Cassations
Nos. 785 and 786 of 2022
Issued
on 26/07/2022 (Penal)
Panel:
Presided over by Mr. Judge Ahmed Abdullah Al-Mulla, Chief Judge of the Circuit,
with Messrs. Judges Muhammad Ahmed Abdel Qader and Al-Tayeb Abdel Ghafour Abdel
Wahhab as members.
(1,
2) Offences: “Crimes Related to Public Office - Falsely pretending to hold
a position and capacity.” Judgment: “Causation Defects -
Deficiencies in Reasoning.”
(1)
Falsely pretending to hold a capacity of a capacity without undertaking any of
its duties does not constitute interference in the job itself. The requisite for
such interference involves the execution of affirmative actions to commit the
encroachment intended by the legislator. Article 299 of the Law of Crimes and
Penalties.
(2)
The contested ruling convicted the appellants of the crime of falsely pretending
to hold a position in the public service based on statements in the
prosecution’s investigations and the complainant’s statements in the
evidence report. However, it failed to articulate the content of those
statements to elucidate the extent to which the elements of the crime are
present. Deficiencies in reasoning necessitating its reversal.
1-
It is prescribed, pursuant to the stipulations of Article 299 of the Law on
Crimes and Penalties, that falsely pretending to hold a position in the public
service without the performance of any associated duties is not considered
interference unless accompanied by an act deemed encroachment, which involves
the use of fraud and external manifestations calculated to engender a belief in
the identity of the perpetrator as the legitimate holder of the position he
assumes. Additionally, merely impersonating the capacity of an employee, without
affirmative actions that constitute an encroachment, does not qualify as
interference in the job, as clarified by this article.
2-
Given this context, the appealed ruling, confirmed by the contested ruling,
convicted the appellants for impersonating a public position by claiming to be
court employees. The ruling stated, “Whereas the accusation attributed to
the accused persons is definitively proven to convict them, based on the
statements of witnesses in the Public Prosecution’s investigations and the
statements of the complainant in the report of evidence and the investigations
of the Public Prosecution.” However, it failed to elucidate the content of
these statements, preventing a deduction regarding the presence of elements of
the crime. This impedes the court's ability to exercise proper oversight in
applying the law to the incident, which renders the ruling to be considered as
containing deficiencies in reasoning. Hence, the ruling necessitates reversal
and remand without further examination of the remaining grounds for
cassation.
Whereas
in the facts, as apparent pursuant to the perusal of the contested ruling and
other documents, the Public Prosecution accused the appellants that on 22/2/2022
in the district of .......: -
they
impersonated a public position by falsely claiming to be employees of....., as
detailed in the investigations.
The
Public Prosecution sought their punishment under Article 299/2 of Federal Decree
Law No. 31 of 2021, which promulgates the Crimes and Penalties Law.
In
a session held on 28/4/2022, the court of first instance, in the presence of the
accused, ruled to imprison each of them for six months for the charges against
them, while preserving the rights of the civil plaintiff.
The
convicts and the civil plaintiff lodged appeals with Appeals Nos. 398, 401,
405/2022.
In
a session dated 29/6/2022, the Court of Appeal, in the presence of the
appellants, accepted appeals Nos. 398 and 401/2022 in form, and on the merits,
modified the prison sentence to one month for the charges against them, ruled
the inadmissibility of appeal No. 405/2022.
The
appellants contested this ruling by filing the present two appeals in cassation
against it. The Public Prosecution submitted a memorandum requesting the
dismissal of both cassations.
Whereas
the appellants' objections to the contested ruling include allegations of
violation of the law, error in its application, flaws in inference, deficiencies
in reasoning, and breach of the right of defence. They contend that the ruling
convicted them despite their denial, the absence of elements of the crime, and
without adequate proof or clarification on whether they assumed public office,
interfered in it, or carried out any of its actions and requirements. These
perceived deficiencies render the ruling defective and warrant its
reversal.
Whereas
this objection holds merits, since it is is prescribed, pursuant to the
stipulations of Article 299 of the Law on Crimes and Penalties, that
“whoever falsely pretends to hold a position in the public service shall
be punished with imprisonment for a period not exceeding five years. The same
penalty shall be imposed on whoever interferes in a public position or service
or performs any of its functions or requirements without being competent or
assigned to undertake the same in order to achieve an illegal purpose or to
obtain for himself or for others an advantage of any
kind.”
This
signifies that falsely pretending to hold a position in the public service
without the performance of any associated duties is not considered interference
unless accompanied by an act deemed encroachment, which involves the use of
fraud and external manifestations calculated to engender a belief in the
identity of the perpetrator as the legitimate holder of the position he
assumes.
Additionally,
merely impersonating the capacity of an employee, without affirmative actions
that constitute an encroachment, does not qualify as interference in the job, as
clarified by this article.
Given
this context
,
the appealed
ruling, confirmed by the contested ruling, convicted the appellants for falsely
pretending to hold a position in the public service by claiming to be court
employees. The ruling stated, “Whereas the accusation attributed to the
accused persons is definitively proven to convict them, based on the statements
of witnesses in the Public Prosecution’s investigations and the statements
of the complainant in the report of evidence and the investigations of the
Public Prosecution.” However, it failed to elucidate the content of these
statements, preventing a deduction regarding the presence of elements of the
crime. This impedes the court's ability to exercise proper oversight in applying
the law to the incident, which renders the ruling to be considered as containing
deficiencies in reasoning. Hence, the ruling necessitates reversal and remand
without further examination of the remaining grounds for cassation.