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Appeal in cassation in criminal matters in view of Law of cassation Court of Ras Al Khaimah no:4 for the year 2006

Group:
Article
Contact:
osama.m@rakpp.rak.ae
PublishedDate:
4/18/2016 12:00:00 AM

Osama Abdul Moeez Mohammed
Description:

The law of Cassation Court of Ras Al Khaimah no:4 for the year 2006 organized the appeal procedure in the penal provisions in front of cassation Courts in the fourth division in which it is mentioned who has the right to appeal and the judgments that can be challenged and appeal aspects and how to get it and the procedure for it as follows:-

First : the judgements that  can be challenged and who has the right to Appeal:-

Article 27 of the Law on the Court of Cassation referred to as : -

(The Public Prosecution , the aggrieved person , the person liable for the civil rights and the claimant may submit an appeal in cassation against the judgments rendered by the Court of last degree )

Whereas appeal by the ways of cassation is considered one of the extraordinary ways of appealing and for its permissibility it requires that the appealed judgement shall be final and issued from the last degree Court, it can be by implementation of normal appealing ways or by lapse of time limit. The judgement issued from the misdemeanor Court becomes final when it is issued in presence from the last degree Court or in presence of attorney in the article of misdemeanor in which the law permits as it is the case in appealed cases if the punishment given to him is fine only. If the appellant sentenced with imprisonment default and the judgement issued against him is in his absence or considering absentia so the right to appeal by objection stays open from the date of noticing him with the judgement and then it is not permissible for him to appeal it through cassation appeal. But in the judgements issued by the criminal Courts it requires the appellant to be present personally if the judgment is issued in his absence the procedure of the trial to be repeated because the criminal Court doesn't have notional sentences and the lesson behind description of judgment is the reality of incident not what the Court mentions.

 

And the Court of Cassation ruled (where as the appealed judgment, if termed as absentia, were as the lesson in it is the reality of the incident, not what the Court mentions about it , and the article 160 from the criminal procedure law no:35 for the year 1992 that the one who is accused in misdemeanor and sentenced imprisonment it is obligatory on the law to execute it immediately after the issuance of the judgment, and he has to be present personally and under other circumstances he is also allowed to delegate an attorney to represent him, and when it is proved by the first instance judgment which is appealed by appellant himself, and that he is sentenced with the punishment of fine , in such cases he is allowed to delegate a lawyer to be represent him  ,and when it is proved from the code of appealed judgment that a lawyer was present as an attorney of appellant in the last defense hearing ,so the appealed judgment will be considered presence judgement, and so it can be appealed by cassation according to article 28 from the law of cassation Court of Ras Al Khaimah no:4 year 2006) appeal no:101 year 2015 hearing 26/1/2016.cassation Court of Ras Al Khaimah.

 

And also(when it was proven after seeing the case file that the appellee didn't appear in front of Court of appeal, so the appealed judgment in its reality is the absentia judgement  and if the Court describes it incorrectly and mentions it as a presence judgement as we mentioned earlier that it is decided that the lesson in description of judgment is the reality of incident in the claim not what the Court mentions about it, were as the cassation appeal is only in the final judgment issued by the last degree Court and the reason is that as far as there is normal way of appeal to the judgment and having  possibility of cancellation or amendment  this way must be exhausted before resorting to the path of cassation appeal  ,   and therefore the appealed public prosecution or the sentenced are not allowed to appeal in cassation if the judgment is absentia only after exhausting the other previous ways of appeal before appeal in cassation).

  الطعن رقم 16 لسنة 5 ق  جلسة 11/4/2010  – مجموعة الأحكام والمبادىء القانونية الصادرة في المواد الجزائية – السنوات الرابعة و الخامسة و السادسة - ص 332  -  قاعدة رقم 16 – محكمة تمييز رأس الخيمة.

الطعن رقم 6 لسنة 5 ق  جلسة 7/3/2010  – مجموعة الأحكام والمبادىء القانونية الصادرة في المواد الجزائية – السنوات الرابعة و الخامسة و السادسة - ص 297  -  قاعدة رقم 54 – محكمة تمييز رأس الخيمة.

الطعن رقم 23 لسنة 5 ق  جلسة 9/5/2010  – مجموعة الأحكام والمبادىء القانونية الصادرة في المواد الجزائية – السنوات الرابعة و الخامسة و السادسة - ص 391  -  قاعدة رقم 68 – محكمة تمييز رأس الخيمة

 

(were as it was proved from the minutes of the first instance judgement that the respondent defaulted the last defense hearing in which the case is reserved for issuance of  the judgement , and then the judgement is considered absentia against him in a felony from the criminal Court were as if the Court states that the  judgement is in presence will be incorrect according to law, and that also doesn't change if the respondent attended some of the Court hearings because the legislator when writing the code of criminal procedures  did not take the system of juristic presence judgement  in case of judgments issued in the felonies from the criminal Court as he did for  misdemeanor and contravention). Appeal no: 67-68 for the year 10ق hearing 29/12/2015 cassation Court of Ras Al Khaimah.

 

And whenever the judgement is finalized the public prosecution can appeal against it in front of cassation Court if the appeal was filed by them, and the Court didn't rule to their  requirements or if the appealed judgement adjudicated innocence of the appellant or  change in the punishment that has not been challenged by prosecution through appeal and also the sentenced appellant has the right to take procedure of appeal by cassation and it is also allowed for the  claimant of civil rights  and responsible for it whenever he is considered part of  appeal litigation which mounted the appeal. 

The Court of cassation ruled that (since it was, and the focus of the right in that appeal is that the appellant shall be a part of the final judgement issued by the last degree Court and the judgement has harmed him, if this clause is not implemented his objection against the issued judgement is unacceptable according to article 33/clause (1) from the law of cassation Court of Ras Al Khaimah. Since it is, that the legal representative of the company……………. "appellant " didn't claim the civil rights from the respondents during the collection of the inferences or initial investigations or before the First Instance Court , which considered the criminal case and abstain from taking the necessary measures to set up according to the provision of articles 22,147 of the Federal Law No. 35 of 1992 promulgating the Code of Criminal Procedure and the provisions of Article 42 of the Federal Law No. 11 of 1992 promulgating the Code of Civil Procedure ,It must be ruled not to accept the appeal.)

 الطعن رقم 6 لسنة 1 ق  جلسة 18/3/2007  – مجموعة الأحكام والمبادىء القانونية الصادرة في المواد الجزائية – السنوات الأولى و الثانية والثالثة - ص 44  -  قاعدة رقم 5 – محكمة تمييز رأس الخيمة.

 

Secondly: Appeal's timings and procedures:-

The 28th article of the Court of Cassation law has stated the following:-

                                                    

(The appeal shall be performed by a pleading which comprises the grounds of appeal and shall be deposited at the Clerks' office of the cassation Court within thirty days from the date of the issuance of judgment, unless the judgment is considered as issued in the presence of its parties, the time limit shall apply from the date of its publication; the appeal shall be registered in the register provided for this purpose ( .

If the appeal is submitted by the Public Prosecution, its grounds must be signed by at least the President of Prosecution. If it is submitted by other party, its grounds must be signed by an attorney accepted before the cassation Court).

And it shows that the appeal by the way of cassation is done within 30 days from  its issuance in presence  and  if it is issued in absentia or considered presence the term applies after the judgement becomes final and that after the elapse of time period of appeal by the way of appellate opposition after the assurance that the sentenced is noticed of the judgement issued against him from the  appealed misdemeanor Court  unlike the criminal Courts which obliges that the judgement issued  by them shall be in presence were it doesn't have judgement considered presence  and the time period counts according to the Gregorian calendar and the issue date of  judgment is  not counted and if the last day meets with an official holiday day  the period extends to another working day.

 

And cassation Court ruled in that were as if the appealed judgment issued on 25 of September 2006 and the time limit for the appeal in the criminal matters is 30 days according to article 28/1 from the law of cassation Court of Ras Al Khaimah for the year 2006, and the appellant has deposited his memorandum on  29/10/2006, and  goes with the report , which was not to accept the appeal pro forma because it was deposited after the time limit ,  were as 25/10/2006 was the last day of appeal which was met with the official holiday of - Eid Al Fitr- and extended to Thursday 26/10/2006 and followed by week holiday of Friday and Saturday so the time limit extends to the next working day according to article 330 from the federal law no:35 for the year 1992 promulgating criminal procedure law , and so the appeal has met the condition legally scheduled).

الطعن رقم 8 لسنة 1 ق  جلسة 18/3/2007  – مجموعة الأحكام والمبادىء القانونية الصادرة في المواد الجزائية – السنوات الأولى و الثانية والثالثة - ص 52  -  قاعدة رقم 7 – محكمة تمييز رأس الخيمة.

To accept the appeal of public prosecution its grounds must be signed by at least the President of Prosecution. And  If it is submitted by other party , its grounds must be signed by an attorney accepted before the  Court  and it requires the signature to be appended to the sheet of appeal and  Editor handwritten with ink and it doesn't obviate the printing of lawyer name or stamping of sheet with his office stamp, If it does not  provide the form which is charted by  the law and implemented in the Egyptian Court of Cassation that the signature should be readable disclose the person signed the reasons memorandum to verify that it meets the requirement of the cassation Court to accept it.

 

And in that the Egyptian cassation Court ruled:(what can be seen in the reasons memorandum is that it carries what refers that it is issued by  a lawyer …………….. but the sign  was printed   and the name was printed by the printer  as it was not signed by origin or its copies were as the article 34 from law of appeal procedure in front of cassation Court issued by law no:57 for the year 1959 which necessitated in its last  paragraph regarding the appeals filed from other than public prosecution  the reasons for it shall be signed by an attorney accepted before the Cassation Court, and mentioning the name of lawyer by printers or  any other technical means does not serve as the origin of the signature , which is the only authority which is witnessing the issuance of the procedural  work attributed to him, and if it is proved that the reasons sheet remained anonymous from the signature of accepted attorney before the cassation Court until the appeal deadline, and the signature proved on the first page is not fractionate as it was not clear and cannot be read and the name of owner  cannot be known, so It does not signify  the signature to the contents of the reasons memorandum whereas it was, then It shall be reported not to accept the appeal and the confiscation of bail).

الطعن رقم : 21005 لسنة : 60 قضائية بتاريخ : 9-12-1992- محكمة النقض المصرية .

 

The situation differs in the jurisdiction of Federal High Court were as it went  that it is not necessary that the signature of lawyer shall be readable as far as the memorandum refers him to be the issuer. So the federal high Court ruled that:-

(if it is known from the introduction of first sheet from the appeal memorandum of the appellant that the applier is a lawyer ……….and attached the attorney from the appellant with the memorandum and he is an accepted pleader before the Federal High Court and which means that the signature available on the memorandum stays his signature even if his name is not coupled with the signature were it is enough if stated in the beginning of the memorandum that he is the one who is forwarding it).    

نقض جزائى  – الطعن رقم 278 لسنة 22 ق  جلسة 16/6/2001 – المحكمة الإتحادية العليا - دولة الإمارات العربية المتحدة.

the article 31 from same law stipulated that (To accept an appeal which is not submitted by the public prosecution or the convicted person to death penalty or imprisonment, the appellant must deposit an amount of five hundred Dirhams as a guarantee at the treasury of the Cassation Court .Shall be exempted from the guarantee whoever is exempted from the judicial fees.)

And the Court of cassation ruled that (where as  the appealed judgment issued on 25/5/2009 supporting the first judgement which was punishment of accused with a fine of five hundred dirhams ,were as the convicted person  appealed in that judgement by memorandum deposited in registry of cassation Court  on 9/6/2009 , and he didn't deposit the guarantee amount and according to article 31 from the law of cassation Court of Ras Al Khaimah for the year 2006 it shall be deposited in the treasury by those who are convicted with the punishment other than execution or any other punishment of imprisonment , and  the appellant was not exempted from any judicial expenses or any guarantee according to second paragraph of article 31 from law of cassation Court of Ras Al Khaimah, so the appeal is  Unacceptable pro forma).

 الطعن رقم 20 لسنة 5 ق  جلسة 20/7/2009  – مجموعة الأحكام والمبادىء القانونية الصادرة في المواد الجزائية – السنوات الرابعة و الخامسة  والسادسة - ص 93  -  قاعدة رقم 18 – محكمة تمييز رأس الخيمة.

It is worth mentioning that it is permissible for the natural guardian to take on the procedure of cassation appeal in favor of underage even if he had crossed eighteen until he reaches age of consent

According to cassation Court (were as appeal in the judgements is a personal right for those against whom the judgement is issued, either he practices his right or no as he sees his interest. And others are not allowed to practice this right on his behalf only after his permission. It is recognized that the convicted person shall practice his right by himself even though if he is a minor and doesn't exceeded eighteen or an underage that has not reached twenty one. And the natural guardian, is the judicial attorney of an underage by law and looks after all his personal affairs against him and his money, and by this capacity he can decide to appeal against the judgements issued on underage either it is civil or criminal whenever there is interest for the minor and that may be by benefitting him or protecting him from the harm. And this capacity is ensured to him even if the underage has crossed childhood age as stipulated in the child law as long as he didn't reach the consent age. Hence the appeal filed by natural guardian the trustee of minor is as if it is filed by an authorized.

الطعنين رقما 81-82 لسنة 10 ق جلسة 5/1/2016 محكمة تمييز رأس الخيمة .  

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