Death-row woman is freed on appeal

ABU DHABI // An Emirati woman has been freed after spending more than seven years on death row after a high court adopted an ancient tribal justice mechanism.

ARM was convicted by Abu Dhabi Criminal Court of First Instance of shooting her brother-in-law in the head with a handgun at his home in Al Gharbia in January 2004.

She initially admitted killing him, saying she had done it after he twice raped her, but she retracted her confessions before the court and insisted they were given under duress.

The judges, however, found her confessions to the police and prosecutors convincing and sufficient to sentence her to death.

She appealed, but the Court of Appeal upheld the sentence. She appealed again to the Court of Cassation, which found that her confessions were inconsistent and did not match the forensic tests, and were therefore inadmissible.

The court sent the case back for a retrial and the appeals court sentenced her to life.

The case landed again at the Court of Cassation, where ARM's defence lawyer, Nashwa al Qubaisi, argued that, with the confessions struck out, there was no evidence against her.

However, the family of the victim insisted she was the killer, citing her confessions to police and prosecutors.

In such murder cases, judges can adopt a rarely applied ancient tribal justice mechanism known as Al Qasamah, or "wager of law", which links innocence or guilt to an oath.

The system was used by Arabs in pre-Islamic times but endorsed by the Prophet Mohammed in the case of murder.

According to the system, a person or people would be asked to swear to the truth of something they knew, but did not see.

Fifty family members of either side must take the oath.

The oath is annulled if members of the other family swear to the contrary.

In the absence of 50 family members who meet the requirements - adults and mentally fit - judges may ask available family members to swear several times.

Both families already refused to take the oath, unsure of her guilt or innocence. ARM swore she did not kill the man and the Court of Cassation acquitted her.

Mrs al Qubaisi argued in that court that the lower courts had erred in ignoring ARM's retraction of her confessions.

"Whereas this court had reversed the previous decision, and settled in its belief and conscience that she was coerced to confess ... she must be acquitted," she said.

She said her client had endured "psychological, neurological and physical pressure" and had wanted to "save her husband, siblings and relatives from torture".

"A person should not be convicted based on their confession if the confession is contrary to the facts and reality.

"It does not harm justice if a criminal is spared a punishment [due to insufficient evidence], it is better than [if] an innocent person is put behind the bars."

The man must have been killed by another person who had a grudge against him, she said, citing the rage of ARM's husband - the victim's brother - after he found out she had been raped. Maids testified that the man had also raped ARM's sister and threatened to rape her niece as well.

That, she argued, gave many people the motive to kill him, and given the lack of evidence against ARM there was no reason she could be convicted.

The decision is final.

hhassan@thenational.ae