Difference between revisions of "Nullity of Procedure"

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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.
 
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:
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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
 
*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.
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*How the violation would affect public order and confidence in the judiciary
 
*The extent of the prejudice that occurs because of the violation
 
*The extent of the prejudice that occurs because of the violation
  
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In France, "substantial nullity" was first codified in 1993:
 
In France, "substantial nullity" was first codified in 1993:
  
<blockquote>''There is nullity whenever the violation of a substantial formality prescribed either by this codeor by any other provision of the criminal procedure has caused prejudice to the party invoking it''<ref> French Criminal Procedure Code Article 177</ref></blockquote>
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<blockquote>''There is nullity whenever the violation 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''<ref> French Criminal Procedure Code Article 177</ref></blockquote>
  
The absence of an explicit provision for substantial nullities does not prevent the defense lawyer from using raising nullification as a strategy for a defendant. Criminal defense lawyers working in civil law jurisdictions that do not formally recognize nullification may employe 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.
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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:
 
Proceedings that infringe upon the following in one way or another must not be respected or validated:

Revision as of 12:45, 6 September 2010