Cassation
No. 333 of 2022 - Penal
Court
Panel: Presided over by Mr. Judge Muhammad Abd al-Rahman al-Jarrah, “Chief
Judge of the Circuit”, with Messrs. Judges Ranfi Muhammad Ibrahim and
Hassan bin al-Arabi Faydi as counsellors.
(1,
2) Cassation “Cassation against rulings: judgments that may not be
appealed through cassation: rulings that are not final.”
(1)
The ruling issued in the case may be contested through opposition by the
accused. Effects thereof. However, the Public Prosecution is barred from seeking
cassation against it. This limitation stems from the principle that only final
rulings issued by the Court of Appeal are subject to cassation, as outlined in
Article 244 of the Criminal Procedure Law.
(2)
It is established that the contested judgment was rendered in absentia on the
lapse of the appeal and the appellate opposition was filed by the convict. The
ruling of lapse of the appeal may not be appealed through cassation. The Public
Prosecution's contravention of this principle renders the appeal in cassation
impermissible.
1-
It is legally established - as per the ruling of this court - that if a ruling
in a case is subject to appeal through opposition by the accused, the Public
Prosecution is prohibited from filing an appeal in cassation until the
opposition has been decided or the deadline for opposition has expired, in
accordance with the provisions of Article 244 of the Criminal Procedure Law.
This limitation applies specifically to appeals in cassation against final
rulings issued by the Court of Appeal in a felony or misdemeanour.
2-
In the present case, and whereas it is proven pursuant to the perusal of the
documents, that the contested ruling was rendered in absentia, on the lapse of
the appeal on 17/3/2022. On the same date, the convict submitted Appellate
Opposition No. 16 of 2022, and the Court of Appeal issued its ruling on
19/5/2022. The Court of Appeal accepted the appellate opposition in form but
rejected it on the merits, thereby confirming the ruling subject to the
opposition. Based on the foregoing, and whereas the Public Prosecution's appeal
in cassation was directed against the appeal ruling issued in absentia on
17/3/2022, it becomes evident that the appeal was filed against a ruling that,
at the time of filing, was not appealable through cassation. This is because the
opposition had not been decided until 19/5/2022, and the deadline for opposition
was still valid when the Public Prosecution lodged the appeal in cassation
against a ruling issued in absentia. Consequently, the cassation appeal is
deemed impermissible under these circumstances.
Whereas
in the facts - as apparent in the contested ruling and the remaining documents -
the Public Prosecution levelled accusations against the respondent (hereinafter
referred to as "the accused"). It alleged that, prior to 7/1/2019, within the
confines of the department of...:
The
accused illicitly appropriated the sum of 2,150 dirhams through the use of a
document (Check No. 5 issued by [Bank Name]), employing fraudulent methods and
assuming an inaccurate capacity. This conduct was likely to deceive the victim
[Name] and coerce him into relinquishing the specified sum, as delineated in the
investigative proceedings.
The
Public Prosecution sought his punishment in accordance with the provisions of
Article 399/1 of the Penal Code.
In
the session dated 19/1/2022, the court of first instance, in absentia, ruled to
impose a one-month imprisonment sentence upon the respondent for the
aforementioned charge.
Subsequently,
the convict lodged Opposition No. 20/2022 against this judgment. In a session
held on 14/2/2022, the court of first instance ruled to accept the opposition in
form, and on the merits, to cancel the contested judgment subject to the
opposition. In its place, the court decreed a new judgment, mandating the
respondent (the accused) to remit a financial penalty amounting to ten thousand
dirhams for the charge brought against him.
Unsatisfied
with this outcome, the convict initiated an appeal under No. 169 of 2022. On
17/3/2022, the Ajman Federal Court of Appeal, in absentia, pronounced the lapse
of the appeal submitted by the respondent due to his failure to file it within
the stipulated timeframe for hearing the appeal.
In
the session dated 17/3/2022, the convict submitted Appellate Opposition No. 16
of 2022. Subsequently, on 19/5/2022, the Ajman Court of Appeal rendered a
decision to accept the appellate opposition in form, and on the merits, to
reject it and confirm the ruling subject to the opposition.
On
23/3/2022, the Public Prosecution contested the ruling issued on 17/3/2022, on
the lapse of the appeal on the grounds that the accused failed to personally
submit it for execution.
Whereas
the prosecution posits an objection to the contested judgment, contending that
it violated the law. Specifically, it asserts that the judgment erred in
adjudicating on the appeal while treating it as an in absentia ruling, despite
the fact that the court of first instance had annulled the judgment rendered in
absentia and subsequently issued a new judgment in the accused's presence,
imposing a fine. This perceived inconsistency renders the contested judgment
defective and necessitates its reversal.
It
is legally established - as per the ruling of this court - that if a ruling in a
case is subject to appeal through opposition by the accused, the Public
Prosecution is prohibited from filing an appeal in cassation until the
opposition has been decided or the deadline for opposition has expired, in
accordance with the provisions of Article 244 of the Criminal Procedure Law.
This limitation applies specifically to appeals in cassation against final
rulings issued by the Court of Appeal in a felony or misdemeanour.
In
the present case, and whereas it is proven pursuant to the perusal of the
documents, that the contested ruling was rendered in absentia, on the lapse of
the appeal on 17/3/2022. On the same date, the convict submitted Appellate
Opposition No. 16 of 2022, and the Court of Appeal issued its ruling on
19/5/2022. The Court of Appeal accepted the appellate opposition in form but
rejected it on the merits, thereby confirming the ruling subject to the
opposition. Based on the foregoing, and whereas the Public Prosecution's appeal
in cassation was directed against the appeal ruling issued in absentia on
17/3/2022, it becomes evident that the appeal was filed against a ruling that,
at the time of filing, was not appealable through cassation. This is because the
opposition had not been decided until 19/5/2022, and the deadline for opposition
was still valid when the Public Prosecution lodged the appeal in cassation
against a ruling issued in absentia. Consequently, the cassation appeal is
deemed impermissible under these circumstances.