Cassation No

(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.