Failure to Present the Forged Document on Which the Trial is Based Invalidates the Trial Proceedings

The Federal Supreme Court ruled that failure to present the forged document on which the trial is based to the defendant invalidates the trial proceedings.

1- The Public Prosecution referred the defendant and others to criminal trial, accusing them of forging official documents (vehicle registration documents) by falsifying information recorded therein. This was done by altering chassis numbers of vehicles for the purpose of selling and exporting them, as detailed in the documents. The prosecution requested their punishment under Articles 121/1, 216/7, 217/1, 218, and 222/1 of Federal Penal Code No. 3 of 1987.

2- An in absentia judgment was issued against the fifth defendant (our client), sentencing him to five years in prison and ordering his deportation from the country. Upon learning of this judgment, we submitted a request for retrial on his behalf. The Court of First Instance later sentenced him to three months in prison and confirmed his deportation after serving his sentence.

3- Our law firm (Bin Nakhira & Partners) appealed the verdict, arguing before the Court of Appeal that the proceedings were invalid, the elements of the crime were absent, and that our client had no connection to the offense based on the following:

• A vehicle’s chassis number is not considered an official document. Altering it does not constitute forgery, as the chassis number is not issued or authenticated by a public official, as required under Article 218 of the Penal Code. The charge against the appellant was “forgery of an official document,” which does not legally apply to this case.
• It is evident from the investigation report that vehicle registration documents were seized during the search of the workshop where the trucks were located. These documents were referred to the Forensic Evidence Department of Abu Dhabi Police, which confirmed that the Vehicle Conversion Certificates issued within the country showed no technical indications of forgery. This establishes that there was no forgery in official documents (vehicle registration documents). Additionally, the prosecution’s evidence did not include any forensic laboratory report confirming the forgery of vehicle registration documents. Consequently, the Court of First Instance erred in convicting the defendant based on the assumption that forgery had occurred by altering chassis numbers. Therefore, we primarily requested that the sealed forged official documents (vehicle registration documents) be opened and presented to the defendant to examine the alleged signs of forgery, as these documents were never shown to him during the trial at the Court of First Instance.

4- The Court of First Instance erred in convicting the defendant for complicity and agreement with the other defendants in the forgery of official documents. The court should have clearly identified the elements of complicity, the method of involvement, and the supporting evidence based on the case’s facts and circumstances. Notably, the charges listed in the Public Prosecution’s indictment did not include provisions related to complicity through agreement. This indicates that the Prosecution considered the defendant as the principal perpetrator of the crime, not an accomplice. However, the appealed judgment convicted the defendant based on a charge that differed from the indictment, as he was sentenced for complicity by agreement in the crimes of forgery and use of forged documents, contradicting the legal articles cited in the indictment. The court should have notified the defendant of its decision to amend the charge from a principal perpetrator to an accomplice, allowing him to present his defense based on the new legal classification of the offense.

• The Court of Appeal upheld the judgment of the Court of First Instance, after which the defendant filed an appeal under Criminal Appeal No. 234/2023, maintaining the same defenses previously presented before the Court of Appeal, in addition to the following arguments:
• The contested judgment stated: “The court is fully convinced that the charges against the defendant are conclusively proven, as he participated and agreed with the other defendants to forge official documents (vehicle registration documents) by altering the truth therein through the insertion of data for vehicles whose chassis numbers had been tampered with, with the intent to sell and export them. The defendants also used the aforementioned forged official documents despite knowing they were forged.” However, the court’s failure to examine the allegedly forged document (vehicle registration documents) during the trial renders the judgment invalid. The appellant had explicitly requested the Court of Appeal to unseal the evidence containing the allegedly forged vehicle registration documents and present them to the defendant to verify the signs of forgery. However, the Court of Appeal ignored this request, which constitutes a violation of the law.
• The failure of the court to examine the forged document during the trial invalidates the proceedings, as it is a fundamental procedural requirement in forgery cases that the court personally reviews the forged document to properly assess the primary evidence in the case.
• For the crime of forgery to be established, it is not sufficient for there to be an alteration of truth in a document; rather, it shall result in harm or at least the possibility of harm. Harm is the criminal consequence that completes the material elements of the offense, and in its absence, there can be no criminal liability for altering the truth. In this case, the only party harmed by the change in chassis numbers was the defendant himself, as he was the owner of the vehicles that were tampered with. This defies logic, making the alleged crime implausible.
• The trial court relied on the principle of corroboration in criminal evidence. However, this principle is an exception to the general rule. The fundamental rule in criminal evidence is that each piece of evidence shall be sufficient in itself. For the principle of corroboration to apply, its conditions shall be met, including the existence of a substantial connection between the pieces of evidence and subject matter consistency between the corroborative elements. The contested judgment failed to differentiate between this principle and its prerequisites, as well as between evaluating evidence and establishing guilt, which renders the judgment flawed and subject to revokation.
• The burden of proving the crime and attributing it to the defendant lies with the Public Prosecution, which shall present sufficient evidence to the court to establish the defendant’s guilt. If the case lacks conclusive evidence proving the charges, the defendant is not required to provide any evidence of their innocence, as the presumption of innocence is the legal standard. The court’s role is limited to weighing and examining the evidence presented in the case and does not extend to independently searching for additional incriminating evidence beyond the facts established in the case file.

Judgment of the Federal Supreme Court

The Federal Supreme Court ruled to overturn the contested judgment and ordered the case to be referred back to the Court of Appeal for a retrial. The reasoning for the judgment stated: “The appellant challenges that the judgment is flawed and procedurally defective because the Court of Appeal disregarded his explicit request to unseal the evidence containing the allegedly forged vehicle registration documents and present them to him for verification of the forgery indicators. This omission renders the judgment defective and necessitates its reversal. This challenge is well-founded.” It is established in cassation jurisprudence that the court shall examine the forged document in the presence of the parties, present it for discussion during the hearing, allow each party to express their opinion thereon, and record their observations to ensure that the contested document was the subject of deliberation. If the court fails to do so, its ruling is procedurally defective and violates the right to defense. Whereas, the trial records indicate that the appellant’s attorney explicitly requested in his defense memorandum submitted on January 19, 2023, before the Court of Appeal, that the sealed evidence containing the allegedly forged vehicle registration documents be unsealed and presented to the defendant for verification of the forgery, the contested judgment is fundamentally flawed and shall be overturned without the need to examine the other grounds of appeal.”

Court of Appeal Ruling After Cassation

• The Court of Appeal, composed of the same panel, retried the case in accordance with Article 249(2) of the Criminal Procedure Code and scheduled a hearing to unseal the evidence containing the allegedly forged documents in the presence of the defendant.
• During the scheduled hearing, the defendant appeared, and the evidence was unsealed, revealing nine metal plates of chassis number data. The court then scheduled another hearing for the defendant to present his defense.
• The defendant plead that after unsealing the evidence, it became clear that it did not contain “vehicle registration documents” as stated in the indictment order, but rather “metal plates of chassis number data.” Therefore, there was no official document in the case file proving that the trucks’ chassis numbers had been altered and subsequently recorded in an official document. Whereas, a chassis number is not considered an official document, and forgery requires that the altered information be entered into an official document, the crime of forgery is not established. The Court of First Instance’s conviction of the appellant based on nonexistent vehicle registration documents rendered the judgment defective and necessitated its annulment.
• Accordingly, the Court of Appeal ruled to overturn the appealed judgment and acquitted the defendant of all charges.

Conclusion:

• Article (210) of the Criminal Procedure Law states: “The judge shall rule in the case according to the conviction formed in his mind. However, he may not base his judgment on any evidence that was not presented to the parties during the hearing.” Therefore, if the court fails to review the forged document or present it to the defendant during the hearing, the judgment is rendered invalid. The court’s direct examination of the allegedly forged document is a fundamental procedural requirement in forgery cases.
• The trial court shall rule on essential defenses and substantive requests made by the parties concerning the case. According to Article (217) of the Criminal Procedure Law, failure to do so renders the judgment unlawful and defective, constituting a violation of the right to defense.
• Changing a chassis number does not constitute forgery, as it is not inherently classified as an official document. Changing such number does not amount to forgery unless a public official records this alteration in an official document.