Cassation No. 629 of 2019 - Penal
Issued on 16/03/2020
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.
1- The Court of Cassation may not examine the contested judgment, regardless of its violation of the law or error in its application, before verifying that the cassation is admissible and accepted in form.
2- The effect of the Public Prosecution’s forfeiture of its right to file an appeal against the judgment of the court of first instance.
3 - The appealed judgment confirming the judgment of the court of first instance may not be subject to cassation, since the Public Prosecution did not file an appeal against it, rather the respondent filed it alone.
Court of Cassation. Ruling "admissibility" "inadmissibility thereof." Public Prosecution. Appeal. Force of res judicata. Public Order.
- 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.
- 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.
The Court
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.
- 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.

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