Difference between revisions of "Nullity of Procedure"
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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. | 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: | In practice, and without being exhaustive, within regular criminal procedures, three major domains typically may qualify as a nullity: | ||
| − | * The rights of the | + | * The rights of the person |
* The rights of the defense | * The rights of the defense | ||
* The principles of the judicial organization | * The principles of the judicial organization | ||
===Textual Nullities=== | ===Textual Nullities=== | ||
| − | A textual nullity may occur if a provision for nullification is explicitly included in a country's penal code, | + | 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: |
<blockquote>''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.''</blockquote> | <blockquote>''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.''</blockquote> | ||
| − | In this case, nullity could arise if the police utilized torture to | + | 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<ref>French Criminal Procedure Code Article 56, 56-1, 57, adn 59</ref> and telephone wiretaps of a lawyer's office.<ref>French Criminal Procedure Code Article 100-7</ref> |
===Substantial or Virtual Nullities=== | ===Substantial or Virtual Nullities=== | ||
