Criminal Justice System in United Arab Emirates - Research Paper Example

Criminal Justice System in United Arab Emirates Introduction The population of UAE in 2012 has crossed 5.3 million as compared to just 4 million in 2003. The majority of the population of UAE consists of male expatriates from different cultures and sudden changes in UAE society has created a great peril to UAE’s criminal justice system (hither after will be referred as CJS). Hence, there is a compulsion on the UAE’s criminal justice infrastructure to match with these changes. The overall accountability for law and order and public safety is vested with the Ministry of Interior in UAE. For maintaining the public order and for stopping and investigating the crimes in UAE, the national police are assigned with responsibility, which functions under the Interior ministry of UAE. In borders, oil fields, strategic utilities and other important locations, National Guard which is a semiautonomous body is assigned with the authority to guard. The National Guard functions as a reserve for the metropolitan police and regular forces whenever there is a need. Three types of courts are prevalent in each Emirate in UAE namely criminal, Shariah and Civil. While Shariah courts in UAE deals with some family issues between and among Muslims whereas criminal court is dealing with criminal offenses whereas a civil court deal with commercial/civil issues. In criminal offenses, there is no application of Shariah laws. This research essay will analyse in detail the criminal justice system in United Arab Emirates, and the relevant laws in UAE, detailed procedure for criminal investigation, criminal procedure under Shariah, the criticism against UAE’s criminal system, the ways and means to improve the existing criminal justice system in UAE. “The UAE Legal System” The constitution of UAE declares that Islam as its official and national religion and offers for Islamic jurisprudence namely the Shariah as its main fundamental legislation. The criminal law in UAE can be categorised into two-fold legal system namely; Shariah which embraces Islamic legal doctrines and emanates from four roots namely the holy Quran, the sayings and acts of Prophet Mohammad (hadith), the way of reasoning by correlation (qiyas) and the juristic harmony of Muslims’ religious and legal intellectuals (ulema). A criminal /civil code, based in major way from western ideology of criminal law. (Mostyn 74). UAE is a governed by a separate Constitution from 1971 and is a federation of seven Emirates. UAE is a federal state which is comprised of 7 different Emirates. UAE constitution permits each Emirate to have their authority over some particular provinces of administration and control, which includes the judicial system. Hence, each Emirate in UAE is having both federal courts and local courts. UAE’s federal law is being followed by these federal and local courts which are enacted by the UAE’s Supreme Council. In addition to the UAE’s federal law, the Emirates are also having their own local regulations and law, which are enacted by these each Emirate. When local of an Emirate is found inconsistent with the UAE federal law, then, in such cases, UAE federal law will prevail. Across the UAE, law No.9 of 1976 is a federal law of UAE and is applicable to all criminal courts. In UAE, each Emirate has its own criminal court and has three phases for litigation which comprise the Courts of First Instance, the Courts of Appeal and then the Federal Supreme Court. (Ablad & Mansoor 305). “Police – Training and Development” Those selected for the officer for police department will have a three-year training program at the Police Academy of UAE. In the Kuwait Military College, training for National Guard Officer is given. Women also employed in some police departments like criminal inquiries, investigations and as security at the airport. The criminal investigation department is accountable for investigating the ordinary criminal cases. (Reparationlaw.com 2012). Criminal Cases Procedure in UAE The criminal procedural law has been codified through the Federal Law No (35) of 1992, which states the various procedures to be followed in criminal cases in UAE. The above Federal law consists of a set of regulations that enumerate the procedures and methodology to be followed during criminal investigation, trial of those charged with criminal offence, giving judgment, various conditions for appealing to higher courts in criminal cases and the enforcement of judgment. The Criminal law of UAE appears to maintain a fine balance between the safeguarding the interest of the public and to have respect for freedom of individuals in UAE while ensuring the proper measures that no criminal activities get away without punishment. As per UAE law, no one can be slapped with criminal penalty without establishing the guilty. Except under the conditions and circumstances detailed in the criminal law of UAE, no one can be apprehended, jailed, searched or sentenced. As per Article (2), an individual may be detained or imprisoned only in places authorised for that purpose, and for the duration mentioned in the warrant issued by the appropriate authority. (Reparationlaw.com 2012). Under Article(3), the police do not have power to enter into any individual’s house except under the scenarios mentioned in the law or where there is a request for help from such an individual’s house or in case of a serious threat on property or life. As per Article (37), the public prosecution is assigned with powers to initiate a criminal action without a request or complaint when he comes to be aware about the happenings of a crime and should report the same to either to a judicial official or the public prosecution. As per Article (48), if a misdemeanor or felony is committed by an offender, those witness the same can hand over such an offender to the police authority, and no arrest warrant is needed in such cases. As per Article (25), in case, where an accused has suffered prejudice due to the malevolent charge leveled, he can approach the court for compensating him for such charge. In such case, the criminal court can direct such a person who is responsible for such false accusation or disposition to compensate the sufferer for the damage suffered. As per Article (4), the accused has a right to demand the services of an attorney from a court in UAE when such accused is punished in a felony with provisional imprisonment. In such cases, the court can allow the same after making necessary verification that the accused financial position is weak to appoint an attorney. (Reparationlaw.com 2012). Broaching and Continuing Criminal Action in UAE As per Article (7) of the Federal Law No. (35) of 1992, except in the background detailed in law, the Public prosecution has the exclusive authority to initiate and pursue a criminal case. However, it is alleged that under UAE Criminal Justice System, the public prosecutor is vested with abnormal authority as they can order detainees to be retained for twenty-one days even without any charge. Further, the Courts can grant further thirty-day extension of such retention for an endless period and in such cases, there is no necessity on the part of prosecutors to file charges against such detainees. Due to this, an accused individual often has to be in jail for weeks or months without any access to an attorney. UAE authorities in March 2008 detained an American businessman namely Zack Shahin on the charge of corruption –associated offences. Without any charges, he was held for nearly thirteen months. Shahin alleged that he was kept in solitary imprisonment, denied food for three days, harsh interrogation methods were pursued, and he was intimidated with cruel torture. (europarl.europa.eu 2). As per Article (11), on the basis of the complaint given to a criminal investigation officer or to a public prosecutor, a criminal prosecution can be initiated. Alternatively, a complaint may be handed over to any police officer at the scene of the incident where an accused was caught red handed. Investigation and Convicting the Convict As per Article (44), at the scene of the crime or where a culprit has been caught red handed, the judicial officer who is at the spot of the crime can order the people who present at the scene of the crime not to leave till a report is prepared. The judicial officer has the authority to compel anyone who is present at the scene of the crime to give his statement about the crime. Under Article 45, a judicial officer may order for the apprehension of the accused at the spot of the crime scene with adequate evidence for the commission of crime. As per Article 46, the judicial officer may obtain an arrest warrant in favour of the accused if he is yet to be caught, which has to be detailed in the report. Further, the arrest warrant so issued is to be enforced by one of the public officials. (Reparationlaw.com 2012). As per Article (47), immediately after the arrest of the accused, the judicial officer should record the statements from the accused. If the accused does not offer any evidence in his support, he should be immediately presented to the public prosecution within 48 hours. Within 24 hours, the Public Prosecution has to question the accused and should make an order either the release or secure his arrest on the basis of the interrogation. Searching of Residences and Persons: As per Article (51), where under the scenarios where the accused arrest is permitted as per the law, the judicial officer is having the right to search the individual. The judicial officer has the right to frisk the accused to find out what is in his clothes , body or possessions from the things or leftovers associated with that of crime or wanted for the purpose of investigation. As per Article (52), if a female happens to be an accused, then search should be performed by a female allocated by the judicial officer for this purpose after getting an oath that she would carry out her obligations truthfully and honestly. As per Article (53), only with a search warrant from the public prosecution, a judicial officer should search the accused residence. With strong doubts that an accused is hiding some important evidence like papers or objects, a judicial officer can search the residence of an accused who has been caught red handed, which may help to unravel the truth. As per the manner detailed by the law, the search and seizure should be carried out by a judicial officer in search of papers or objects in the residence of accused. (Reparationlaw.com 2012). “Investigation by Public Prosecutor” As per Article (65), in serious crimes as well as in misdemeanors, a public prosecutor can sue motto initiate the investigation proceedings. There is a need that investigation should be carried out in Arabic. As per Article (70), if the accused, the witnesses, the litigating parties or others do not know Arabic and if the public prosecutor is of the opinion that their statements are vital to the investigation, an interpreter can be engaged by the prosecution who has to take an oath that he would exercise his duty truthfully and honestly. “ Criminal Cases and Jurisdictions “ As per Article (139), in all criminal cases, the jurisdiction over the crimes is the Court of First Instance which is also known as the “Felonies Criminal Court” which is chaired by three judges. For all the petty offences and the misdemeanors, a single bench will have the jurisdiction within the court which is known as the Misdemeanors Criminal Court. In some criminal cases, the jurisdiction of the Federal Supreme Court is attracted. It is to be noted that Federal Supreme Court’s writ does not applicable to Dubai, Abu Dhabi or Ras al-Khaymah within UAE. In UAE, lots of foreigners occupy many pivotal positions in the judiciary, thereby making them subject to political influence – since they can be deported out of the country easily. Moreover, the local rulers of Emirates have the power to reassess the criminal cases before the same is referred to prosecutors, and these rulers have authority to review sentences as well. It is to be noted the rulers of the Emirates have unrestricted power, which surpasses those of any court. (Katzman 7). Some critics are of the opinion that the proposed draft law that is intended to reorganize the UAE’s judicial system by establishing a “ Federal Judicial Council “ with the authority to make judicial appointments, which would be chaired by Khalifa , the UAE president. In that body, the deputy of the Khalifa would function as the chair person of the Federal Supreme Court. Under the proposed new proposal, the ministry of justice may not function as an independent body and could destabilize the judicial independence of UAE. (Katzman 8). Notification to be given to Parties in Criminal Cases in UAE As per Article (156), in case, if a criminal case has been referred to a Criminal Court, the accused should be asked to appear before the recognized court as outlined in the referral order by the public prosecution. As per Article (158), the notification in this regard shall have to be served well in advance before the court sitting time in minor offences by at least one day in advance, three days in case of misdemeanors and ten days in case of felonies. (Reparationlaw.com 2012). Accused Appearing before the Court and Hearing of the Case As per Article (160), for misdemeanors or in felonies which carry a punishment other than fine, the accused should appear in person before the court. In the remaining cases, his attorney can present before the court on behalf of the accused and if the court orders the accused to be present even in minor cases, then, it is the duty of the accused to be present before the court. As per Article (161), the hearing in criminal cases in UAE will always be public. On considering the public morals or order, the court may select to hear the case either partly or entirely in a closed session or to stop some persons from attending the hearings. As per Article (164), no shackles or handcuffs should be used for accused when they are produced before the courts, but police may have close observation of the accused in such cases. As per Article (165), in case, if the accused has admitted the charges leveled against him, the court, on the basis of his confession, will issue a decree even without bearing the versions from witnesses. In case, if the accused refutes the charges leveled against him, the court shall hear the statements from witnesses and issue a final verdict. In case of offences where death punishment is to be awarded, the court will itself complete the investigation. Appeal As per Article (230), in criminal offence, the verdict issued by the Courts of the first instance can be appealed either by the public prosecution or by the accused himself. In case of a death verdict, it is appealable in its own legal privilege and its execution may be stayed. As per Article (230), the appeal against the verdict of any court shall be filed within fifteen days from the date of award of the verdict. (Reparationlaw.com 2012). “ Implementation of the Courts Judgment “ As per Article (272), in all criminal cases, the public prosecution is responsible for implementing the verdicts and may directly ask for, the help from the public authority if necessary. (Reparationlaw.com 2012). “ Financial and Economic Crimes” Islamic law “Shariah” recognizes “financial and economic” crime which as though is non-violent, but is prone to affect badly on the welfare of the people. Money laundering, corruption, taking financial benefits by fraud and deception and obtaining wealth unlawfully are falls under financial and economic crimes. Under Shariah, criminal acts are forbidden and there are prescribed punishment for such offence. (Lippman et al 37). Thus, crime under Shariah can be defined as any legal ban taught by Allah which infringement necessitates a punishment prescribed as per shariah. UAE in 2006 promulgated a federal law on preventing cyber crime, which is called as UME Cyber-Crime Law No.2 of 2006. As per Article 10 of the above Act, any individual who involved in internet fraud, forgery and phishing will be punishable with one-year imprisonment or a fine of 30,000 DH or both. Under Islamic law, intellectual property theft and cyber piracy are classified as economic crimes. (Arowosaiye 2008). Article 11 of the above Act stipulates that anyone who receives the data of credit card through any high-tech or by use of the internet is punishable with an imprisonment of one year and fine of 30,000 Dh. As per Article 2 of the above Act, any individual who has engaged in publishing information through web or setting up a website under fictional names with aim to help to propagate the ideologies of terrorists shall be punishable with a sentence of 5 years. Article 2 of the above Act states that the money derived from illegal means or laundering of property as a criminal offence with an imprisonment of 7 years or by of 300,000 Dh or both. (Arowosaiye 2008). As per Article 412 of the UAE penal code (law no 3.of 1987), dishonour of a cheque is a criminal offence and the drawer or the person who signs the cheque is liable under penal code. The police will accept the complaint where the dishonored cheque is given as security and will be transferred immediately to the public prosecution department. “ Shariah Law and Crimes “ The UAE constitution declares that Islam is its official religion, and Shariah is its fundamental source of law. The meaning of crime under Shariah law is the criminal acts banned by the Islamic Penal Code and supported by relevant punishment in the event of infringement. Thus, crime under Shariah means an unlawful act that injures a person or his assets. Moreover, crime connotes any act against justice and morality. In a firm legal parlance, under Islamic jurisprudence, crime connotes criminal actions that are proscribed by the Shariah for which Allah stipulated a flexible punishment or a Hadd. (Arowosaiye 2008). According to Shariah, payment of blood money in case of injury or death is permitted, and this is also being followed in UAE in criminal cases. Crimes like fornication, desertion of Islam, theft, adultery, murder and homosexuality are classified as “Al Hudud” or crimes and punishable with the penalties like amputation of arm and flogging. (Hamade 2011). Amnesty International in its 2010 report heavily censured the death sentences awarded under Islamic Shariah law in UAE. As per the Amnesty report that in UAE, in 2009, death sentences were awarded for rape, murder and drug trafficking offences. It also came heavily on the practice of UAE justice system to award death sentences on minor who is less than 18 years old under Islamic Shariah law. As per a judge in UAE, the death sentence is inevitable for murder and a judge cannot surpass it. He further added that murder is a matter that is related to the victim’s family and a judge cannot ignore it unless diyya (blood money) is paid to the victim’s family or the latter forgives the killer. If death sentence is not awarded for a murder where a blood money is not paid, the judge is of the opinion that the victim’s family will try to take revenge, and this would again result in social issues in UAE. The Judge is of the opinion that since Shariah law is the fundamental law in UAE and Shariah law also stipulates that death punishment should be awarded for theft, drugs, adultery, and alcohol-associated offences. Amnesty International also criticized the UAE for awarding children less than 18 years with death sentences as per Shariah law, which is against the international laws which prohibit the same. (Yessir 2011). UAE & International Conventions Article 125 of the UAE states that each and every government in Emirates to initiate all required measures to make sure the implementation of the rules and regulation by the federations and the international agreements and treaties, and it states that UAE federal government should see that the required local regulations , laws , orders , decision to place this into effect. It also confers on the federal bodies of Emirates “the authority to oversee the functioning by the local government, international treaties and agreements, and the federal judicial decisions. (Abed & Helyer139). It seems that UAE is following a monist doctrine. International instruments espoused by the Emirates in UAE are obligatory on all federal officials of the Emirate. In the majority of cases, all state institutions and the courts are warranted to follow the international instruments even in the absence of non-adoption of domestic instruments to that effect. (Ablad & Mansoor 305). General Criticism The UAE criminal justice system is often come under severe censure, particularly when expatriates are involved. Many human rights violations’ reports have censured the arbitrary arrest of non-citizens and expatriates during the financial crisis in 2008 and 2009. Some human rights group vehemently condemned the conservative –dictated justice system of UAE for intimidating to prosecute a French expatriate who was just 15 years –old for homosexuality, which is an offence in UAE. A UAE judge on May 2011 awarded a sentence of one month to an American for possessing the handcuffs of police. (Katzman 9). The Trafficking in Persons Report for 2012 founds that UAE officials have initiated prosecution and punished offenders of sex trafficking. Nonetheless, UAE has been criticized as less diligent in preventing forced labour, which include ban on movement, illegal custody of passports, defaulting on the wage payments, intimidation, sexual or physical abuse. Though the 2011 report praises the UAE government with sustained law enforcement initiatives against sex trafficking but there has been reported failures to initiate steps to prevent or punish labour felonies. (Katzman 9). The European Parliament passed a resolution on Human Rights situation in the UAE on 25th October 2012. EU Parliament resolution alleged that UAE has speeded up its onslaught on human right advocates in 2012 by detaining 64 persons without any formal charge and there were accusations of torture and no legal assistance was provided to those political detainees. Those Emirian lawyers who provided legal assistance to those political detainees were reported to have been subjected to intimidation and harassment and some non-Emirian lawyers who assisted the political detainees were deported on the ground of national security. European Union also expressed its great concern about repression, assaults and intimidation against human rights activists, civil-society actors and political activist. EU also demanded for the unconditional and immediate release of all political prisoners and such political detainees who have been alleged as law infringers by UAE should be presented before a judge, be charged for an offence and should be offered legal help of their choice. (“Reparation Law 2012”). The British Medical Journal has demanded the immediate release of Dr Cyril Karabus who was arrested on 18 August 2012 on the charge of manslaughter of a 3 year –old girl suffered with blood cancer to whom Cyril gave treatment in 2002 while he worked in UAE. Cyril was arrested while he transited on a holiday flight through the Emirates in August 2012. It was claimed by his supporters that he was being refused proper access to legal documents to defend his case. It was alleged that Cyril re-trial was flawed by administrative and procedural failures, including the absence of any evidence files and the incapability of UAE officials to get support from the deceased girl’s family. As per 2011 Deloitte report that expatriate doctors, and nurses are reluctant to pursue medical practices in UAE as laws of UAE has authorised UAE citizens to start criminal action against expatriate medical practitioners on medical negligence ground.(Fitzgibbon 2012). Conclusion There is a need to reform the UAE criminal laws. Some draconian provisions in the UAE Criminal Justice System where the public prosecutor is vested with abnormal authority as they can order detainees to be retained for twenty-one days even without any charge.” This should be revamped, and charges should be framed for all those who are arrested, and no detainment without the court order should be introduced.” The fact that the local rulers of Emirates have the power to reassess the criminal cases before the same is referred to prosecutors, and these rulers have authority to review sentences as well and this has to be withdrawn, and fair trial should be ordered for all cases. Further minors should be given a lenient view where no death sentence can be awarded to a minor, and a minor offender can be lodged in the Juvenile prison instead of place him in the prison along with the adult offenders . Works Cited Abed, Ibrahim al & Hellyer, United Arab Emirates: A New Perspective. London: Trident Publishing Ltd, 2001. Abiad, Nisrine & Mansoor, Farkhaanda Zia. Criminal Law and the Rights of the Child in Muslim States. London: BIICL, 2010. Arowosaiye, Yusuf Ibrahi.Economic and Financial Crimes and ICT Infrastructure: The Islamic Criminal Law Perspective. Penang: Malaysia, 2008. Europarl.europa.eu. “UAE –Human Watch.” 4 May 2010. 1 December 2012 Fitzgibbon, “Will. Doctor’s Detention Puts UAE Criminal Justice in the Spotlight.” 11 October 2012. 2 December 2012 Hamade, Diana. “Defining Shariah’s Role in the UAE’s Legal Foundation.” 27 June 2011. 2 December 2012 < http://www.thenational.ae/thenationalconversation/comment/defining-sharias-role-in-the-uaes-legal-foundation > Katzman, Kenneth, “The United Arab Emirates (UAE): Issues for U.S.Policy.” 4 October 2012. 1 December 2012< http://www.fas.org/sgp/crs/mideast/RS21852.pdf> Lippman M, McConville S & Terushalmi, M. Islamic Criminal Law and Procedures. An Introduction. London: Preager, 1988. Reparation Law. “European Parliament Resolution on Human Rights Situation in the United Arab Emirates.” 27 October 2012.2 December 2012 Reparationlaw.com. “Procedures for Criminal Cases- United Arab Emirates (UAE)” 21 September 2012. 2 December 2012 < http://reparationlaw.com/caselaw/procedures-for-criminal-cases-united-arab-emirates-uae/> Yessir.” UAE Judge to Amnesty International on Death Sentence Under Shariah Law.” 6 April 2011. 2 December 2012 < http://www.abigmessage.com/uae-judge-to-amnesty-international-on-death-sentence-under-sharia-law-a-judge-cannot-ignore-it.html > Read More