How did “Swiss law” acquit Haitham Kamel Abu Ali in a case

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Books – Mahmoud Saeed:

The Red Sea Criminal Court, headed by Counselor Zine El Abidine Hazen, deposited the rulings of the judge’s ruling that the accused, Haitham Karim Kamel Abu Ali, be imprisoned for one year, with a stay of execution, in the case of accidentally killing engineer Mai Iskandar in a collision, and acquitted him of the charge of narcotic hashish use and driving under its influence.

The Public Prosecution appealed the verdict of acquittal of the accused in the case of cannabis use.

Why did the court imprison the accused in the case of “manslaughter” and acquitted him of using “marijuana”?

In the merits of its ruling in Case No. 2001 of 2021 Felonies of the First of Hurghada, the court revealed that the case settled in its certainty extracted from all its papers and the investigations that took place in it and what took place in the court sessions that took place in what was written in the minutes of the collection of inferences on January 23, 2021 at four in the morning and the testimony of the officer Khaled Samir Hassan Zaki, an officer in the Hurghada Police Department, that a report was received from the emergency operations room

A collision occurred on the ring road near the safari area in the direction of the neighborhoods in the first department of Hurghada.

The officer added that he moved to the scene of the accident, and when he saw two cars that collided between them, it became clear to him that the parties to the accident were Haitham Karim Kamel Abu Ali and Mai Iskandar and her car driver Shadi Mustafa Kamel.

According to the ruling’s merits – Masrawy obtained a copy of it – the court found that the accused (with Swiss citizenship) did not speak Arabic, so the Swiss embassy, ​​after addressing it, sent a representative specialized in interpretation.

Before the court, the accused denied the charges against him and denied causing the accident, expressing his regret for what resulted and he was unaware of the investigations and the prosecution’s questions.

The defendant’s lawyer pleaded his innocence of what was attributed to him and rejected the civil lawsuit, and argued that the statement attributed to the accused in the investigations was invalid because of his lack of fluency in speaking the Arabic language and the contradiction of witness statements and the lack of a causal link between the accused’s action and the result.

Court: The suspect’s car was the cause of the accident

The court said that the weighing and estimation of the witnesses statements is due to the trial court.

Since that was the case, and the court had extracted a copy of the case, whose conscience was reassured by it, from the statements of the witnesses of the above-mentioned proof, taking what it was reassured of from their statements, and subtracting the rest of it, which it is not reassuring, with no contradiction in it. The negligence of the accused, his carelessness and his lack of caution, and the accident resulted in the death of the victim, and therefore what the defense raises in this regard is not sound.

Court: The accused drove his car in a dangerous condition

As for the argument that there is no causal link between the action of the accused and the result, it is replied to him that he had settled in the conviction of the court that the accused drove his car in a condition that resulted in danger and resulted in an accident that collided with the car, the independence of the victim, which led to her death, and then the accused’s mistake is related to the accident With the causative, the accident does not occur without the presence of this error that led to the injury of the victim indicated in the report of the health inspector attached to the papers, and then the causal link between the error of the accused and the result that led to it is available, and therefore what the defense raises in this regard is not valid.

Court: The accused has no similar precedents

Regarding the sentence of imprisonment for the accused with a 3-year suspended sentence, the court said that it was proven to it that the accused, Haitham Karim Kamel Hassan Abu Ali, had mistakenly caused the death of the victim on January 23, and this was due to his negligence, carelessness and failure to observe the laws, regulations and regulations by driving his car in an exposed condition. People and money were at risk, and he collided with the car, causing the victim’s independence, causing her injuries that led to her death.

She added that, as a road user, he did not take the utmost care in his behavior and did not take the necessary caution and caution, and his behavior resulted in harm to others and drove his car in a situation that puts lives and money at risk.

In accordance with Article 304/2 of the Code of Criminal Procedure, his punishment is in Article 238/1 of the Penal Code and Articles 1, 3, 4, 77 of Law No. 66 of 1973 as amended and Articles 1 and 2 of the Executive Regulations, and since the crimes attributed to the accused have been committed For one criminal purpose and indivisibly linked to each other, and then the court shall pass the penalty prescribed for the most severe pursuant to Article 32 of the Penal Code.

As the court deems that the circumstances of the convict, his past, his age, the absence of similar precedents and the circumstances in which the incident was committed, give rise to the belief that he will not return to violating the law and committing similar facts, especially since the accused has spent nearly four months in prison pending the case, and from Then the court decides to stop at this point and stop the sentence imposed for a period of 3 years from the date of pronouncing this judgment, pursuant to Articles 55/1 and 56/1 of the Penal Code.

Reasons for the acquittal of the accused of using “marijuana”

As for the accusations against the accused of possessing the drug “hashish” with the intent to use, driving his car under his influence, and deliberately driving against the prescribed direction of the outer road of Hurghada, which resulted in the accident, the court replied as follows:

The court said that Ali Muhammad Othman, chief chemist at the joint laboratory of the Red Sea Health Affairs Directorate, testified that, in implementation of the Public Prosecution’s decision, he represented the accused personally and drew a blood and urine sample from him under the supervision of the second witness, and by examining that sample, it was found that it was positive and contained hashish.

The third, Shadi Mustafa Kamel, testified that when he drove the vehicle and delivered the victim, Mai Iskandar Ishaq, by car, he was surprised by the vehicle driving the accused in the opposite direction on the ring road, which led to a collision with him and the victim’s injury, which claimed her life.

Technical engineer Hisham Abdel-Aty testified to the Red Sea Traffic Department that after examining the two cars and examining the location of the incident, it was found that the second BMW brand car, driving the accused, was traveling in the opposite direction and facing the car, driving the witness who was walking in the right direction.

The report of the Narcotics Analysis Department at the Hurghada Joint Laboratory of the Health Affairs Directorate in the Red Sea proved that the sample taken from the accused was positive and contained the substance of narcotic hashish. It was proven from the report of Hurghada General Hospital that the accused smelled of alcohol while he was in a state of ambiguous drunkenness, and it was proven by the prosecution’s investigations The general public that the accused admitted that he had used hashish as well as alcoholic substances before the accident, and it was proven from the prosecution’s inspection of the monitoring devices that the vehicle was moving the victim’s independence in the right direction and the vehicle was driving the accused in the opposite direction of the vehicle and the victim’s independence in the opposite direction prescribed by law.

And since the accused, when questioned by the Public Prosecution’s investigations, admitted to using “hashish” in Switzerland before coming to Egypt and consuming alcoholic substances immediately before the accident, and denied that he was under the influence of drugs or intoxicants while driving his car at the time of the accident.

The present defense of the accused, after explaining the circumstances and circumstances of the case, sought innocence based on the contradiction of the witnesses statements, the invalidity of the confession, and the invalidity of the evidence derived from the statements of the fourth witness, as he did not specify the reversal of the two cars in the investigations conclusively, and the invalidity of the evidence derived from the laboratories as it was contrary to the established instructions Among them are the texts of the Swiss Confederation Law issued in the French language and documented by the Foreign Ministry of the State of Switzerland and the Embassy of the State of Switzerland in the Arab Republic of Egypt, the translator from the Faculty of Al-Alsun, Ain Shams University and under the seal of the college, and he also submitted a memorandum of his defense, which the court reviewed.

And since the court indicates, first of all, that confession in criminal matters is an element of inference, which the trial court has complete freedom to assess its validity and value in evidence, and it may divide the confession, taking from it what it is comfortable with and subtracting the rest, and estimating the value of the confession from the affairs of the trial court. The circumstances of the case are revealed to her.

As for the accusation attributed to the accused with a description made with the intent to take a drug substance (hashish) in cases other than those authorized by law and mentioned in the first clause of the referral order:

The court held that the Public Prosecution had based the accusation contained in the first item in the referral order that he had obtained with the intent to use the substance of cannabis in other than the legally authorized conditions, based on the statements of the first witness, a chief chemist at the Red Sea Laboratory and a doctor in the laboratory, and the confession of the accused and what was stated in the report of the Hurghada Joint Laboratory in the Directorate of Health Affairs In the Red Sea, a positive urine sample was taken from the accused who had used cannabis.

And since it was legally established in accordance with the text of Article 3 of the Penal Code that: “Every Egyptian who commits, while outside the country, an act that is considered a felony or misdemeanor in this law, shall be punished according to its provisions if he returns to the country and the act is punishable under the law of the country in which he committed it.” .

According to the text of the aforementioned article, the jurisprudence and the judiciary have settled that it is required to apply the Penal Code to the Egyptian person who commits a crime outside the country upon his return, several conditions, that the offender be Egyptian and that the act committed abroad be described as a felony or misdemeanor and that the actual act be From the Egyptian, an act is punishable in the country in which the act was committed in accordance with its laws, and therefore the act is not punishable in the country in which the material act of the crime occurred, so there is no punishment for him as long as he is committed to the law of the country in which this act took place, meaning that his act is permissible there.

And since that was the constant for the court from reading the portfolio of documents submitted by the defendant’s defense, which were covered with the texts of the Swiss Federation law issued in the French language and authenticated by the Foreign Ministry of the State of Switzerland and the Embassy of the State of Switzerland in the Arab Republic of Egypt and the translator from the Faculty of Al-Alsun, Ain Shams University, it was proven by the texts of its articles that “Anyone over eighteen years of age who brings only a small amount of drugs for his own consumption is not subject to prosecution and is not subject to the law, and that ten grams of cannabis is considered a small amount.”

And since the court is reassured about that clipboard and what it contains, as it is authenticated by the Foreign Ministry of the State of Switzerland and the Embassy of the State of Switzerland in the Arab Republic of Egypt, the translator from French into Arabic at the Faculty of Al-Alsun, Ain Shams University, and a dowry with the seal of the Faculty of Al-Alsun.

And since it was established by the court that the accused had admitted to the investigations of the Public Prosecution that he had smoked hashish on January 20, 2021 in the State of Switzerland, where he resides permanently, and that he entered the Egyptian territory on January 22, 2021, one day before the accident, and this was proven to the court from the photocopy of the accused’s passport attached to the papers and the evidence By entering Egyptian territory January 22.

And since the court has complete freedom in assessing the validity of the accused’s confession to the investigations, it also has the right to divide the confession, taking from it what it is reassuring, subtracting the rest, and estimating its value from its affairs, according to what is revealed to it from the circumstances of the case, and then the court is assured of the accused’s acknowledgment of the investigations in this regard And it has been proven in her certainty that the accused committed his act by taking cannabis while outside the country, especially since the accused was not arrested while there was a drug in the event of the accident, and it was not proven in the papers that he was under the influence of a drug if he was arrested at the time of the accident, and that It became clear to the court from the testimony of the witnesses of the first and second evidence before the court that neither of them was certain that it was possible to determine the date of his use of that drug or the period for which that drug remained stuck in his body.

Since the court has verified that the act of using cannabis is not punishable under the law of the country, the state of Switzerland, from which the accused comes, and therefore he may not be punished for the same act within Egyptian territory in accordance with the text of Article 3 of the Penal Code, which the court cannot but rule The accused acquitted of what was attributed to him in connection with the accusation contained in the first clause of the referral order.

The Pronunciation of the Court’s Verdict against Haitham Karim Kamel Abu Ali

Therefore, the court ruled in my presence first: to punish Haitham Karim Kamel Hassan Abu Ali with hard labor for a period of one year for the second, fifth and sixth charges mentioned in the referral order, and ordered a stay of execution of the imposed imprisonment sentence for a period of three years starting from the date of the judgment becoming final and obligating him to pay criminal expenses.

Second: By obligating him to pay the civil claimant an amount of one million pounds as a temporary civil compensation, and obligating him to pay the civil lawsuit expenses and an amount of two hundred pounds for attorney fees.

Third: Haitham Karim Kamel Hassan Abu Ali acquitted of what was attributed to him in the first, third and fourth charges contained in the referral order.





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