Nullity of Procedure

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Background

Nullity of procedure is a civil law concept that is similar to the common law concept of the exclusionary rule. The fundamental principal of justice establishes the need to respond to barbarity, in whatever form through legality. This is the essence of the notion of procedure. 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 highest echelon of this process is the magistrate, which means the bench as well as the prosecution.

Acting from the bench, the judging magistrate only acquires legitimacy from a scrupulous following of the fundamental rules. More than any other, the magistrate can void an entire section of the proceedings, release a guilty man who admits responsibility, no matter what his crime, due to the rule of law being flouted to the extent that the entire case is entrenched in illegality.

This scrupulous respect of the procedure, leading when necessary to annulment, gives the judge the real power, and right, to judge all other files, 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 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 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 civilised, democratic justice.

Under the current system it is the prosecution's task to request the annulment of any doubtful elements of the proceedings, just as it is its job, at the preliminary discussions, to set out the parameters of its investigators, to give instructions, and to respect, and make others respect, the rule of law. It is also the prosecutor's mission, proscribed by the CPC, to assure that those who operate under its authority are monitored, and sanctioned of 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

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 proceure. 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 tyipcally may qualify as a nullity:

  • The rights of the human person
  • The rights of the defense
  • The principles of the judicial organisation

Textual Nullities

A textual nullity may occur if a provision for nullification is explicitly included in a country's penal code, code of criminal procedure, 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.

Substantial or Virtual Nullities

Substantial or 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 occured, 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
  • How the violation would affect public order and confidence in the judiciary.
  • The extent of the prejudice that incures because of the violation

Substantial nullity is decided on a case by case basis, though local cases may provide a guidance to the criminal defense attorney,.

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

In France, for instance, a nullity may arise if the violation affects important public interests, even if the defendant has suffered no harm from the procedural violation. These so-called "public order" nullities

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 must produce concrete proof that a procedural violation has occured. Evidence may include:

  • Statements
  • Attestations
  • Photographs, Video or other real evidence
  • Medical Reports and Medical certificates

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.


See Rights of the Accused

Notes