Appeal in Cassation No. 1123 of 2019 Penal
Issued on 18/02/2020
Court Panel: Presided by Judge Mohammed Abdul Rahman Al Jarrah - Chief Judge of the Circuit - with the membership of judges Abdul Hak Ahmed Yammine and Ahmed Abdullah Al Mulla.
1- Considering the litigation procedures of public order that the Court objects thereto sua sponte despite not being raised by the litigants.
2- The judgment rendered in the absence of the Defendant who was not detained or notified of the judgment until the Defendant recovers his right of objection to the first instance judgment rendered in his absence before the Appeal of the Public Prosecution.
3- Considering the contested judgment as defective for violation of the Law due to the fact that the Court did not suspend the appeal of the Prosecution until after the date of objection that were still extended for the Defendant as he was not detained, did not object and was not notified of the judgment in absentia rendered by the Court of First Instance.
Procedures. Public order. Appeal. Judgment “in absentia”. “Miscarriage of justice”. Objection “judgments subject to objection”. Reversal “of the accepted grounds”.
- Litigation procedures of the public order shall be opposed thereto by the Court sua sponte, even if not raised by any of the litigants.
- Appeal by the Public Prosecution of the judgment rendered in the absence of the Defendant who was not detained or notified of the judgment. It shall be postponed until the Defendant recovers his right of objection to the first instance judgment rendered in his absence. Effect of violation of the same, the judgment is defective for violation of the Law and does not replace settlement of the ruled fine unless his notification of the judgment is proved.
- Example of defective causation for violation of the Law.
Whereas it is prescribed that the litigation procedures of the public order shall be opposed thereto by the Court sua sponte, even if not raised by any of the litigants. Whereas it is prescribed in the jurisdiction of this Court that the appeal by the Public Prosecution of the judgment rendered in the absence of the Defendant that was not detained or was not notified of the judgment, shall be suspended or postponed until the Defendant uses his right of objection to the first instance judgment rendered in his absence and if the Court of Appeal ruled on the same and its judgment is defective in violation of the Law and shall be reversed, this shall not replace the payment of the ruled fine unless it was proved that he was notified of the judgment issued in absentia of missing the dates of appeal. Thus, whereas the documents did not contain a proof of arrestment of the Defendant or that he lodged an opposition or announced in absentia the judgment rendered by the Court of First Instance and the dates of objection for the Defendant were still extended, and the Court does not meet the legal duty of suspending the appeal of the Prosecution until the dates of objection are missed, then the judgment is defective for violating the Law and shall be reversed.
The Court,
Whereas, in the facts - as apparent in the contested judgment and the documents of the appeal in cassation- the Public Prosecution referred the Respondent and others to Penal Court stating that on 09/12/2018 at Ajman Directorate,
in his capacity as sponsor of the first and second Defendants, he helped them stay in the country illegally after expiry of their residence permit without renewal thereof or leaving the country within the prescribed period or payment of the fine as stated in the investigations.
The Public Prosecution requested his punishment according to Articles 1, 12/1, 21/1.3 and 36 of Law no. 6 of 1973 on the Entry and Residence of Foreigners.
The Court of First Instance ruled, on 29/08/2019, in absentia, to compel the Respondent to pay a fine of one thousand and one hundred Dirhams for the accusation assigned thereto. The Public Prosecution appealed this judgment under appeal no. 1050 of 2019 and the Ajman Federal Appeal Court ruled, on 08/12/2019, to amend the appealed judgment and compel the Respondent to pay a fine of one hundred thousand Dirhams for the accusation assigned thereto. The Public Prosecution appealed this judgment by appeal in cassation.
Whereas it is prescribed that the litigation procedures of the public order shall be opposed thereto by the Court sua sponte, even if not raised by any of the litigants.
Whereas it is prescribed in the jurisdiction of this Court that the appeal by the Public Prosecution of the judgment rendered in the absence of the Defendant that was not detained or was not notified of the judgment, shall be suspended or postponed until the Defendant uses his right of objection to the first instance judgment rendered in his absence and if the Court of Appeal ruled on the same and its judgment is defective in violation of the Law and shall be reversed, this shall not replace the payment of the ruled fine unless it was proved that he was notified of the judgment issued in absentia of missing the dates of appeal. Thus, whereas the documents did not contain a proof of arrestment of the Defendant or that he lodged an opposition or announced in absentia the judgment rendered by the Court of First Instance and the dates of objection for the Defendant were still extended, and the Court does not meet the legal duty of suspending the appeal of the Prosecution until the dates of objection are missed, then the judgment is defective for violating the Law and shall be reversed along with referral.

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