x Abu Dhabi, UAETuesday 25 July 2017

Drug death sentences overturned due to procedural errors

Abu Dhabi strikes down every capital conviction in the last three years, citing errors such as improper arrests and non-unanimous verdicts.

ABU DHABI // Every death sentence handed down for drug offences over the past three year has been rejected because of procedural errors. Abu Dhabi Judicial Department officials said most of the sentences - more than a dozen in all - were sent back by the Appellate Court before they reached the Court of Cassation, the highest court in the emirate and last point of appeal. The Court of Cassation cited failures in collecting information, making arrests or in court procedures.

Errors included a translator who was not under oath when translating the defendant's testimony, a lower court that did not issue a unanimous verdict, an arrest made without a clearance from public prosecution, a video recording of an arrest that was not clear, and confessions incorrectly obtained.

"The Court of Cassation reviewed many death penalties issued by lower courts to defendants convicted of drug trafficking, but the court has not upheld a single case," said an official at the judicial department, who preferred to remain anonymous. The official declined to provide a specific number of such cases, but said there were more than a dozen. More detailed statistics were not immediately available. Another official at the department confirmed that in the past three years, when he worked at the department, the Court of Cassation had not upheld any death penalty in narcotics-related cases.

Because sharia law is implemented in death penalty cases, the standard of evidence has to be extremely high - for instance, officers in a sting operation would not be valid witnesses because they would not be considered independent.

"When the Court of Cassation remands [sends back] a death penalty, it must be because there was a mistake in the legal procedures," said Magistrate Abdulaziz al Mulla of the Judicial Department, who specialises in sharia law. "We have three levels in our court system. That is why the sentence of the lower court is usually heavy."

A recent example is that of a Pakistani drug dealer sentenced to death by the lower courts but granted a retrial by the Court of Cassation because of incorrect procedures. The Appellate Court insisted on the death penalty, citing his confessions to the police. The case was rejected twice by the Court of Cassation on the grounds that the translator who delivered the man's testimony to the police was not under oath. The defendant is now being tried in the High Court, as the law allows the Appeal Court to insist on its decision only twice.

The third time, the Court of Cassation tries the case with its own judges. Fikri Nasrallah, a legal consultant, said death penalties for narcotics-related offences decreased as they went through the higher courts. "The role of the superior courts is essentially to review verdicts of inferior courts and see if they are legally sound," Mr Nasrallah said. "Superior courts will often find that police or lower courts followed wrong procedures in arresting or convicting a defendant."

Mr Nasrallah believes that issuing tough sentences in the lower court has two advantages: deterring people from committing such offences, but also giving a convicted defendant the chance to present a better case in the appeals court. In a Judicial Department report published last year, Magistrate Al Siddiq Mohammed, the deputy director of the Judicial Council and a chief justice at the Court of Cassation, clarified the laws governing drug cases in the superior courts between 1994-2005.

No instances of upheld death penalties in drug cases appear in the report. "For a person to make a mistake in forgiving is better than to make a mistake in punishing," Magistrate Mohammed wrote, quoting a hadith by the Prophet Mohammed. He also wrote that there was an urgent need for judges in the lower courts to understand the principles governing narcotics-related offences to avoid conflicting decisions.

hhassan@thenational.ae