Difference between revisions of "Nullity of Procedure"
From Criminal Defense Wiki
Jump to navigationJump to searchCmattesich (talk | contribs) |
Cmattesich (talk | contribs) |
||
| Line 18: | Line 18: | ||
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 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 | + | 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 | + | In practice, and without being exhaustive, within regular criminal procedures, three major domains typically may qualify as a nullity: |
* The rights of the human person | * The rights of the human person | ||
* The rights of the defense | * The rights of the defense | ||
| − | * The principles of the judicial | + | * The principles of the judicial organization |
===Textual Nullities=== | ===Textual Nullities=== | ||
| Line 28: | Line 28: | ||
<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 extract a confession from the defendant. Although exact textual nullities will vary from country to country and will depend very much on the | + | In this case, nullity could arise if the police utilized torture to extract a confession from the defendant. Although exact textual nullities will vary from country to country and will depend very much on the criminal procedure code, several categories of procedure are typically included as textual nullities: 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=== | ||
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 | + | When assessing whether a substantial nullity has occurred, the court looks at: |
*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. | *How the violation would affect public order and confidence in the judiciary. | ||
| − | *The extent of the prejudice that | + | *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 | + | 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: | In France, "substantial nullity" was first codified in 1993: | ||
