Cassation No

(1 - 4) Defence: “The Plea of Non-Admissibility Due to Previous Adjudication.” Liability: “Criminal Liability of Juristic Persons.” Court: “The Trial Court and its Authority to Grasp the Reality in the Case.”

(1) Ruling on the Non-Admissibility of the Case Due to Previous Adjudication. Prerequisites for such a ruling. Essential conditions include identical subject matter, parties, and grounds between the two cases. The contested ruling scrutinised the appellant's defence and determined a distinction in subject matter between the two lawsuits. Outcome. Challenging the ruling based on deficiencies in reasoning and breach of the right of defence. Inadmissible.

(2) Understanding the Reality in the Case and Evaluating Evidence and Presumptions in Discretionary Crimes. Falling within the Jurisdiction of the Trial Court. Prerequisite for Such Authority.

(3) Crimes Committed on Behalf of or in the Name of Juristic Persons. Criminal liability extends to their representatives or agents. Legal basis: Article 66 of the Federal Penal Code.

(4) The contested ruling convicted the appellant, imposing closure of his facility and cessation of its activities without adjusting the situation of those sponsored by it. Grounded in his assumed liability for the committed error, supported by justifiable reasons and documented facts. Valid. Objecting to the ruling based on reasoning deficiencies related to the absence of liability and lack of evidence is unfounded.

1- It is established, as per the ruling of the Federal Supreme Court, that the plea of inadmissibility due to previous adjudication necessitates a congruence in the subject matter, parties, and grounds between the two cases. If any of these elements deviates, the essential unity between the two cases will not be deemed materialised. In this instance, the contested ruling scrutinised and addressed this plea, delivering a valid response subsequent to an examination of the factual circumstances. It concluded that the initial case pertained to the withholding of workers' wages, distinct from the current case involving the closure of the facility without adjusting the situation of those sponsored by it. This distinction in the elements of each charge renders the accusation untenable.

2- It is established that the authority to comprehend the reality in the case and evaluate the evidence and presumptions in discretionary crimes lies within the jurisdiction of the trial court. This is contingent upon the court grounding its ruling on justifiable reasons sufficient to support it.. The court is not obligated to independently address the arguments and statements of the opposing parties, provided that a response is implicitly inferred from its conclusion.

3- It is established, in accordance with the stipulations of Article 66 of the Federal Penal Code, that representatives or agents of juristic persons bear criminal liability for offences committed on behalf of or in the name of juristic persons.

4- Given the circumstances, and in light of the documented evidence, it is established that the Public Prosecution brought the appellant to criminal trial based on his capacity as a representative of a building contracting facility. The charges revolved around the closure of the facility and cessation of its activities without adjusting the situation of those sponsored by it. The liability of juristic persons, in this context, is contingent upon the actions of their representatives, and this liability is predicated on the assumption of wrongdoing against the representative. It is crucial to note that this assumption does not preclude the personal punishment of the perpetrator with the prescribed penalties, as articulated in Article 65 (corresponding to Article 66 of the Law on Crimes and Penalties), which stipulates, “This does not prevent the perpetrator of the crime from being punished personally with the penalties prescribed for it in the law.”

The appellant, not contesting his role as a representative of the company and the closure of the company, argued that he had been previously tried in a related matter. He contended that the current case differed from the earlier one, where the ruling culminated in his conviction for the crime of closing the facility in his capacity as a representative. This argument is grounded on the validity of the incident, which was proven in a legally and factually sound manner, supported by justifiable reasons and documented evidence. Consequently, the objection raised by the appellant is essentially a disagreement regarding the validity of the incident. The trial court, having addressed the defence raised by the appellant, established evidence to support its ruling, rendering the objection unfounded.

Whereas in the facts, as apparent pursuant to the perusal of the contested ruling and the remaining documents, that the Public Prosecution accused the appellant of an offence committed on a date prior to 3/2/2021 in the Department of .......

Specifically, in his capacity as a representative of a building contracting facility...., he was charged with closing the facility and suspending its activity without adjusting the situation of those sponsored therein.

The Public Prosecution sought his punishment under Articles 181 bis 1, paragraph 1, clause B, and 184 of Federal Law No. 8 of 2007, amending certain provisions of Federal Law No. 8 of 1980 on the Regulation of Labour Relations.

The court of first instance, in the appellant's presence, ruled to impose a fine of fifty thousand dirhams on him for the mentioned charge and mandated the payment of the prescribed fee. The appellant appealed this decision with Appeal No. 289 of 2021. In the session held on 1/9/2021, the court confirmed the ruling. Subsequently, the appellant filed an appeal in cassation under No. 1046 of 2021, penal.

In a session dated 2/11/2021, the Federal Supreme Court decided to reverse the ruling with remand. In the session held on 22/2/2022, the court of next instance, unanimously and in the appellant's presence, ruled to reject the appeal and confirm the appealed ruling. The appellant then filed the present appeal in cassation, and the Public Prosecution submitted a memorandum of opinion, urging the rejection of the cassation.

Whereas the cassation was based on one of three grounds, asserting that the contested ruling violated the law and suffered from deficiencies in reasoning, flaws in inference, and a breach of the right of defence. This occurred when it confirmed the decision of the court of first instance, although the appellant upheld that the case shall not be heard due to being previously adjudicated. The appellant emphasised the significance of the accusation elements outlined in the referral order, arguing the absence of crime elements, lack of evidence in the documents, and his personal immunity as the company operated as a limited liability entity. The appellant further contended that the ruling disregarded his request to appoint a specialised expert to scrutinise the company's financial records. The purpose was to ascertain whether the complainants were entitled to the amounts claimed and whether the company possessed the funds to satisfy such claims. This omission, according to the appellant, rendered the ruling flawed and necessitated its reversal.

Whereas the objection related to the inadmissibility of the criminal case for being previously adjudicated is invalid, since it is established, as per the ruling of the Federal Supreme Court, that the plea of inadmissibility due to previous adjudication necessitates a congruence in the subject matter, parties, and grounds between the two cases. If any of these elements deviates, the essential unity between the two cases will not be deemed materialised.

In this instance, the contested ruling scrutinised and addressed this plea, delivering a valid response subsequent to an examination of the factual circumstances. It concluded that the initial case pertained to the withholding of workers' wages, distinct from the current case involving the closure of the facility without adjusting the situation of those sponsored by it. This distinction in the elements of each charge renders the accusation untenable.

Whereas the objection concerning the absence of criminal responsibility, the purported lack of evidence, and the alleged failure of the ruling to consider the appellant's request for the appointment of an expert, it is determined that the objection lacks validity, since It is established that the authority to comprehend the reality in the case and evaluate the evidence and presumptions in discretionary crimes lies within the jurisdiction of the trial court. This is contingent upon the court grounding its ruling on justifiable reasons sufficient to support it.

The court is not obligated to independently address the arguments and statements of the opposing parties, provided that a response is implicitly inferred from its conclusion. It is established, in accordance with the stipulations of Article 66 of the Federal Penal Code, that representatives or agents of juristic persons bear criminal liability for offences committed on behalf of or in the name of juristic persons.

Given the circumstances, and in light of the documented evidence, it is established that the Public Prosecution brought the appellant to criminal trial based on his capacity as a representative of a building contracting facility. The charges revolved around the closure of the facility and cessation of its activities without adjusting the situation of those sponsored by it. The liability of juristic persons, in this context, is contingent upon the actions of their representatives, and this liability is predicated on the assumption of wrongdoing against the representative. It is crucial to note that this assumption does not preclude the personal punishment of the perpetrator with the prescribed penalties, as articulated in Article 65 (corresponding to Article 66 of the Law on Crimes and Penalties), which stipulates, “This does not prevent the perpetrator of the crime from being punished personally with the penalties prescribed for it in the law.”