Failure to Present the Forged Document on Which the Trial is Based to the Defendant Nullifies the Trial Procedures

Federal Supreme Court Rules (Failure to Present the Forged Document on Which the Trial is Based to the Defendant Nullifies the Trial Procedures)

Background:
The Public Prosecution referred the accused and others to criminal trial, accusing them of forgery of official documents (vehicle registration documents) by falsifying the truth in what was prepared to prove, by entering vehicle data with manipulated chassis numbers, for the purpose of selling and exporting them as detailed in the case papers. They requested punishment according to Articles 121/1, 216/7, 2017/1, 218, and 222/1 of the Federal Penal Code No. 3 of 1987.

A default judgment was issued against the fifth defendant (our client) sentencing him to five years imprisonment and ordering his deportation. Upon learning of the judgment, we submitted on his behalf a request for retrial. The Court of First Instance sentenced him to three months imprisonment and deportation after serving the sentence.

Our office (Bin Nakhira & Partners) appealed the judgment and argued before the Court of Appeal the nullity of procedures, absence of crime elements, and lack of connection of the accused to the crime for the following reasons:

• The chassis number of the vehicle is originally not considered part of the official documents. Changing it does not constitute forgery since the chassis number is not issued or given official status by a public official as defined in Article 218 of the Crimes and Punishments Law. The charge against the appellant is a felony of “forging an official document.”
• Evidence from the investigation record shows vehicle registration documents were seized during inspection of the workshop where the trucks were located. These were referred to the Forensic Evidence Department of Abu Dhabi Police, whose report stated that vehicle transfer certificates inside the country showed no technical signs of forgery. This proves the absence of forgery in official documents (vehicle registration documents). The evidence lacked any forensic laboratory report indicating forgery of vehicle registration documents. Therefore, the trial court’s ruling convicting the accused based on forgery in vehicle registration documents by inserting manipulated chassis numbers was erroneous.
• We requested, primarily, to open the official forged documents seized (vehicle registration documents) and present them to the accused to show signs of forgery since he had not seen them before the Court of First Instance.
• The Court of First Instance erred in convicting the accused of conspiracy and agreement with others to forge official documents. The court should have clarified the elements and method of conspiracy and detailed the supporting evidence from the case record and its circumstances, especially since the charges in the referral order from the Public Prosecution did not include conspiracy by agreement. This implies the prosecution considered the accused the principal offender, not an accomplice. The appellate ruling was based on facts different from those in the referral order, as it punished the appellant for conspiracy in the crimes of forgery and use, contrary to the articles in the referral order. The court should have informed the accused about the change in charge description from principal offender to accomplice so he could defend himself accordingly.
• The Court of Appeal upheld the Court of First Instance ruling, and the accused appealed the judgment (Appeal No. 234/2023), maintaining the same defenses presented before the Court of Appeal, adding the following:
• The judgment reasons state: “The court is convinced beyond doubt of the accused’s guilt in conspiracy with others to forge official documents (vehicle registration documents) by altering the truth with manipulated chassis numbers for the purpose of selling and exporting. They used these forged official documents with knowledge of the forgery.” However, the court’s failure to review the forged documents (vehicle registration documents) during the trial results in nullity of the judgment.
• The appellant explicitly requested the Court of Appeal to open the seized forged vehicle registration documents and present them to the accused to reveal signs of forgery. The Court of Appeal neglected this request, which invalidates the judgment and violates the law.
• The court’s failure to examine the forged document at trial is a procedural defect since the court’s personal review of the forged document is an essential trial step in forgery cases, required to carefully examine the main evidence in the case.
• For forgery, it is not enough to change the truth in a document; the change must cause or potentially cause harm. Harm is the criminal consequence that completes the material element of the crime. Without harm, there is no basis for liability for changing the truth. In this case, the only harmed party by changing the chassis numbers is the accused himself, the owner of the manipulated vehicles, rendering the crime claim unreasonable.
• The trial court adopted the principle of corroboration in criminal evidence, which is an exception to the general rule. The general rule is that criminal evidence must be sufficient by itself. For corroboration to apply, the evidence must be connected by membership and objective similarity. The appealed judgment failed to distinguish between the principle and its conditions, as well as the assessment of evidence, which invalidates the judgment and requires reversal.
• The burden of proof lies with the Public Prosecution to provide evidence establishing the accused’s guilt. If the case lacks conclusive evidence, the accused is not obliged to prove innocence. Presumption of innocence is the default, and the court’s duty is limited to weighing and scrutinizing the evidence presented, without searching for additional evidence beyond what is submitted.

Federal Supreme Court Ruling:
The Federal Supreme Court annulled the appealed judgment and ordered the case back to the Court of Appeal that issued it for reconsideration. The ruling stated: “The appellant’s grievance concerning procedural defects is justified, especially when he explicitly requested the Court of Appeal to open the seized forged vehicle registration documents and present them to the accused to demonstrate signs of forgery, but the court neglected this request, invalidating the judgment and necessitating its annulment. The Supreme Court’s precedent requires that the court examine the forged document in the presence of the parties and display it openly during the session so each party can comment, with the observations recorded to ensure the document in dispute is the one on trial. Failure to do so renders the ruling procedurally defective and a violation of the right to defense. The trial session records show the appellant’s lawyer explicitly requested this in his defense memorandum before the Court of Appeal on 19/1/2023. Hence, the appealed judgment is invalid and must be annulled without further consideration of other appeal grounds.”

Post-Annulment Court of Appeal Ruling:
The Court of Appeal retried the case according to Article (249/2) of the Code of Criminal Procedure, scheduled a session to open the seized items containing the forged documents in the presence of the accused.

At the session, the accused was present, and the seized items were opened, consisting of nine metal plates with chassis data. The court set a session for the accused to present his defense.

The accused argued that after opening the seized items, it was clear they did not contain “vehicle registration documents” as stated in the referral order but “metal plates with chassis data.” There is no official document in the case papers or attachments proving the trucks’ chassis numbers were changed and that this change was recorded in an official document. Since the chassis number is not an official document and the altered data must be proven in an official document for forgery to exist, the forgery crime is absent. The first instance court’s conviction based on non-existent vehicle registration documents is a procedural flaw requiring annulment.

The Court of Appeal canceled the appealed judgment and acquitted the accused of the charges.

Summary:
Article (210) of the Code of Criminal Procedure states: “The judge rules in the case according to the conviction formed in his mind; however, he may not base his judgment on any evidence not presented to the parties before him during the session.” Therefore, failure of the court to review or present the forged document to the accused during the session invalidates the judgment, as the court’s personal examination of the forged document is a crucial procedural step in forgery trials.