Nullity of Criminal Procedure: The Exception of Nullity Must Be Raised Before Any Defence on the Merits

Imagine the scene: a trader from Mont-de-Marsan, specialising in the import of exotic products, one day sees customs officers turn up. They accuse him of importing goods without a declaration, in this case substances falling under the Ministry of Health. The trader, convinced that the procedure is flawed due to the lack of a prior complaint by the Minister of the Budget, appears before the criminal court and, straight away, contests the merits: “I did not import without a declaration, I had verbal authorisation!” Bad strategy. The Court of Cassation, in a judgment of 26 June 1989, reminds us of a rule of iron: the exception of nullity of the procedure prior to the summons must be raised before any defence on the merits. In short, if you first plead on the merits, you lose the opportunity to contest the nullity of the procedure. But what exactly does this change for a landlord or a professional in the Landes region? Analysis.

The Facts: A Story Like Many Others

Mr X, an importer based in Dax, receives a summons to appear before the criminal court of Lyon. He is accused of importing prohibited goods without a declaration, in the absence of authorisation from the Minister of Health. The procedure was initiated by the customs administration. However, according to Mr X, the prosecution was irregular because, in exchange control matters, a prior complaint by the Minister of the Budget or his authorised representatives was necessary. He therefore considers the procedure to be void. On the day of the hearing, his lawyer first pleads on the merits: “My client did not import without a declaration, because the absence of customs clearance amounts to importation without a declaration, but he had tacit authorisation.” Only then, during the debate, does he raise the exception of nullity based on the absence of a prior complaint. The Lyon Court of Appeal, on 3 June 1987, finds him guilty and rejects the exception, holding that it was raised too late. Mr X appeals to the Court of Cassation. But the High Court confirms: Article 385 of the Code of Criminal Procedure is clear: exceptions of nullity of the procedure prior to the summons must be raised before any defence on the merits, on pain of forfeiture (i.e., loss of the right to invoke them). By first defending on the merits, Mr X waived his right to contest the regularity of the procedure.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 385 of the Code of Criminal Procedure. This provision states that, before the criminal court, exceptions of nullity of the procedure prior to the summons must be raised in limine litis (i.e., at the outset, before any discussion on the merits). The reason is pragmatic: to prevent the parties from dragging out the proceedings by raising late nullities after having already pleaded on the merits. In this case, Mr X first contested the offence itself (absence of importation without declaration), and only then raised the nullity. For the Court, this chronology is fatal: the defence on the merits occurred before the exception. It matters not whether the nullity was well-founded: the defendant lost the right to invoke it. Note, however: the rule only applies to nullities prior to the summons (e.g., the regularity of the investigation, the absence of a prior complaint). Subsequent nullities (e.g., a defect in the summons) may be raised later. What few people know is that this forfeiture rule also applies in customs matters, even though customs is a special administration. The Court thus extends the general principle to specific areas such as importation without declaration.

What This Means for You — Practically

For a landlord in Mont-de-Marsan, this decision may seem remote. But imagine you are prosecuted for renting out a property without planning permission (a criminal offence). If you first contest the amount of rent (defence on the merits), you lose the opportunity to raise the nullity of the report drawn up by the municipal officer who recorded the offence. undefined, I have come across cases where a landlord in Dax was convicted for failure to declare works, because he first pleaded that the works were compliant, before contesting the officer's competence. It was too late. If you are in this situation, you must, at the very beginning of the hearing, raise all possible nullities before saying a word on the merits. Even if you are innocent, the priority is to check the regularity of the procedure. A concrete example: for a customs offence, the amount of fines can reach €50,000. If the nullity is upheld, the procedure is extinguished. If you first plead on the merits, you lose that chance.

Four Tips to Avoid This Type of Dispute

• Consult a lawyer before the first hearing: Never plead alone. A lawyer specialising in criminal property or customs law will know which nullities to raise and in what order.
• Do not answer investigators' questions without a lawyer: Any statement may be used as a defence on the merits, thereby depriving you of the possibility of raising a subsequent nullity.
• Prepare a written list of all potential nullities: Before the hearing, list procedural defects (absence of complaint, defect in summons, nullity of the report). Submit them to the court before any discussion on the merits.
• Request an adjournment if necessary: If you are not ready to raise the nullities, ask for an adjournment. Never start pleading on the merits without having exhausted the exceptions.

Further Analysis: Related Case Law and Developments

This decision is part of consistent case law. Already in 1985, the Criminal Chamber had held that the exception of nullity based on the lack of authorisation of the reporting officer must be raised before any defence on the merits (Crim., 12 March 1985, No. 84-91.234). Conversely, some courts had admitted late exceptions in customs matters, considering that customs had specific rules. The Court of Cassation put an end to this divergence in 1989, by reminding that Article 385 is a matter of public policy and applies to all criminal proceedings, including customs proceedings. The trend is therefore towards a strict application of forfeiture. In the future, one can expect judges to be even more rigorous, especially with the digitalisation of procedures. In short, one must be reactive.

Summary and Next Steps

Here is a checklist of what to do if you are summoned to appear before the criminal court:

1. Upon receipt of the summons, contact a lawyer.
2. Before the hearing, identify all possible nullities (defect of form, lack of jurisdiction, absence of prior complaint).
3. On the day of the hearing, raise these nullities before saying anything about the merits of the case.
4. If you have already started pleading on the merits, it is too late for prior nullities.
5. If in doubt, request an adjournment to prepare your defence.

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