Nullity of Procedure
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.
Types of Nullity
There are several types of nullity that are recognized in the civil law system. Nullification of procedures may be explicitly stated or implied by the criminal procedure code, penal code, or the constitution.
There is no full list of all the circumstances that may result in a nullity of procedure. Each party in the judicial process must highlight violations of procedure and request that they be sanctioned as such. Note, however, that not all (minor) infractions of procedure will justify an annulment. Following is a short list of the types of nullities that could be recognized in a civil law jurisdiction. In practice, and without being exhaustive, within regular criminal procedures, three major domains typically may qualify as a nullity:
- The rights of the person
- The rights of the defense
- The principles of the judicial organization
Textual Nullities
A textual nullity may occur if a provision for nullification is explicitly included in a country's penal code, criminal procedure code, constitution or other provision. For instance, if a country adopted the Convention Against Torture in its entirety, Article 15 of CAT could provide the basis for textual nullity:
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
In this case, nullity could arise if the police utilized torture to obtain a confession from the defendant. Although exact textual nullities will vary from country to country and will depend very much on the specific criminal procedure code, several categories of procedure are typically included as textual nullities, including: procedures concerning search and seizure[1] and telephone wiretaps of a lawyer's office.[2]
Substantial or Virtual Nullities
Substantial Nullities, sometimes called Virtual Nullities, are not found in penal codes, procedure codes or constitutions. Substantial Nullity may occur if the procedural violations have violated "substantial" provisions of the penal code, even though the code provides no explicit procedure for nullification.
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
Substantial nullity is decided on a case by case basis, though local cases may provide some guidance to the criminal defense attorney.
In France, "substantial nullity" was first codified in 1993:
There 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[3]
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 that 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.
Proceedings that infringe upon the following in one way or another must not be respected or validated:
- The public order of the judiciary
- The presumption of innocence
- The right to a just, impartial and fair trial
- The integrity of the person
- The rights of the defense
- The substantial formalities after the grievance is caused
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. These are sometimes called Public Order Nullities because the rational behind the nullity is tied more closely to public order than the rights of the defendant.
Remedies for Procedural Violations
A magistrate may remedy a procedural violation in a number of ways. First, the magistrate may use disciplinary sanctions to penalize a judge, police officer, or clerk for the error. Second, if the procedural violation is substantial enough, they may trigger criminal sanctions. Finally, the injured party may bring a case for civil damages.
The final remedy for a procedural violation is a procedural sanction such as exclusion of the evidence or nullification/annulment of the entire proceeding. Procedural sanctions may be used with both textual, substantial, and public order nullities. 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.
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.
Raising Nullity in a Criminal Proceeding
A criminal defense attorney who recognizes either a textual, substantial, or public order nullity, should raise the nullity at the earliest possible time. Nullification should be raised regardless of whether the criminal procedure code provides a mechanism to raise the issue.
Examples
See Defenses, Rights of the Accused
Notes
- ↑ French Criminal Procedure Code Article 56, 56-1, 57, and 59
- ↑ French Criminal Procedure Code Article 100-7
- ↑ French Criminal Procedure Code 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.
