Difference between revisions of "Nullity of Procedure"

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See [[Defenses]], [[Rights of the Accused]]

Revision as of 12:12, 23 November 2010

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

Classification of Nullities

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: Requéte de nullité de procédure (Burundi) (PDF) . This is especially important when the violation involves breaches of fundamental rights such as the right to physical integrity.

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.

Notes

  1. Articles 100-7 French Criminal Procedure Code.

See Defenses, Rights of the Accused