Cassation No

(3) The appellant upheld his non-responsibility for the ship involved in the incident due to an executive seizure preceding the accident and its subsequent judicial sale. ‌Meritorious defence. The contested ruling overlooked this defence in reference and response thereto, constituting a deficiency in reasoning and a breach of the right of defence. This necessitates its reversal.

1- It is prescribed, as per the ruling of this court, that while the trial court holds the authority to comprehend the reality in the case, evaluate its evidence, and extract the truth from it, such actions are contingent upon the court basing its rulings on valid reasons supported by documented facts, sufficient to substantiate its decisions.

2- It is prescribed, as per the ruling of this court, that the ruling itself shall instill confidence in the reader that the court has thoroughly examined the presented evidence, as well as the pleas and defences brought before it. The court is expected to employ all available means to ascertain what it deems to be the reality and truth in the case. The court is required to address any defence that might change the formation of opinion regarding the accusation and to reply in reference and response thereto. Failure to do so renders the ruling fatally flawed and in breach of the right of defence.

3- In light of the foregoing, and whereas the appellant upheld a defence regarding his non-responsibility for the mentioned ship. He argued that an executive seizure had occurred on the ship prior to the accident, leading to its judicial sale at a public auction. The appellant substantiated this defence with documents, including a copy of the ruling issued in Executive Case No. 68/2021, awarding the auction. Given the meritorious nature of this defence, its valid examination could potentially alter the formation of opinion in the case. Consequently, the court was obligated to address and respond to this defence, either by acceptance or rejection. However, the contested ruling failed to do so. Instead, it proceeded to convict and penalize the appellant without acknowledging or responding to the defence. This constitutes a deficiency in causation and a breach of the right of defence, warranting the reversal and remand of the ruling.

Whereas in the facts - as apparent in the contested ruling and all other documents - the Public Prosecution has lodged accusations against the defendant/... It is alleged that on the 6/10/2021, within the jurisdiction of the Department of ..., and Rafkan, and in his capacity as the owner of (....) Ship, the defendant:

1- Through his negligence, caused the destruction of the movable property as detailed and assessed in the documents, which is owned by the victim/..., and imperilled the lives and well-being of the boat passengers. This was achieved by abandoning the (....) ship at sea during the night, without the presence of a crew or the operation of external lights or radar devices, resulting in the occurrence of the accident.

2- Through his negligence, inflicted harm upon the physical well-being of the victims/... and ..., by abandoning the ship – (...) – at sea during the night without the presence of a crew or the operation of external lighting or radar devices. This action led to the accident and the subsequent injury of the aforementioned individuals.

The prosecution has sought his punishment in accordance with the provisions set forth in Articles 43, 65, 343/1, 424/2, and 429 of the Federal Penal Code and its amendments.

In a session held on 22/11/2021, the court of first instance rendered a verdict, finding the accused guilty on both charges and imposing a fine of 5,000 dirhams for each charge.

Subsequently, the convicted party lodged an appeal against this judgment under Appeal No. 386/2021. In a session held on 28/2/2022, the Court of Appeal ruled to accept the appeal in form and, on the merits, decided to modify the appealed ruling into imposing a fine of five thousand dirhams for the two counts due to their connection.

The appellant filed the present appeal in cassation against this ruling, and the Public Prosecution submitted a memorandum requesting that the cassation be dismissed.

Whereas the appellant objects to the ruling stating that it erred in the application of the law, contained deficiencies in reasoning, and exhibited deficiencies in reasoning, and violated the right of defence. Specifically, the appellant asserts that the court erred in confirming the appealed judgment, which convicted and punished him for causing the destruction of movable property and compromising the safety of the two victims, by abandoning the ship (.... ..) at sea during the night without the presence of a crew or the operation of lighting or radar devices. The appellant upheld that he lacks the authority, both physically and legally, to possess the ship administratively, as it was subject to a precautionary seizure. Supporting this claim with documentary evidence, the appellant contends that he serves merely as a manager of the company that owns the ship, which is under the management of a local company known as ....... This, according to the appellant, refutes the elements of the crimes attributed to him. However, the contested ruling purportedly failed to examine this defence, resulting in deficiencies in reasoning and warranting its reversal.

Whereas the objection holds merits, since it is prescribed, as per the ruling of this court, that while the trial court holds the authority to comprehend the reality in the case, evaluate its evidence, and extract the truth from it, such actions are contingent upon the court basing its rulings on valid reasons supported by documented facts, sufficient to substantiate its decisions. Also, it is prescribed, as per the ruling of this court, that the ruling itself shall instil confidence in the reader that the court has thoroughly examined the presented evidence, as well as the pleas and defences brought before it. The court is expected to employ all available means to ascertain what it deems to be the reality and truth in the case.

The court is required to address any defence that might change the formation of opinion regarding the accusation and to reply in reference and response thereto. Failure to do so renders the ruling fatally flawed and in breach of the right of defence.

In light of the foregoing, and whereas the appellant upheld a defence regarding his non-responsibility for the mentioned ship. He argued that an executive seizure had occurred on the ship prior to the accident, leading to its judicial sale at a public auction. The appellant substantiated this defence with documents, including a copy of the ruling issued in Executive Case No. 68/2021, awarding the auction. Given the meritorious nature of this defence, its valid examination could potentially alter the formation of opinion in the case. Consequently, the court was obligated to address and respond to this defence, either by acceptance or rejection. However, the contested ruling failed to do so. Instead, it proceeded to convict and penalize the appellant without acknowledging or responding to the defence. This constitutes a deficiency in causation and a breach of the right of defence, warranting the reversal and remand of the ruling.