Difference between revisions of "Nullity of Procedure"

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== Background ==
 
== Background ==
  
Nullity of procedure is a civil law concept that is similar to the common law concept of the [[Exclusionary Rule| 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.
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Nullity of procedure is a civil law concept that is similar to the common law concept of the [[Exclusionary Rule| exclusionary rule]]. Nullity 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 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.
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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 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.  
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This meticulous 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.  
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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 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.  
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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 to assure that those who operate under its authority are monitored, and 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.  
 
Thus, the prosecution acquires the legitimacy to judge with its desired severity against the accused, in the strictly legal sphere.  
 
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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.
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==
 
==Types of Nullity==

Revision as of 12:31, 25 August 2010