Procedural nullities

Nullities are very frequently the sanction for the unlawfulness of a procedural act, and more rarely the sanction for a judge's excess of power. Nullity, as a sanction for the unlawfulness of an act, is illustrated by two decisions of the Criminal Chamber of the Court of Cassation, the first upholding it and the second dismissing it.

The weighing of narcotics and proof of grievance

In a first decision (Crim., 31 October 2017, appeal no. 17-80872), the Court of Cassation quashed the weighing operations of narcotics carried out in a flagrante delicto investigation. In breach of Article 706-30-1 of the Code of Criminal Procedure, which requires the weighing of narcotics to be performed in the presence of the person who held the substances or, failing that, of two witnesses, the weighing in this case had not been carried out in compliance with those rules and had been followed by the destruction of the narcotic substances.

This was enough for the Court of Cassation to characterise the grievance to the defendant, who could no longer request a new adversarial weighing. The decision of the investigating chamber regarding the weighing of the narcotic products was therefore quashed.

In a second decision (Crim., 28 November 2017, appeal no. 17-81736), the Court of Cassation dismissed the nullity ground in relation to telephone interceptions.

Misuse of a legal basis for interceptions

In a judicial investigation opened for drug-trafficking offences and criminal conspiracy, an investigating judge had issued in 2015 a rogatory commission, on the basis of Articles 100 et seq. of the Code of Criminal Procedure, to intercept, record and transcribe telephone communications from the IMEI handset of a phone used by the suspect and for all the lines associated with that handset (the user regularly changing SIM cards).

Lessons for the criminal defence

Considering that the interception of communications from a phone handset had been unlawfully based on Article 100 of the Code of Criminal Procedure, when it required the use of an IMSI catcher device provided for at Article 706-95-5 (and available only from the Law of 3 June 2016), the person concerned filed a request for nullity.

The Court of Cassation confirmed the investigating chamber's decision and dismissed the appeal. The device used did not match the one now described by Article 706-95-5; it was simply a matter of intercepting the communications of the telephone lines identified from a phone handset: the operation was lawfully based on Articles 100 et seq.

Nullity as a sanction for a judge's excess of power is rarer. An example is given in a decision of the Criminal Chamber (Crim., 19 September 2017, appeal no. 17-81016) quashing a decision of the investigating chamber which had not found an excess of power by the investigating judge, even though the latter, after a first appearance interview that he considered irregular for lack of audiovisual recording under Article 116-1, had repeated the act in order to record it. In doing so, the investigating judge had encroached on the powers of the investigating chamber, which alone has jurisdiction during the judicial investigation to assess the legality of acts. The excess of power was characterised; the investigating chamber's decision was quashed.