facts and evidence refute that allegation as the sample was taken on the same night the incident
happened.
To sum it up, the decision by the Criminal Court was in conformity with all the evidence presented and
accordance with discretion and sound weighing and the law. Hence, the law to be applied is that of the
Juvenile Code of 2010 which explicitly stipulates that its articles supersedes all other laws. And it
defines an underage child and an adult as;
(he who has not reached 18 years of age.)
And that (an adult is he who has reached 18 years of age.)
Despite the difference of opinions in the circles of the Supreme Court, where some opinions see that the
Criminal Code of 1991 is the one to be applied, still, we disagree as according to the interpretation of
laws and general stipulations of 1974 that considers the Special law an exception from the general
Criminal Code of 1991, and the Juvenile Code is the law for children victims or assailants, as stipulated
in Articles (3 – 4) paragraphs of interpreting general laws (6) and (3).
The rules of the special law prevail as it is an exception of the general law.
A later law ruling prevails over the previous law.
In addition to the explicit stipulation of Article (3) of the Juvenile Code 2010, the rulings of this
law shall prevail over all other laws in favor of a child.
The facts in the proceedings proved that the child did not reach 18 years of age as she was born
2003 according to her birth certificate (prosecution document no 4)
Thus, the Court of Appeal was right in upholding the conviction under Article (45) paragraph ©
punishably under Article (86) paragraph (J). Apparently, the Court of Appeal lowered the prison
sentence to 3 years, and we won’t interfere in that. However, we see that the Criminal Court did
not apply the item of determining the (collecting) of the fine that must be followed as in Article
)198), Criminal Procedures which stipulates that;
(if a sentence of fine is delivered the court that issued the ruling shall determine the means of
collecting, and to order, in case of failure to pay, collecting the fine through one of the following
methods;
A – b – c – d.
This stipulation is worded as an obligatory and not merely a permissible item, as the phrase (the
court shall) signifies that the court (shall order) being a compulsory rule. And, the alternative
prison sentence shall not begin unless;
(if collecting the fine proves unattainable via the methods mentioned above then it is for the
court to order an alternative prison sentence)
Hence, we see that the decision of fine is to be amended so the fine is collected by the Criminal
Court according to Article (198) procedures, and that the alternate prison sentence does not
prevail or be executed unless it proves not possible to collect the fine according to Article (198)
Criminal Procedures 1991. All in all, I extend my appreciation to judge/Yahya Ahmed for his
good reasoning of his decision.
And, in light of the above, we see;