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Feb 17, 2006

Justice Lucas: El-Sayed will not be tried in absentia

Story PictureFor more than three years, the passport case has been slowly weaving its way through Belize’s judicial process. But tonight a decision in the Supreme Court has thrown a spanner in the works for Government prosecutors. Justice Adolph Lucas has ruled that the first defendant in the case, fifty-three year old Hassan El-Sayed, will not be tried in absentia. According to his written decision, Lucas agreed with the submissions of senior counsel Edwin Flowers who argued that because his client was not arraigned, that is, not given the opportunity to plead guilty or not guilty, the case cannot continue against him. Lucas admitted having the discretion to grant the application of the Director of Public Prosecutions, but he chose not to exercise that right. Following the ruling, D.P.P. Kirk Anderson vowed to appeal Lucas’s decision.

Kirk Anderson, Director of Public Prosecution
?I definitely think that Mr. El-Sayed should be tried in his absence because he was the one who deliberately decided to absent himself from the court?s proceedings against him. It is he who decided that he would essentially flout the court?s jurisdiction and jump bail, thereby not availing himself to the court in order to be tried. So I think in those circumstances the judge could and should have ordered that he be tried in his absence.?

?A person who can be tried in his absence does not need to necessarily have pleaded to the charges against him; if again, it is by his own deliberate act he has prevented himself from being able to have been here, for example, today, as Mr. Affif was to have pleaded to the charges brought against him. In other words, he is the one who escaped the jurisdiction of the court. He should not therefore be able to profit from his deliberate decision to deny the court its jurisdiction against him.?

Richard Hulse, Court Reporter
?And will you appeal the matter??

Kirk Anderson
?We most definitely are going to do that. I can assure you that we will be appealing to the Court of Appeal of Belize against the decision that was made, with respect to Mr. El Sayed this morning.?

But according to Lucas’s written ruling, it appears his decision not to try El-Sayed in absentia is due in part by the failure of the D.P.P. to correct errors in the indictment. He cites the fact that there were too many counts in the indictment and that the particulars for each count had no date of occurrence.

El-Sayed was arrested in January 2004, but when the case was transferred from the lower court to the Supreme Court, he failed to show up for the July first arraignment. But on that same day, defects were found in the indictment and the matter was adjourned until July twenty-ninth. On that date, both Gabby Affif and El-Sayed showed up, but the incorrect information had still not been changed. As a result, neither Affif nor El-Sayed was arraigned and the case had to be adjourned again. That was El-Sayed’s last appearance as he has not returned to the Supreme Court since. In October, Lucas confiscated his bail. His attorneys Edwin Flowers and Michel Chebat deny knowledge of their client’s whereabouts but have also declined to comment on whether their fees have been paid.

And while El-Sayed seems to have skipped town permanently, the second defendant in the case, fifty-eight year old Jabor “Gabby” Affif, was in court today and the case against him will continue, with trial set to begin on April nineteenth. Affif will be tried for sixteen total counts of abetment of uttering upon a false official document, forgery of an official document, abetment of forgery, and possession of false official documents. In July 2002, it was discovered that hundreds of Belizean passports and nationality applications had been sold illegally to unscreened applicants.

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