Reversal of Final Criminal Judgments by Higher Courts in the UAE (Including Dubai Court of Cassation)

First: Article (190) of Federal Decree-Law No. (42) of 2022 Concerning the Civil Procedures Law provides as follows:

• Without prejudice to Clause (1) of Article (185), and as an exception to the provision of Article (189) of this Dubai Law, the court may reverse its decision issued in the deliberation room or its final judgment, either sua sponte or upon the request of the party against whom the decision or judgment was issued, in any of the following cases:
• If the decision or judgment was marred by a procedural error committed by the court or its supporting staff that affected the outcome of the decision or judgment.
• If the decision or judgment was based on repealed legislation, and the application of the correct law would change the legal outcome of the case.
• If the decision or judgment contradicts any judicial principles previously established by the court’s general assembly or joint chambers, or contradicts the principles settled by the court or issued by the Judicial Principles Unification Committee between federal and local judicial authorities, without being presented to such bodies.
• The application for reversal may be submitted by the party against whom the decision or judgment was issued to the Case Management Office at the Federal Supreme Court, the Court of Cassation, or the Court of Cassation in Dubai, as applicable. The request must be signed by a lawyer licensed to plead before the relevant court and accompanied by a deposit of AED 20,000. If the court initiates the reversal on its own, the President of the Court shall refer it along with a report from the Technical Office to the panel specified in Clause (3) of this Article.
• The request for reversal or the referral for its consideration, as mentioned in Clause (2), shall be examined by a panel of five judges who did not participate in rendering the original decision or judgment. The panel shall issue a reasoned decision in the deliberation room by a majority of four judges. If the request is rejected, the security deposit is forfeited. If the request is accepted, the case is referred to another panel to reconsider and decide on the appeal, and the deposit shall be refunded to the applicant.
• In all cases, the referral or submission of the request for reversal is permitted only once, and it may not be submitted after the lapse of one year from the date of issuance of the decision from the deliberation room or the final judgment.

Second: Judicial practice has resulted in a divergence among the higher courts and inconsistency between two judicial principles:

The Abu Dhabi Court of Cassation issued its decision in reversal applications No. 4 of 2021 (Criminal - Abu Dhabi) and No. 1 of 2023 (Extradition - Abu Dhabi), wherein it affirmed the judicial principle of:

• “Permissibility of reversing final criminal judgments issued by the Court of Cassation.”
• This view was likewise adopted by the Federal Supreme Court in its decisions in reversal requests No. 14 of 2022 (Criminal - session dated 14/06/2022) and No. 25 of 2023 (Criminal - session dated 16/08/2023).

On the other hand, the Dubai Court of Cassation issued its decisions in reversal requests Nos. 45, 49, 52, and 86 of 2023 (Cassation - Dubai), adopting a contrary principle:

• “Non-permissibility of reversing final criminal judgments issued by the Court of Cassation.”

Third: Basis of the conflict between the two principles:

These decisions reflect a judicial conflict regarding a single legal issue, issued by multiple higher courts in the UAE through certified lawyers in Dubai. The crux of the conflict lies in the interpretation and application of Article (190) of Federal Decree-Law No. (42) of 2022 on Civil Procedures to requests for reversal in criminal matters.

• The Federal Supreme Court and Abu Dhabi Court of Cassation applied the rules for reversal of final judgments to criminal cases, based on Clause (5) of Article (1) of Federal Decree-Law No. (38) of 2022 on the Promulgation of the Criminal Procedure Law.
• The Federal Supreme Court and Abu Dhabi Court of Cassation applied the rules for reversal of final judgments to criminal cases, based on Clause (5) of Article (1) of Federal Decree-Law No. (38) of 2022 on the Promulgation of the Criminal Procedure Law.

Fourth: Jurisdiction of the Federal Judicial Principles Unification Committee to Resolve the Conflict

As a result of the contradiction between the two aforementioned judicial principles, His Excellency the Federal Attorney General submitted a request to the Federal and Local Judicial Principles Unification Committee on 5/9/ 2023. Additionally, His Excellency the President of the Dubai Court of Cassation submitted a similar request to the same committee on 11/09/ 2023.

In both submissions, they requested the Committee to resolve the conflict between the principles issued respectively by the Abu Dhabi Court of Cassation and the Dubai Court of Cassation, as previously outlined.

Consequently, the jurisdiction to consider both requests and resolve the contradiction between the judicial principles lies with the Federal and Local Judicial Principles Unification Committee.

Fifth: Legal Grounds Relied Upon by the Committee in Favoring One Judicial Principle Over the Other

Paragraph (5) of Article (1) of the Criminal Procedure Dubai Law provides:“The provisions of the Civil Procedure Law shall apply to matters not specifically addressed by this Law.”

This establishes a legal connection between the Criminal Procedure Law and the Civil Procedure Law, where the latter serves as the general procedural framework. It may therefore be relied upon to fill gaps in criminal procedural matters, particularly due to the unified judicial authority responsible for adjudicating both civil and criminal cases, including their appeals. This means that certain procedural rules from the Civil Procedure Law may be applied to criminal proceedings, provided they do not conflict with their nature.

The legislature set out clear boundaries for the relationship between the two laws:

• If the Criminal Procedure Law itself addresses a particular procedural matter, then the Civil Procedure Law is not to be applied.
• If the Criminal Procedure Law explicitly refers to provisions of the Civil Procedure Law, then those provisions must be applied.
• If there is no express provision governing a procedural issue in the Criminal Procedure Law, then Article 1(5) of the Criminal Procedure Law mandates the judge to refer to the Civil Procedure Law. However, this reference is valid only if the provision in the Civil Procedure Law embodies a general procedural rule and not an exceptional or civil-specific rule.

This is because:

• Exceptions are not to be extended by analogy;
• Differences between civil and criminal proceedings must be respected;
• The applied rule must not contradict the governing principles of criminal justice, particularly those relating to legality and due process.

In short, when interpreting or filling gaps in the Criminal Procedure Law, reliance should be placed on general procedural principles that are consistent with the role of criminal procedures, namely, the protection of personal liberty and guaranteeing the accused’s right to defense. Judges may apply compatible solutions found in the Civil Procedure Law, not as civil rules per se, but as results of interpreting the criminal process in light of fundamental procedural principles. This is particularly valid when such application submitted by a legal advisor in Dubai does not conflict with the nature of criminal litigation or the principles of criminal justice.

Reversal of final judgments is not a mere exception.

It is inaccurate to claim that reversal is exceptional and thus not subject to analogy. The legislature explicitly provided for reversal in Article (32) of the Civil Procedure Dubai Law. Additionally, Article (265/2) of Federal Decree-Law No. (51) of 2023 on Financial Reorganization and Bankruptcy states:

“The judgment of the Court of Appeal on appeal shall be final and not subject to further appeal by any means of recourse. Nevertheless, the court that issued the judgment may reverse it in accordance with the rules set out in the Civil Procedure Law.”

This affirms that reversal is a judicial correction mechanism adopted by the federal legislator, akin to systems in other Arab and comparative jurisdictions.

• The rationale behind reversal is judicial correction, which is not limited to civil judgments but also extends to criminal judgments.
• Comparative legal systems:
• French law expressly permits reversal in Article 626 of its Code of Criminal Procedure.
• Sudanese Criminal Procedure Law of 1991 (amended in 1998) allows for reversal.
• Egyptian Court of Cassation has applied reversal, including in criminal cases.
• Established judicial practice in the UAE has recognized reversal of final judgments issued by higher courts, both in civil and criminal matters, even before the formal codification of the reversal procedure.

Sixth: The Judicial Principle Favored by the Federal and Local Judicial Principles Unification Committee

First: The matter under consideration allows for only one resolution, namely, the endorsement of the judicial principle issued by the Federal Supreme Court and the Abu Dhabi Court of Cassation, which affirms the permissibility of reversing final criminal judgments issued by the higher courts.

Second: The statutory provisions, the requirements of justice, and the rationale behind codifying the reversal mechanism all necessitate the preference for the principle permitting reversal of final judgments issued by higher courts in criminal matters. This ensures justice, allows for the correction of errors that may affect final judgments, and upholds the uniform application of the law.

(Reference: Emirate of Abu Dhabi - Federal and Local Judicial Principles Unification Committee - Appeals Nos. 4 and 5 of 2023 - Hearing Date: 21 December 2023 - Legal Yearbook No. 17)