Conclusive Criminal Judgments Issued by Supreme Courts May be Retracted

The Commission for Unification of Federal and Local Judicial Principles at the Union Supreme Court in Abu Dhabi “Commission” , in its open hearing held on 21 December 2023, resolved an issue on two conflicting judicial principles of which one was passed by Abu Dhabi Court of Cassation and the other by Dubai Court of Cassation. The conflicting issue is on the permissibility to retract a final conclusive judgment issued by a supreme court in criminal proceedings.

The Abu Dhabi Court of Cassation accepted an application to retract a conclusive criminal judgment that failed to consider an essential defense raised by the Appellant, therefore it referred the case to the chief justice of Abu Dhabi Court of Cassation to form a different tribunal to reconsider the appeal. This retracting decision was established on Para 5 of Article 1 of Federal Decree Law No. 38 of 2022 Promulgating the Criminal Procedure, which stipulates that “The provisions of the Civil Procedure Law shall apply to all matters not specifically stipulated in this law.”,  and also on Article 187 bia of Federal Decree Law No. 15 of 2021 amending some provisions of Federal Decree Law No. 11 of 1992 – corresponding to Article 190 of Federal Decree Law No. 42 of 2022 Promulgating the Civil Procedure, regarding the permissibility for the Court of Cassation to retract decisions and judgments it issued at the deliberation chamber or to retract its conclusive judgment on its own motion or at the request of the person against whom the decision or judgment was issued.

Whereas the Dubai Court of Cassation rejected an application to retract a conclusive criminal judgment, justifying its decision by stating that Article 190 of Federal Decree Law No.  42 of 2022 Promulgating the Civil Procedure applies to decisions and judgments passed by court civil departments rather that the criminal ones, as the legislator referred to decisions issued at the deliberation chamber, whereas criminal appeals are not considered at deliberation chambers of the Court of Cassation. Further, the conditions mentioned in Article 185/1, which were referred to in Article 190, do not apply to criminal appeals as they relate to civil appeals only.

The Commission resolved this conflict by giving preference to the judicial principle adopted by the Union Supreme Court and Abu Dhabi Court of Cassation that allows retracting conclusive criminal judgments issued by supreme courts, taking into consideration Article 190 of Federal Decree Law No.  42 of 2022 Promulgating the Civil Procedures. The philosophy of legislation in UAE is to adopt the Civil Procedure Law as a general legislation that governs procedural matters, to which its provisions are referred to fill any gaps in any other procedural law. Therefore, applying the provisions of Article (190) of Civil Procedure stands to reason, so long as the Criminal Procedure Law does not have a similar text. It is evident that Article (190) is not the exception, but rather an absolute general rule. This philosophy or legislative policy adopts the understanding that the reason for retracting is to ensure judicial reform, considering that the judicial reform is the ultimate general target which the legislator seeks to implement.

The Commission, to resolve this conflict, assumed two extremely important approaches , which are Analysis and Comparison. The Commission analysed the philosophy of general and special legislations in force in the State, in order to reach a sound understanding of the legislator’s intent, and to implement its role in the judicial reform system, then the Commission supplemented that analysis with a comparative study of legislative policy in legal cultures of other countries with a similar legal philosophy.

In the analysis approach, the Commission stated that retracting judgments is considered the original norm, not the exception. The legislator included the retraction of judgments in other laws, such as Article 32, para 4 of the Civil Procedures Law which addresses the possibility to retract rulings issued by a court in charge of determining estate matters, and also Article 144, para 2 of Federal Decree Law No. 51 of 2023 on issuing Financial Reorganization and Bankruptcy Law on the possibility to retract a judgment issued by the appeal court by applying to that same court.

In the comparative approach, the court referred to Article 626 of the French Code of Criminal Procedure, acknowledging the right of a convicted person whose innocence is proven following an application he submitted for reconsideration, to claim full compensation for material and moral damage he suffered because of the conviction, as well as the right granted by Article 188 of the Sudanese Code of Criminal Procedure which stipulates that the Chief Justice may form a tribunal of five judges from the Supreme Court for the review of any ruling it rendered if it becomes apparent to him that the ruling might include a violation of the provisions of Islamic Sharia or an error in the application or interpretation of law.

The foregoing highlights and confirms the importance of the role of the Commission in achieving consensus among conflicting judgments of the supreme courts in the State, anchoring the correct understanding of legal texts, and thereby enhancing the protection of people’s rights, and ensuring the application of justice in a more comprehensive and unified manner in the society.

The author of this Galadari Insight is Abdulmajeed Al Sweedy.

Abdulmajeed is a Senior Associate based in our Dubai office. His practice focuses on litigation and civil law. He is well-versed in all stages of court litigation and has an in-depth understanding of the practical commercial pressures and implications clients often face. 

For more information on this topic, please contact Abdulmajeed.

Abdulmajeed Al Sweedy
Senior Associate