Nullity of Procedure: Difference between revisions

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== The implementation of nullities ==
== Raising Nullity in a Criminal Proceeding==






The Judge will then have the choice to immediately adjudicate the nullity, or to look at the incident more thoroughly and to deliver a decision based purely on the circumstances of the case.
A nullity may always be invoked at each stage of procedure following custody, as pre-trial proceedings are require the presence of the lawyer and are important in the of evocation of nullities. 
Note also that the defendant can also make observations on the custody permissory note. Hearings for provisional detention and of its prolongation, appeals, and the inquiry's interrogation are all also favourable times at which to argue for a nullity. 
It is imperative to make use of these opportunities in a case of provisional detention, during which the lawyer has a formidable weapon. Effectively, a suspect, presumed innocent, should be placed in provisional detention during proceedings that may be tainted by nullity. This idea is, on the level of principle, unacceptable.
A lawyer must then petition judges and demand that they review the validity of the procedure, even before touching upon the freedom of the accused, and even if he or she accepts responsibility for the charges.
For lawyers, this creates the problem in case development (see strategies of defense and interview). As in other cases, careful analysis of the file will reveal gaps in information (missing signatures, times of searches, etc).
Remember that case development, when dealing with nullities, still includes standard tools of witness testimony, medical certificates, etc.  Remember that the defender has two cases to demonstrate:
* the existence of  procedural violations, for which some textual basis is needed
* The existence of grievance caused to the party being defended
Assuming that the nullity is demonstrated, what are the effects?
The effects of the nullity are admittedly equal, in some degree, to the illustration of the chosen criminal politics.  The Judge, as the legislator, can be restrictive or liberal.
The question is posed is:
Is the nullity limited to the single irregular act concerned or has it stretched to the rest of the proceedings, tainting the entire structure ?
A single judge will decide based on the evidence, taking into account the seriousness of the irregularity and the consequences it could have. Therefore, a search outside of legal hours will not have the same consequences as the torture of a suspect. 
The severity of an act of physical or psychological torture and its universal prohibition under international law have lead to the creation of a specific sanction in the Criminal Procedure Code. One might question what is left in a case in which the admissions of guilt have disappeared. Certainly not much to condemn their declarer.
The freedom of the judge and of the Supreme Court must, on principle, be total and  thus can be exercised through the demonstration of a causal link between nullity and the  annulment of subsequent acts. In any case, it appears that with the gravity of certain procedural trespasses, the violation of fundamental principles should result in an automatic annulment of all acts subsequent to the nullity, and thus of the entirety of the procedure. The requirements of the causal link must be examined on a case by case basis.
The French judge, for example, finds himself half-way between the two opposing theories. He judges, for instance, that, on the one hand, a confession following an irregular search should be annulled but that experts should be allowed to refer to the voided acts. The general rule is that acts following an irregularity that do not by nature affect any other part of the procedure should not be annulled. Contrarily, the French Court of Annulment sees anything following an annulled act as void.
While this has the merit of relative clarity, this system might be judged as insufficiently principled. Many American states, in contrast, apply the 'fruits of a poisoned tree' theory strictly and the annulled act is seen as never having existed, and must at no point be referred to by either party.
We can furthermore envision , as European legislations do, that through court order ,these acts be performed again in a legal manner when there has been a nullity of procedure. In no case may an act causing a substantial nullity, which has infringed upon the integrity of the suspect or of a witness, be preformed again.
In this sphere, judicial legitimacy is born of respect of the rules.
In practice, it is useful to highlight nullities in writing whether they occur during the hearing or during meetings and pre-trial observations.
The benefit of writing down nullities is partly that it allows for the respect of adversarial proceeding principles in that, by giving a copy to the prosecution, one ensures that they know the nature of the arguments requiring response. In addition, deposing writings forces the court to respond. Furthermore, the act of deposing in writing forces the Tribunal to respond with its decision and thus allows for censure by an appeal court if need be. 
You will find at the end of this document two models of conclusions and models articulating nullities of procedure.
Finally, the plea, with the support of those writings, should be based upon fundamental principles, utilize national jurisprudence, and the previous precedent and decisions of the Supreme Court to facilitate the immediate work of the presiding judge.
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See [[Rights of the Accused]]
See [[Rights of the Accused]]

Revision as of 10:12, 24 August 2010

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.

Whilst 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

Substantial or Virtual Nullities

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 procedural violation is a procedural sanction. Procedural sanctions may be used with both textual, substantial and public order nullities.

There are a number of ways to address such instances. Firstly, there are disciplinary sanctions to with a judge, police officer or clerk at fault can be subjected. Additionally, there are then criminal sanctions that can be extended in cases of illegal searching or arrest, abusive detention, violence, torture and so on, occuring over the course of legal proceedings Finally, there are civil sanctions that can be extended by the injured party bringing a case forward in which damages are sought.

We are interested here in the most effective sanction: the procedural sanction. The procedural sanction may be used with either textual or substantial nullity of procedures. 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

The basis of substantial nullity is as follows

The severity of an procedural irregularity, whether it be a failure of provision or some other responsibility of the legal system, or an act that causes the citer of the act such grievance, he or she may be entitled to an annulment, even if the situation has not been specifically textually allowed for.

This second nullity includes nullities of public order and nullities of grievance. We can thus allow for substantial nullities resulting from ignorance of the principles relating to pubic order. These transgressions should be highlighted even if there was no direct trespass on the rights of the defence.

These sorts of transgressions may be seen in an absence of formality case, and where there is incompetence on the part of whoever committed the violation of the Code of the Judicial Organisation According to R.GARRAUD, this regards a flaw in the processes, necessary for the act to fulfil its function, for J.PRADEL those who are not protectors of the interests of concerned parties, but who are concerned with the superior interests of the judicial organisation. Reasons include but are not limited to the investigator or examining magistrate's territorial or material incompetence or a judicial ordinance of designation lacking the judge's signature. With regards to act of procedure, included are the absence of expert testimony, the absence of essential notifications, and the total absence of an examination of the accused.

Jurisprudence is established case by case. It can only result from decisions taken by the Supreme Court in accordance with the approach to nullity it will has chosen, either restrictive or permissive.

Elsewhere, substantial nullities, resulting from principles and not express in texts, are found where the right to defense has been trespassed upon.

We must therefore consider, in compensating for the absence of provision for textual nullities in the CPC, that there is nullity when the ignorance or misreading of a substantial formality has trespassed upon the interests of the concerned party. Here, we return to the notion of grievance.

The concept of grievance is fundamental in fighting against dilatory practice, consistent with actions resulting in nullities of detail.

Remember that the size of the prejudice demonstrated is more important that the severity of the irregularity.

This principal carries with it a key consequence, in that anyone who trespasses on the rights of defense by definition causes grievance.

This is equally true of elements that are cited in the code but not explicitly related to nullity: cases of custody and other control mechanisms (Articles 37 to 40 CPC), questions of evidence (Article 40, CPC), home visits, searches and seizures (Articles 67 to 73 CPC), the absence of a lawyer, the unavailability of the file, the absence of a notification of rights, of medical visits, of the availability of an interpreter for those who do not understand the language being used and so on. The above are cases of substantial nullity directly against the interests of the concerned party, infringing upon the rights of the defense. In cases of trespass upon the rights of defense, there should be an absolute presumption of grievance .

Here, we see a second degree in the sanction of nullities.

To conform to international democratic standards, it is not enough to sanction only direct trespasses on the rights of the defense. Indirect trespasses, that is instances where the accused is not put in a position to exercise fundamental rights, on these rights must also be addressed.

Simply not putting a suspect in the position to exercise his or her rights, or to exercise his or her rights effectively, should also cause nullity. For example, to not inform a suspect of the fact that he or she has the right to legal assistance constitutes a characteristic violation of defense rights, even if the suspects later says that he or she does not want a lawyer. This illustrates the difference between impartial and equal judicial systems and those that are not.


By sanctions aimed to ensure that necessary information about rights is passed on to suspects, the judge can ensure that the judiciary system progresses, or remains at a reasonable level.

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


Raising Nullity in a Criminal Proceeding

See Rights of the Accused

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