Cassation
No. 1195 of 2021
Issued
on 17/12/2022 (Penal)
Panel:
Presided over by Judge Muhammad Abd al-Rahman al-Jarraj, Chief Judge of the
Circuit, with Judges al-Hassan bin al-Arabi Faydi and al-Tayeb Abd al-Ghafour
Abd al-Wahhab as members.
(1,
2) Challenge: “Procedures for challenging criminal judgments passed in
absentia: Challenge by opposition”. Challenging the ruling considering the
opposition as void ab initio.
(1)
Verdict Declaring Opposition Void Ab Initio: Inadmissibility of Filing
Opposition. Challenge by Appeal Required. According to Article 229 of the
Criminal Procedure Law.
(2)
Considering a Ruling Passed: In-Absentia, In-Presence, or in-Default. Supported
by Facts and Recorded Session Minutes.
(3)
Absence of the Appellant in the Opposition Session and Passing a Ruling in
Absentia Declaring the Opposition as Void Ab Initio. Judgment Issued in
Absentia. Its Implications. Inadmissibility of Opposition Filing. Absence of
Notification to the Appellant in Case Documents Before Appeal Filing. Its
Impact: Avenue for Appeal Remains Open. The Contested Ruling Contravened these
Principles and Rejected the Appeal for Being Filed after the Deadline. A
Violation of the Law and Error in its Application.
1-
It is legally prescribed as per Article 229 of the Criminal Procedure Law that
“the opposition shall entail re-hearing of the case with respect to the
opposing party before the court that issued the ruling in absentia, and the
opposing party may not be harmed by his opposition. If the opposing party fails
to attend the first session specified for hearing the opposition, the opposition
shall be considered as void ab initio making any subsequent opposition against
the ruling inadmissible,” which means that the ruling issued in opposition
is considered as void ab initio, rendering any opposition inadmissible, thus
necessitating a challenge by way of appeal.
2-
It is prescribed, as per the ruling of this court, that considering the ruling
passed in absentia, in presence, or in default is contingent upon the actual
factual circumstances and the recorded minutes of the sessions of the trial
wherein such a ruling was passed.
3-
Such being the case, and whereas it is apparent, pursuant to the perusal of the
documents of the case, that the appellant failed to attend the scheduled
opposition session. Consequently, the court, ruling in absentia, declared the
opposition void ab initio, then the ruling issued shall be deemed passed in
absentia, and this renders any opposition inadmissible, adhering to the
principle that there cannot be an opposition against the opposition itself. This
leaves the avenue for appeal open, provided that the appellant has not been duly
notified of the ruling considering the opposition as void ab initio. Such being
the case, and whereas no evidence suggests the appellant's prior knowledge of
this ruling before the appeal date, the time-limit for appeal remains open. As
the contested ruling rejected the appeal for being filed after the time-limit,
then it shall be deemed as having violated the law and erred in its application,
which requires its reversal.
Whereas
in the facts, as apparent pursuant to the perusal of the contested ruling and
other documents, the Public Prosecution accused the appellant and another person
of having on 10/2/2016 and on a later date: -
-
given four checks drawn on First Gulf Bank, attached to the report to ......,
totaling 2,122,000 dirhams, in bad faith, with insufficient funds.
The
Public Prosecution sought their punishment as per Article 401/1 of Federal Penal
Code No. 3 of 1987 and Article 643 of Commercial Transactions Law promulgated by
Federal Law No. 8 of 1993.
In
a session held on 3/11/2016, the court of first instance sentenced both accused
individuals to two years of imprisonment in absentia.
The
convict (appellant) contested this ruling through opposition No. 135/2017.
In
a session held on 7/6/2017, the court of first instance dismissed the opposition
due to the absence of the opposing accused at the first opposition session,
declaring it void ab initio.
The
convict (appellant) filed an appeal against this ruling under No. 866 of 2021.
In
a session held on 17/10/2021, the Court of Appeal ruled the appeal inadmissible,
as it was lodged after the deadline.
Discontent
with this ruling, the appellant filed against it the present appeal in
cassation.
The
Public Prosecution submitted a memorandum requesting the reversal and remand of
the ruling.
Whereas
the appellant objects to the contested ruling on the grounds that it erred in
the application of the law by refusing to accept the appeal in form. He argues
that, as an inmate in the central prison.... since 11/10/2014 to the present, he
was unable to attend the opposition session or leave the prison due to his
confined state and the responsibility of law enforcement authorities for his
transportation. Hence, he asserts that the avenue for appeal remains open, which
renders the ruling defective, requiring its reversal.
Whereas
this objection holds merits, since
It is
legally prescribed as per Article 229 of the Criminal Procedure Law that
“the opposition shall entail re-hearing of the case with respect to the
opposing party before the court that issued the ruling in absentia, and the
opposing party may not be harmed by his opposition. If the opposing party fails
to attend the first session specified for hearing the opposition, the opposition
shall be considered as void ab initio making any subsequent opposition against
the ruling inadmissible,” which means that the ruling issued in opposition
is considered as void ab initio, rendering any opposition inadmissible, thus
necessitating a challenge by way of appeal.
It
is prescribed, as per the ruling of this court, that considering the ruling
passed in absentia, in presence, or in default is contingent upon the actual
factual circumstances and the recorded minutes of the sessions of the trial
wherein such a ruling was passed.
Such
being the case, and whereas it is apparent, pursuant to the perusal of the
documents of the case, that the appellant failed to attend the scheduled
opposition session. Consequently, the court, ruling in absentia, declared the
opposition void ab initio, then the ruling issued shall be deemed passed in
absentia, and this renders any opposition inadmissible, adhering to the
principle that there cannot be an opposition against the opposition itself. This
leaves the avenue for appeal open, provided that the appellant has not been duly
notified of the ruling considering the opposition as void ab initio. Such being
the case, and whereas no evidence suggests the appellant's prior knowledge of
this ruling before the appeal date, the time-limit for appeal remains open. As
the contested ruling rejected the appeal for being filed after the time-limit,
then it shall be deemed as having violated the law and erred in its application,
which requires its reversal.