Cassation
No. 629 of 2019 - Penal
Panel:
Presided by Mr. Judge / Mohamed Abdel-Rahman Al-Jarrah - Chief Judge of the
Circuit - with the membership of Judges / Abdul-Haq Ahmed Yammine and Ahmed
Abdullah Al-Mulla.
Court
of Cassation. Ruling "admissibility" "inadmissibility thereof." Public
Prosecution. Appeal. Force of res judicata. Public Order.
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The Court of Cassation. May examine the contested judgment. Condition therefor.
It shall be deemed defective for having violated the law or erred in its
application after verifying that the cassation is admissible and accepted in
form.
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The Public Prosecution. If it forfeits its right to file an appeal against the
judgment of the court of first instance. Being the normal method to rectify the
judgment's error in the application of the law. Effect thereof. This judgment
acquires the force of res judicata towards it and may not be challenged by way
of cassation. Since the appealed judgment issued in the appeal filed by the
accused confirmed the judgment of the court of first instance. Meaning thereof.
Resorting to this method of appeal. Effect thereof. The Supreme Court shall rule
its inadmissibility for being related to the public order.
Whereas
it is prescribed - as per the ruling of this court - that the Court of Cassation
may not review the contested judgment, even it is deemed defective on the
grounds of its violation of the law or error in its application, before
verifying that the appeal is admissible and accepted in form. It is also
prescribed that if the Public Prosecution forfeits its right to file an appeal
against a judgment of the court of first instance, which is the normal method to
rectify the judgment's violation of the law or error in its application, the
judgment acquires the force of res judicata towards it and it may not file an
appeal in cassation against it, as long as the appealed judgment issued in the
appeal filed by the accused confirmed the judgment of the court of first
instance, whereby if it files an appeal in cassation against it, said cassation
shall not be admissible, and the Supreme Court shall rule its inadmissibility
sua sponte for being related to the public order.
Whereas
it was proven from the notes of the contested judgment and all documents that
the Public Prosecution did not file an appeal against the judgment issued by the
court of first instance, but rather the respondent filed it alone, and that the
contested appealed ruling confirmed this judgment; therefore, the appealed
judgment has acquired the force of res judicata towards the Public Prosecution,
and consequently, the appealed judgment confirming the judgment issued by the
court of first instance may not be challenged by way of cassation, and
consequently, the present appeal in cassation filed by the Public Prosecution
shall not be admissible.
Whereas
in the facts - as apparent in the contested judgment and all documents - the
Public Prosecution accused the respondent, of having on 10/08/2017, in the Abu
Dhabi Department:
Possessed
with the intention of trafficking a narcotic (Indian cannabis) in cases other
than those authorised by law.
Possessed
with the intention of trafficking psychotropic substances (methamphetamine,
pregabalin) in cases other than those authorised by law.
Abused
narcotics (methamphetamine and tetrahydrocannabinol - the active ingredient in
cannabis) in cases other than those authorised by law.
And
requested his punishment according to Articles (1, 6, 7, 34, 39, 40/1, 49 / 2-3,
56, 63, 65) of the Law No. 14 of 1995 on Combating Narcotics and Psychotropic
Substances and its amendments, and Tables (1, 5, 6, 8) attached to the
aforementioned Law.
In
the session dated 17/12/2018, the Court of First Instance sentenced the
respondent to life imprisonment for the first and second charges for being
connected, and to imprisonment for a period of two years and a fine of ten
thousand dirhams for the third charge, with confiscation of the items seized and
expulsion of the accused from the state after execution of the penalty and
payment of the fee legally due.
The
convicted person filed an appeal against this ruling under No. 908 of
2018.
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In the session dated 24/06/2019, the Court of Appeal ruled to accept the appeal
in form, and in the merits: to reject it and to confirm the appealed ruling and
imposed on the appellant to pay the judicial fee. This ruling was not accepted
by the Public Prosecution, and therefore, it filed against it the present appeal
in cassation.
Whereas
the Public Prosecution objects to the appealed ruling stating that it violated
the law and erred in its application, since it confirmed the appealed judgment
convicting the respondent of the crime of possessing narcotics (methamphetamine,
Pregabalin) and sentencing him to life imprisonment without the fine, therefore,
the contested judgment shall be deemed defective, and consequently, it shall be
reversed.
Whereas,
this cassation is inadmissible, since
it is
prescribed - as per the ruling of this court - that the Court of Cassation may
not review the contested judgment, even it is deemed defective on the grounds of
its violation of the law or error in its application, before verifying that the
appeal is admissible and accepted in form.
It
is also prescribed that if the Public Prosecution forfeits its right to file an
appeal against a judgment of the court of first instance, which is the normal
method to rectify the judgment's violation of the law or error in its
application, the judgment acquires the force of res judicata towards it and it
may not file an appeal in cassation against it, as long as the appealed judgment
issued in the appeal filed by the accused confirmed the judgment of the court of
first instance, whereby if it files an appeal in cassation against it, said
cassation shall not be admissible, and the Supreme Court shall rule its
inadmissibility sua sponte for being related to the public order.
Whereas
it was
proven from the notes of the contested judgment and all documents that the
Public Prosecution did not file an appeal against the judgment issued by the
court of first instance, but rather the respondent filed it alone, and that the
contested appealed ruling confirmed this judgment; therefore, the appealed
judgment has acquired the force of res judicata towards the Public Prosecution,
and consequently, the appealed judgment confirming the judgment issued by the
court of first instance may not be challenged by way of cassation, and
consequently, the present appeal in cassation filed by the Public Prosecution
shall not be admissible, and the present court rules its inadmissibility sua
sponte.