nemo tenetur se detegere».[2]

In Germany, Article 136a of the Criminal Procedure Code (StPO) lists the methods that cannot be used during an interrogation. No fatigue, physical interference, administration of drugs, torment, deception, hypnosis, threats, or measures that impair the accused can be used. The accused’s consent cannot be used to waive this prohibition.[3] According to Article 136a(3) StPO, the Court has the obligation not to accept evidence illegally obtained. This is the only case in which in the German procedural law mandates application of an exclusionary rule.[4]

In France, the prohibition of using information obtained by means of torture, is the result of decisions of the Cour de cassation.[5] The Court has recognized the bar as a fundamental principle of the norms regulating the collection of evidence, and the attempts to undermine it, consequently, entails the material illegality of the piece of evidence obtained.

While in France a specific exclusionary rule is not envisioned by the procedural code, like in Germany, the principle of honesty and respect for the dignity of each human being do affect the material legality of the evidence.

Here is the reasoning: according to article 171 French Criminal Procedure Code,[6] there is a nullity when the ignorance of a formality[7] or regarding the substance of an act damages the interest of the party to which it relates. Both the use of coercion to obtain the consent of the person under interrogation, as well as the interrogation carried out with violation of the respect of the human beings do not meet the best interest of the person who is being heard. Consequently, Article 802 French Criminal Procedure Code[8] states that in case of violation of the forms prescribed by law under penalty of nullity, or the non compliance with the substantial formalities, the Court can pronounce the nullity when it concerns the interests of the part which it relates to. The nullity might regard just a specific act or a part of the proceeding.

Contrary to the German code, article 172 French Criminal Procedure Code[9] envisions the possibility that the party toward which a substantial formality has been ignored can give his express consent to the regularization and use of the act which would be otherwise null. This must be done in the presence of a lawyer who can guarantee the renounce and so ensure that his client has fully understood the consequences of it.

The prohibition of using pieces of evidence obtained with the allure of a future advantage or using tricky methods is also considered an application of the principle of honesty. However, while in Germany the notion of “trick” seems more restrictive, in France the Cour de Cassation prohibited the use of any kind of trick or stratagem while looking for the collection of evidence.[10]

Given the fact that the evidence obtained in violation of the above mentioned principles cannot be used to prove someone’s culpability, can the same piece of evidence be used to discharge or support his innocence?

Understanding the type of nullity (absolute or relative) we face, it is fundamental to use the illegal piece of evidence as a defense tool.

In France, where the provisions concerning the nullity of procedure are generic (they are applicable to all kind of irregularities), and the victim’s consent can regularize the nullity, a Court could in theory decide to use the piece of evidence or not, according to the specific case. However, when the nullity is declared, the document that contains the evidence, is taken out from the file to avoid the possibility that it could influence the judges. Anything different from the removal would expose judges, lawyers and prosecutors to professional liability.

In Germany, given the extreme rigidity of Article 136 StPO, the nullity has been interpreted as absolute, and thus without any possibility of using evidence illegally obtained, even if the person who has been abused consents.

Both the French and the German nullities are absolute. However, the Court knows the content of the document expelled from the file. If a defense counsel thinks that that particular piece of evidence– even if excluded–is somehow useful for his client, he must try to recall its favorable elements using different ways than that specific document.

A piece of evidence obtained in violation of procedural rules could eventually bring elements in favor of the co-defendant. It is the opinion of the French Cour de Cassation that the nullity of an act that has been required by one party cannot be opposed to the other one. This is confirmed by Article 612(1) French Procedural Code, which states that in appeal, if “the interest of the law and order or a good administration of justice orders it”, the Court can declare that the nullity will not have effect with regard to the parts who are not appellants. This undermines the principle of absoluteness of the nullity.

On the contrary, the possibility for the codefendant to use the illicit evidence in the German system is again precluded by Article 136a StPO, whose ratio is to grant respect to the rule of law above anything.

FRANCE GERMANY
PROHIBITED METHODS OF INTERROGATION No explicit provision. - Decision taken on a case by case basis, according to Articles 171 and 802 CPP Art. 136 StPo - Ill-treatment, induced fatiguephysical interference, administration of drugs, torment, deception or hypnosis. Coercion can be used only as far as this is permitted by criminal procedure law. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall are prohibited.

Measures which impair the accused's memory or his ability to understand are not be permitted.

OBLIGATIONS OF THE COURT Discard evidence collected in violation of the prohibition. Discard evidence collected in violation of the prohibition.
ACCUSED CONSENT The Defendant can waive the prohibition (Art. 172 CCP) The defendant cannot waive the prohibition (Art. 136 StPo)
TYPE OF NULLITY Absolute Absolute

Sample Motion for Nullity of Procedure

Notes

  1. Articles 100-7 French Criminal Procedure Code.
  2. For further information about a comparative analysis of the rights against self incrimination, Pauline Danjou« Le silence est d’or» ? Analyse comparée du droit de ne pas participer à sa propre incrimination en droit anglais, français et européen, at http://m2bde.u-paris10.fr/content/«-le-silence-est-d’or»-analyse-comparée-du-droit-de-ne-pas-participer-à-sa-propre-incriminat
  3. [Prohibited Methods of Examination]. (1)The accused's freedom to make up his mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis. Coercion may be used only as far as this is permitted by criminal procedure law. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall be prohibited. (2)Measures which impair the accused's memory or his ability to understand shall not be permitted. (3)The prohibition under subsections (1) and (2) shall apply irrespective of the accused's consent. Statements which were obtained in breach of this prohibition shall not be used, even if the accused consents to their use.
  4. Raneta, Lawson Mack, Comparative Criminal Procedure: History, Processes and Case Studies, 2008, William S. Hein & Co., Inc., at 317
  5. Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e. See also http://m2bde.u-paris10.fr/content/«-le-silence-est-d’or»-analyse-comparée-du-droit-de-ne-pas-participer-à-sa-propre-incriminat
  6. Article 171: Il y a nullité lorsque la méconnaissance d'une formalité substantielle prévue par une disposition du présent code ou toute autre disposition de procédure pénale a porté atteinte aux intérêts de la partie qu'elle concerne.
  7. I.e. a violation of procedural rules
  8. Article 802: “En cas de violation des formes prescrites par la loi à peine de nullité ou d'inobservation des formalités substantielles, toute juridiction, y compris la Cour de cassation, qui est saisie d'une demande d'annulation ou qui relève d'office une telle irrégularité ne peut prononcer la nullité que lorsque celle-ci a eu pour effet de porter atteinte aux intérêts de la partie qu'elle concerne.
  9. Article 172: “La partie envers laquelle une formalité substantielle a été méconnue peut renoncer à s'en prévaloir et régulariser ainsi la procédure. Cette renonciation doit être expresse. Elle ne peut être donnée qu'en présence de l'avocat ou ce dernier dûment appelé.
  10. BGH St 42, 139, 149, Cass. Crim 28 octobre 1991, JCP 1992

See Defenses, Rights of the Accused