Cassation No

(1, 2) Offenses Related to Narcotics and Psychotropic Substances: "Possession of narcotics with the intention of abusing them: Recidivism."

(1) The commission of a second offence involving the abuse of psychotropic substances within three years. Its impact. Aggravating penalty. Legal basis. Article 41/3 of the Law on Combating Narcotics and Psychotropic Substances.

(2) The appellant has been conclusively proven to have committed the crime of abusing psychotropic substances for the second time within three years of the initial offence. Consequently, he is liable to the penalties outlined in Article 41/3 of the Law on Combating Narcotics and Psychotropic Substances. This is due to his classification as a recidivist, with no evidence of rehabilitation, penalty extinguishment by the statute of limitation, issuance of a comprehensive pardon, or the enactment of a new law justifying the criminalisation or deletion of the act. The contested ruling contravenes the aforementioned principles, constituting an error in the application of the law that necessitates its reversal.

1- It is prescribed, pursuant to the provisions of Article 41/3 of Decree-Law No. 30 of 2021 on Combating Narcotics and Psychotropic Substances, that

“...... 2- If the offender commits any of the acts stipulated in the preceding clause for the second time within a period not exceeding three years from the date of committing the act for the first time, the penalty shall be imprisonment for a period of not less than six months and a fine of not less than thirty thousand dirhams and not exceeding one hundred thousand dirhams.”

2- Whereas, in light of the existing evidentiary documentation, it is substantiated that the respondent committed the offence of abusing a psychotropic substance (methamphetamine) and faced legal proceedings. During the session held on 24/3/2021, the court of first instance initially decreed a three-year imprisonment term, coupled with the revocation of his driving privileges. Subsequently, in the appellate proceedings, designated as No. 101 of 2021 and held on 20/4/2021, the judgment was amended to a two-year imprisonment sentence, with the annulment of the penalty restricting his right to drive. Consequently, the respondent is characterised as a recidivist, lacking substantiated evidence of rehabilitation, and the penalty has not been extinguished due to the passage of time, as governed by Article 315/3 of the Criminal Procedure Law. Additionally, no comprehensive pardon has been granted concerning the respondent, and the enactment of the new Law No. 30 of 2021 did not repeal or permit the criminalisation of the conduct forming the basis of the previous charge. Consequently, its criminal consequences persist, warranting the application of the punishment delineated in Article 41/3 of the aforementioned law. Given that the appealed ruling sentenced the respondent to three months' imprisonment without clarifying the rationale for disregarding the appellant's precedents, it has erred in the application of the law necessitating its reversal as to the part relating to the imposed punishment on the respondent.

The Court,

Whereas in the facts, as apparent pursuant to the perusal of the contested ruling and the remaining documents, the Public Prosecution levelled accusations against the appellant, alleging that on 18/9/2020 in the District of.......... City:

1- The appellant, being subject to periodic examination procedures mandated by a decision of the Minister of the Interior, unlawfully abused a psychotropic substance (methamphetamine, diazepam) in circumstances other than those permitted by law, as indicated by the investigations.

2- He unlawfully possessed, with the intention of abuse, a psychotropic substance (methamphetamine) in circumstances other than those permitted by law, as outlined in the investigations.

The Public Prosecution invoked the application of Articles 1, 6, 7, 34, 39, 40, 56, 59 bis 1/1-4, 65 of the Federal Law on Combating Narcotics and Psychotropic Substances and its amendments, Item No. 9 of Table 5, and Item No. 20 of Table 8 attached to the aforementioned law. Additionally, it referenced Article 7, Paragraph a, of Ministerial Decision No. 303 of 2018 concerning the Rules and Procedures for Periodic Examination of Abusers of Narcotics and Psychotropic Substances.

During a session held on 22/3/2021, the court, in the presence of the appellant:

1- Sentenced ----- to a two-year imprisonment term for the charges related to the abuse and possession of psychotropic substances and narcotics with the intent of abuse, due to connection, and imposed on him to pay judicial fees.

2- Ordered the confiscation of the seized drugs and psychotropic substances.

Discontent with this ruling, the appellant lodged an appeal.

On 20/4/2021, the Federal Court of Appeal, in Appeal No. 102 of 2021:

1- Accepted the appeal in form.

2- On the merits, rejected the appeal, confirming the appealed ruling and imposed on the appellant the obligation to pay judicial fees.

Subsequently, the appellant sought a review of the sentence following the issuance of a more favourable law for him.

In a session on 4/4/2022, the Court of Appeal ruled on the petition to amend the sentence, imposing a three-month imprisonment term for the two charges against the appellant, due to connection, and mandated him to pay judicial fees.

Dissatisfied with this decision, the Public Prosecution filed the present appeal in cassation.

The Public Prosecution contends that the contested ruling erred in the application of the law by modifying the sentence from two years' imprisonment to three months' imprisonment despite the appellant's prior conviction, in violation of Article 41, Paragraph 2 of Decree-Law No. 30 of 2021 on Combating Narcotics and Psychotropic Substances. Consequently, the Public Prosecution urges the reversal and remand of the contested ruling.

Whereas the objection holds merits, since it is prescribed, pursuant to the provisions of Article 41/3 of Decree-Law No. 30 of 2021 on Combating Narcotics and Psychotropic Substances, that

“...... 2- If the offender commits any of the acts stipulated in the preceding clause for the second time within a period not exceeding three years from the date of committing the act for the first time, the penalty shall be imprisonment for a period of not less than six months and a fine of not less than thirty thousand dirhams and not exceeding one hundred thousand dirhams.”

Whereas, in light of the existing evidentiary documentation, it is substantiated that the respondent committed the offence of abusing a psychotropic substance (methamphetamine) and faced legal proceedings. During the session held on 24/3/2021, the court of first instance initially decreed a three-year imprisonment term, coupled with the revocation of his driving privileges. Subsequently, in the appellate proceedings, designated as No. 101 of 2021 and held on 20/4/2021, the judgment was amended to a two-year imprisonment sentence, with the annulment of the penalty restricting his right to drive.

Consequently, the respondent is characterised as a recidivist, lacking substantiated evidence of rehabilitation, and the penalty has not been extinguished due to the passage of time, as governed by Article 315/3 of the Criminal Procedure Law. Additionally, no comprehensive pardon has been granted concerning the respondent, and the enactment of the new Law No. 30 of 2021 did not repeal or permit the criminalisation of the conduct forming the basis of the previous charge. Consequently, its criminal consequences persist, warranting the application of the punishment delineated in Article 41/3 of the aforementioned law. Given that the appealed ruling sentenced the respondent to three months' imprisonment without clarifying the rationale for disregarding the appellant's precedents, it has erred in the application of the law necessitating its reversal as to the part relating to the imposed punishment on the respondent with remand.