Appeal
in Cassation No. 1123 of 2019 Penal
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.
Procedures.
Public order. Appeal. Judgment “in absentia”. “Miscarriage of
justice”. Objection “judgments subject to objection”. Reversal
“of the accepted grounds”.
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Litigation procedures of the public order shall be opposed thereto by the Court
sua sponte, even if not raised by any of the litigants.
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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.
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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.
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.