An interesting new law has been issued by HH Sheikh Mohammed Bin Rashid the Ruler of Dubai (Dubai Law No. 1 of 2017 – the "Law") which allows the public prosecutor to issue a criminal order that is decisive in the subject matter of the case, without the need for the case to be transferred to and looked at by the Criminal Courts. The Law will have, as we will explain below, vast effects and will be of interest to clients in the business community.
Summary of the Law
As per the Law, the Public Prosecutor will have the right to issue such criminal order only in the case of misdemeanours and contraventions, which are penalised by a "fine" only or "confinement or fine". In addition, and pursuant to Article 2.B of the Law, the Attorney General shall issue an order specifying which misdemeanours and contravention cases will come under the Law. Cases which involve minors are exempted from the Law.
The Law aims to accelerate and, at the same time, simplify the criminal proceedings without effecting the fairness of the justice system as well as to reduce the work load of the Criminal Courts.
The criminal order that the public prosecutor issues pursuant to the Law should be restricted to imposing a fine that does not exceed half of the maximum limit (which depends on case by case basis). This means that the public prosecutor is not allowed, under the Law, to issue a criminal order imposing a confinement and a fine that exceeds half of the maximum limit.
The Law goes on to state that the criminal order should include the following:
- date of issuance of the criminal order;
- name and personal information of the perpetrator;
- the charges brought against the perpetrator;
- the applicable articles of the law for the criminal action committed and for the punishments imposed; and
- the name of the public prosecutor that issued the criminal order.
Upon the issuance of the criminal order and, within 7 days, the Law gives any member of the public prosecution whose position is not lower than the head of the public prosecution, the right to amend or cancel the criminal order. In the event of cancellation, the criminal order will be considered as if it did not exist and the case will then be transferred to the Criminal Courts to be considered
As for the perpetrator, the Law has given him/her the right to challenge the criminal order within 7 days by filing an objection before the public prosecution. The filing of this objection will result in the cancelation of the criminal order and the case will then be transferred to the Criminal Courts for consideration. However, if the perpetrator withdraws his/her objection prior to the first Court hearing then the objection will be cancelled and the criminal order will be re-activated and considered final.
The Law has also given the Attorney General the right to amend or cancel the criminal order within 30 days from the date on which the criminal order has been issued or amended or from when the perpetrator has withdrawn his/her objection. In the event that the Attorney General cancels the criminal order then it will be considered as if it did not exist and the case will then be transferred to the Criminal Courts to be considered.
Any civil proceedings that are commenced should not affect the issuance of the criminal order.
This law will come to effect in 3 months from the issuance of the Law on 20 February 2017.
- The Vast Effects of the Law
Although the Law will only apply to cases of misdemeanours and contravention, and those cases which the Attorney General specifies in his order, the effects of the Law remain vast. As per the UAE Federal Penal Code, cases that can be categorised as misdemeanours and contravention are, amongst others, fraud (Article 399), issuance of a dishonoured cheque (Article 401), breach of trust (Article 404), and deception in commercial transactions (Article 423). This means that (subject to the Attorney General's order which is yet to be issued) cases of a commercial nature will fall under the remit of the Law and therefore the Law will serve the interests of the business community who ideally want their cases to be rapidly concluded so as to minimise the effect on their businesses. Another case of misdemeanour is when death is caused by fault or failure to perform duties imposed (Article 342). This misdemeanour commonly occurs on construction and work sites.
- The Beneficiaries of the Law
The Law will be beneficial for those who are affected by criminal investigations where their passports are detained. As at the start of any criminal case, the public prosecutor carries out an investigation during which a number of individuals are identified as potential perpetrators. To avoid these perpetrators from leaving the country and, to adhere to the investigation, the public prosecutor orders that the passports of the potential perpetrators are detained. The Law very much serves these individuals as the acceleration of their criminal proceedings would mean the case will come to an end faster than any typical case and they will accordingly receive their passports much faster. In addition, the Law is beneficial to those who are willing to accept a penalty being imposed (especially if that penalty is a fine) for sake of retrieving their passports rather than going through lengthy Court proceedings.
- The Public Prosecutor's Powers under the Law
With the above positive observations of the Law, we should highlight here that issuing the criminal order in the cases that fall under the remit of the Law is a liberty given to the public prosecutor i.e. he/she can decide to either exercise it or to simply treat the case as any typical case and progress it to the Criminal Courts. Further, even if the public prosecutor decides to issue the criminal order, this order can still be subject to cancelation with the case progressing to the Criminal Courts.
- The Effects of the Law on Civil Proceedings
One aspect that was not clarified under the Law is the effect of such criminal order on civil proceedings. It remains to be seen how the criminal order will be treated in civil proceedings the same way and have the same effect as a final criminal judgment.
Also uncertain is, if civil proceedings are commenced in an Emirate other than Dubai would the judge recognise the criminal order that was issued pursuant to the Dubai Law and allow it to be treated as a final criminal judgment. Surmise that we will not know the answers until the Law is put to the test and civil cases arise in which a criminal order is needed to be considered as evidence to support civil proceedings.