According to the UAE law, a sentence of capital punishment shall be imposed in cases of intentional murder if one or more of the following elements is proved to be present.
One, “Israr: and or “Tarassud” ; Two, that the murder took place in the process of commission of another crime, eg. robbery, kidnapping, rape, etc. Three,that the victim was a public employee, i.e. a police officer or other public sector worker. Four, that the murder was accomplished by an explosive or by means of poison. Given the fact that the case of Shahid King Bolsen in the death of Martin Steiner, is in actuality a case of manslaughter and not intentional murder, obviously it should not be necessary to discuss the conditions of a murder case which results in capital punishment as this is not in fact a murder case. And according to UAE law, a case of manslaughter shall result in a sentence not exceeding 10 years imprisonment and this is the appropriate ruling for this case. However, because the procecution has alleged that the death of the victim was the result of intentional murder and because they requested the imposition of capital punishment against the defendant, this issue is necessary to address. Objective examination of the facts and the circumstances of this case reveals that none of the four elements are present, which necceciates capital punishment. As we shall explain below, again being in its nature a case of manslaughter, its not surprising that such elements should be absent, what is surprising is in fact the case for premeditated murder is being put forth at all. The first element of the case mandating capital punishment is that of Israr and or Tarassud. Israr is defined in section 333 of the UAE legal code as “the determined intention before commiting a crime against any person and to plan and or arrange the necessary means to carry out the act in a precise way”. Let us firt discuss Israr or its absense in this case before moving on to the definition of Tarasud. In so far as “determined intention” is something unknowable except to Allah, it is reasonable to infer its existence from the “planning” and or arranging ” of the means to commit the act. i.e. proof of such pre arrangement acts as proof of intent. Therefore, it must be peoved beyond a reasonable doubt that the defendant did in fact arrange the means necessary to commit the act precisely and specifically for that purpose. That is to say, it must be proven that steps were taken that could have only been taken for this specific purpose of comitting the act and not for any other reason as only such specific steps could be proof of intent. While less specific steps cannot be proven to be related to the act but can only be interpreted to be so; which leaves doubt.
For example, a man may bring another man to go fishing and while they are out on the boat, they argue and the first man pushes the other man into the sea drowning him. It cannot be reasonably concluded beyond doubt that the first man brought the second man out to the sea specifically to drown him and tat the arrangement of a fishing trip proves intent to comit murder. The fact that the murder transpired on the fishing trip does not prove that the fishing trip was arranged for that purpose as fishing trips are normal activities. By contrast, a man may steal a key to another man’s flat, buy a knife and let himself into the man’s house during the night, lock the door behind him and murder the man with the knife. Here, there are unambiguous steps taken to arrange the means to comit the act there being no apparent or normal reasons to preform such actions. There are specific arrangements without any reasonable interpretation other than that they were undertaken for the purpose of the murder. Thus in order for any arragement to be proof of intent it must be simply and unambiguously adjunc to the act such that there can be no reasonable explaination for it other than as a means to comit murder.
In the case at hand there is no evidence to prove beyond reasonable doubt that the defendant made any such arrangement and indeed the killing of the victim occurred by means prepared by the defendant for a routine purpose entirely unconnected to the killing and which was not known by the defendant to possess lethal properties and the killing occurred in circumstances unforeseen by the defendant beyond his control and which were initiated by the victim himself and that which is initiated by one person cannot be deemed to have been planned or arranged by another. In this case the victim died as a result of inhaling chloroform possessed by the defendant for his own regular use and administered by the defendant upon the victim to halt a sexual assault being perpetrated by the victim __ __ An incident neither planned nor anticipated by the defendant and which was the sole impetus for his use of chloroform upon the victim. Without the occurence of this assault, there is no reason to suppose that there would have been any confrontation between the two parties at all. If it is claimed that Israr is proven on the basis of the defendant being enticed the victim to come to the defendants flat and the victim’s death later occurred, this is erroneous. To invite a person to a specific location for reasons known or unknown to them does not reasonably constitute facilitation of any act which takes place at that location after their arrival, unless that act is something common and expected at that location. Eg. Drug use at a known opium den or illicit sexual intercourse at a brothel. That is to say, if a man enters someone else to come, for instance, to a bar, that person subsequently drinks alcohol at the bar, it is reasonable to claim that the first man facilitated the act of drinking alcohol, because that is the only apparent explanation for his having invited the person to that location as that is the act common and expected at that place. Because a violent act happens to take place at a specific location or a life is lost there, there s no proof that the victim of that act was present at that location for that purpose. It is entirely plausible that the events which led to the loss of life occurred spontaneously and were unanticipated at the time the victim was invited to be present. Furthermore, arranging the presence of a person at a specific location does not constitute an arrangement if the means to commit an act because a location is in and of itself a means by which an act is committed. It is not an element of the act simply because the act takes place there. Drawing someone to a specific place cannot be constituted as proof of intent of anything beyond the desire for the persons presence at that location for reasons that correspond with what is common to that location. Finally, it cannot be regarded as “arranging the necessary means to carry out the act”. To invite someone to a specific location because the one who invites the other person has no control over whether or not that person will come. If arranging the presence of a person at a specific place at which their death subsequently occurs is accepted as a facilitation of that person’s death, it must therefore be proven that arrangement of that person’s presence at that location was in fact solely within the power of the one arranging it and not something subject to the will of the other person. In order to say that a person arranged something, it must necessarily mean that it is now under their control. If a person’s presence at a specific location is to be regarded as a means to commit the act, but then its arrangement must be comparable to the arrangement of the other means such as the purchase of a weapon, that is, it must be a matter which can be arranged with the same degree of certainty and control and not a matter subject to the will and whims of another nor chance or coincidence. It cannot be reasonably stated that a thing has been arranged by a person while that thing is in fact beyond that person’s control. If it is claimed that Israr is present in this case due to the defendants possession of the instrument which caused the victim’s death, this is erroneous. The instrument which caused the victim’s death in this case, chloroform, was possessed by the defendant prior to his acquaintance with the victim. And it was not acquired by him for any reason connected to their meeting. Indeed the defendant commonly kept and utilized chloroform for his own personal homeopathic use. His possession of it does not constitute arrangement of the means to commit an act against the victim. As it was not obtained by him for this purpose and moreover, it was a thing already and normally in his possession. Furthermore, chloroform is not a known killing weapon such that mere possession of it implies violent intent. It is a thing having a legal, normal and non harmful purpose. Possession of chloroform must be reasonably assumed it to be for its known and usual purpose and not for any uncommon, criminal or violent use. If, for instance, if a man runs over another man with a car, and kills him, it would be unreasonable to suppose that his purchase of and possession of the car was proof of his intent to commit vehicular homicide. And that obtaining a car constitutes the arrangement of the means to commit that act.
To accept steps taken by the defendant which has no definite causal connection to the events in this case as proof of Israr is to leave the criteria into what reasonably constitutes so open as to be objectively useless. For example,if his possession of chloroform is accepted as evidence of Israr, then so too is his possession of a computer and the fact that he subscribed to the internet and had a telephone line __ __ as all of these had a role in the events which led to the victim’s death. If inviting the victim to his flat is proof of Israr, then we might as rationally conclude that his having a flat at all is also proof of Israr. Indeed, if plausible explanations which negate Israr are discarded in favour of inplausible explanations which validate the claim of Israr at that point, Israr is provable by any and every action the defendant has ever taken. but this of course would be farcical. The truth is that no element of this case was pre arranged by the defendant for purpose of committing the crime which the case involves. Any steps the defendant took which may be claimed to prove Israr, in fact has its own more plausible explanation which proves absence of intent. There is nothing whatsoever to suggest much less to prove that the defendant planned and arranged to murder the victim. The objective facts of the case may be interpreted otherwise, more reasonably so, therefore, there can be no conclusion beyond doubt Israr is present in this case.
Tarassud is defined in the UAE legal code as ” a person lying in wait for another person in one or more directions either for short or long periods in order to kill that person or to assault him with any violent action” and if Tarassud is present in a case of intentional murder, the death penalty shall be mandated, because again this case is a clear case of manslaughter. It is not surprising that no aspect of tarassud is present as we shall explain below.
As previously stated, the death of the victim occurred due to his inhalation of chloroform which the defendant used to stop a sexual assault being perpetrated by the victim against Ms Foziya Nagash. Thus, the instant which led to his deaht was instigated by the victim himself, unexpectedly and the use of chloroform was a spontaneous reaction to that act. Implicit in the definition of Tarassud is the idea of a person waiting for an expected opportunity to ambush another person. Eg. hiding along a path that person is known to routinely use or waiting at some location that person is normally expected or even perhaps sabotauge a vehicle or equipment belonging to that person or regularly used by him or her for the purpose of causing them harm. In this case, the confrontation between the victim and the defenfant took place only when the victim attacked Ms Nagash. In order for tarassud to be present, therefore, it would need to be proven that the sexual assault was an expected and predictable act that which the defendant was lying in wait to utilize the attack as an opportunity to ambush the victim to cause his death. And this of course is highly implausible, unreasonable and entirely unprovable. It would need to be proven that the victim was such a compulsive and habitual rapist that his perpetration of sexual assault was something as routine and predictable with him as it is predictable with another person to take the same route to work or to visit the same cafe or to drive the same car. That is, the victim would need to be proven to have been prone to committing sexual violence to such a degree that his attempting to rape Ms Nagash was a reliable certainty for which a plan of ambush could be made. Aside from being an assertion having no evidence, it also would constitute an extreme defamation of the character of the victim. Tarassud is not supportable on such a premise. If it is claimed that Tarassud exists because the defendant invited the victim to this flat and that the defendant was thus “lying in wait” for the victim in his own appartment to ambush him upon his arrival, the preceding discussion of Israr has already negated this suggestion. In order for the invitation itself to support the claim of tarassud, it would need to to first be proven that the defendant invited the victim with the intention of killing him. i.e. that Israr was present. As this supposition has already been disproved Tarassud in this regard,is automatically nullified in the absence of Israr. Another condition upon which capital punishment becomes mandatory in cases of intentional murder is that, the killing occurs in conjunction with another crime. Eg. Armed robbery , rape , etc. In this case such a condition is even more clearly absent than the prior conditions of Israr and Tarassud. The victim’s death in this case not only did not occur in conjunction with another crime, but indeed, on the contrary, it occurred in consequence in the prevention of a crime being committed by the victim himself. As has been established, the defendant tranqualized the victim with chloroform to stop him from perpetrating an act of rape. Thus the action of the defendant was not taken in the course of a crime he was committing but rather a crime he was preventing. To state that the victim in this case died in conjunction with another crime being committed by the defendant is to say that it is a crime to stop a sexual assault in progress __ __ which is a repugnant assertion, as all will agree. It may be claimed that this condition is applicable due to the fact that the defendant used the victim’s credit cards after his death, but the connection between these two crimes is tenuous and not evidently causal. There is nothing to suggest that the defendant killed the victim for the credit card nor that the victim died during the course of a robbery. Rather, it most reasonably appears that theft of the credit cards was an action taken by the defendant subsequent to the victim’s death and without prior thought or planning. That is to say the theft of the credit cards did not in any way play a role in the victim’s death but was rather was an action taken by the defendant after the fact in reaction to the circumstances created by the death of the victim. This is supported by the fact of the use of the credit cards did not take place until well after the victim had died the following day or after, which undermines the supposition that the two crimes are related in terms of cause or motive. The victim did not go to the defendant’s flat for any business related purpose. There was no expected financial transaction to take place. It was a purely social function. There is therefore no reason to believe that the defendant expected the victim to be carrying either cash or credit car on his person. The defendant was also financially stable, is an educated professional not in need of obtaining money by criminal means. It is on all levels untenable to claim…