Tim Elliot: Welcome to Lawgical, the U.A.E.’s first, and still the only, we believe, legal podcast. My name’s Tim Elliot. As always, Lawgical comes to you from the Dubai-based legal firm, HPL Yamalova & Plewka, and here’s the Managing Partner, Ludmila Yamalova. Nice to see you.
Ludmila Yamalova: Great to be chatting with you, Tim, as always.
Tim Elliot: Good to have you back on, Ludmila. This time, it’s the new U.A.E. drug law. It’s the newly established Federal Decree Law Number 30 of 2021 on combatting narcotics and psychotropic substances. Now, it refines the law – I think it was the mid-1990s – 1994 or 1995, Federal Law Number 14, almost in its entirety. Now, the new law came into effect on January 2nd of this year. It is far more nuanced, far more specific than the previous law. I guess, what strikes most legal observers is Article 96 of the new law, and that is with regard to marijuana, the decriminalization of bringing in, possessing, importing, or transporting from abroad any food, drinks, or products that contain THC, cannabis, or marijuana for the purposes of consumption or personal use – here is the point – for first time offenders. That is what leapt out to me when I read the new law.
Ludmila Yamalova: True. But actually, it is a lot more nuanced than just that. Using that particular article and analyzing it further, (1) it is for first-time offenders. (2) It is also not marijuana itself, but rather a product of that includes some traces of marijuana. That is a huge difference. It is not just that you can bring a joint and the same provision would apply. It would not. It truly is, for example, let’s say some cookies or some sort of a tea, a product that includes it, or cosmetics, for example, that include some substances such as that. (3) Upon bringing it into the U.A.E. and in specific terms, it would apply if you were caught coming into the U.A.E., be it at the border or the airport, so in that context, not, for example, just within the U.A.E. That is the language. If you actually dissect it, there are a number of requirements. But you are right, that is one provision in this law that has caused a lot of excitement perhaps amongst the global community and, in particular, those who like to visit the U.A.E. or are residents of the U.A.E., and there has been a lot of discussion about the U.A.E.’s perhaps more liberal stance on drugs. Many, if not suggestions, but certainly questions with a wishful answer that the U.A.E. has decriminalized marijuana. That is not the case.
Tim Elliot: That’s very important to point out, isn’t it? I guess, Ludmila, the law takes a different approach to those deemed as first-time offenders, but by the same token, the serial offenders, the measures are as strictly controlled as ever, perhaps ever more so.
Ludmila Yamalova: Basically, what’s the excitement or what’s the relevance of this law? Let’s start from the beginning. As you rightfully said, this is a new law. The law was introduced just at the end of 2021 and it’s the Federal Law Number 30. It replaces altogether the previous law, which was Law Number 14 of 1995, which was also a federal law that was ultimately referred to as a drug law. This is a brand-new law. It is not just an amendment to the previous law. It is a full and completely brand-new source of legislation. The previous law is cancelled out, and you can throw it out the window, I mean, in simple terms.
This particular law, in relevant terms, is very different from the previous law because the previous law treated any kind of drug offenses as just basically one. There was differentiation or nuances between the types of potential drug offenses, be it consumption, or trade, or unintentionally bringing it into the country. It just treated anything related to drugs as basically as one and the same type of crime, i.e., drug trade, import, or possession. It was quite categorical in its interpretation of a drug and all encompassing and unforgiving in terms of how it treated drug offenses. Because of it, the punishment that existed also correlated to that overarching and all encompassing categorical definition of a drug offense, which meant there was always a jail sentence, and that was a minimum of 1 to 2 years of a jail sentence, and there was always a deportation that followed. Not only were you required at the minimum to serve at least a 1-year jail sentence, more likely 2+, but after that there was always mandatory deportation.
In short, basically, if you look at the old law, in summary the old law penalized and criminalized any type of drug related event even, such as inadvertently coming into the country and somehow having a piece of chewing gum in your pocket that had some traces of something, cannabis, for example, because there is no other legal source to rely on other than the previous drug, and any one of those offenses would be treated the same way. The person would ultimately have a criminal case filed against them. They would not be able to leave the country. There would be a judgment. The judgment would mandate at least 1 year of a jail sentence, if not more, and then they would be deported. Basically, that was the very broad brush or broad stroke that applied to all equally. That is where we were.
Now, where we are today, is that the law has introduced a lot more nuance and a lot more categories of types of crimes and who it applies to. In general, basically there is a lot more detail and nuance about what type of drug we are talking about, who is involved, where this event took place, and how many times. That is what the law breaks up.
If you look at the first categories, (1) what is the drug? (2) Who is being caught doing it? (3) Is it a first-time offender or the nth time offender? (4) Where? Is it at the entry into the country, at a nightclub, or at home, or at some sort of party? (5) How many times might this have happened? This is perhaps a summary of some of the elements that are embedded in this new law that are most relevant because it is on the basis of those elements that the entire law is structured.
Ultimately, it really comes down to punishment. The idea here, again, the overarching premise, and this is important to reiterate, is that in no way does the law decriminalize any kind of drug use or drug possession. It does not. These are the kind of questions we have heard, and we have received, such as, does this mean marijuana is legal in the U.A.E.? No. It is not. The law clearly states that drugs are illegal in the U.A.E. That’s it. That is the overarching principle.
However, in terms of how events related to drug possession or use are treated, it is more nuanced, more refined, and the punishment, therefore, is different. It applies differently to different people, depending on the drugs.
Now if you start with the what -what is it? What drug are we talking about? With regard to the what, I have to tell you, it truly is a minefield, and it really would help to have some kind of background in chemistry, if not, have a degree in chemistry to parse through this law because the law is accompanied by pages and pages of attachments of different chemical substances. Unless you have a chemical background or an interest in these kinds of substances, it truly is a minefield and difficult to comprehend. There are a lot of new terms that we have found ourselves surprised to be learning by virtue of being able to understand this law. The what is very important – what types of drugs?
Generally speaking, and this is important, cannabis is treated separately from other drugs in terms of punishment. Cannabis, or as it is often referred to as THC, tetrahydrocannabinol is the term. I am not sure if I am pronouncing it correctly, but basically that is THC.
Tim Elliot: Right.
Ludmila Yamalova: If you were to separate drugs, you would separate into cannabis, prescription drugs, and then you have all other drugs.
Tim Elliot: Ludmila, let’s start with the issue of cannabis, or THC, or products that include THC. We have seen a number of cases in the newspaper of people who have come to the country and accidentally imported something. In theory, that’s always been the story of all who have been caught here with THC in products that they brought in, perhaps unknowingly. That, I guess, is the reason why cannabis is treated slightly different under the new law.
Ludmila Yamalova: Correct. Perhaps for that reason, but also because of the cannabis as a substance itself is treated perhaps differently from the other more serious, hard core drugs. Some would even dispute if cannabis is a drug to begin with, but that is a separate subject. Cannabis is treated differently. It is also treated differently depending on the context.
One notable difference in this law is if we are talking about cannabis, or particularly THC, if there are any food, drinks, or product that contain THC or cannabis for purposes of consumption or personal use, they are treated differently. The key here is that it is food, drinks, or product which contain THC or cannabis and for purposes of consumption or personal use. This is very important. It is not just bringing cannabis or a cigarette or a joint or a little jar or grass or hemp in your luggage. It actually has to be included in a product. That is what we are talking about. If there is a product that contains THC, then it would be treated differently, but even then, it must not be done for commercial purposes, but rather for purposes of consumption or personal use.
So, if you are caught, for example, receiving a shipment of goods that contain THC and it is a whole set of containers, that would not be subject to this particular provision because it would not be for personal use or for consumption. It is really quite nuanced. But, any products, drinks, or food that do contain THC, and you are bringing them for purposes of consumption or personal use, are not punishable as importing, which is very important, because importing in general is a felony and a serious offense.
When we are talking about drugs, there are different types of activities, if you will, that are usually punishable and still are punishable and it is very similar to other laws. There is possession. There is consumption. Then, there is trading. There is importing. There is soliciting and so on and so forth.
Tim Elliot: So, would it be reasonable to say if you are caught with something that includes THC, but it is for personal use, you’re not prosecuted for importing, i.e., potentially you are not a trafficker is the point then.
Ludmila Yamalova: Exactly. Correct. Correct. Yes. You are not deemed to be a trafficker, and because of that, it is not punishable, believe it or not, if it is your first time.
Tim Elliot: Right.
Ludmila Yamalova: If it is your first time, it will also be confiscated, and basically not otherwise pursued or punishable, but remember the requirements here. The requirements are that this THC is contained in some sort of a product or food or drink, that is being brought into the country for purposes of consumption and personal use, and that it is your first time. Basically the language of the law also suggests that it has to be upon coming into the U.A.E., upon arriving, so if you are found at a party having the same product, it is not clear whether this particular provision actually would apply because it seems to really apply more to visitors, residents, or whoever is coming into the country and is caught with this product upon entry to the U.A.E. In those cases, there is no crime. There is no criminal case, and the product is confiscated.
But as many would surmise, because there is so much emphasis on the first-time offender, then the speculation is that there will be some kind of a note in the file somewhere. Even though there will not be a criminal case, there has got to be a note somewhere. Some file will be opened somewhere that event and that person will be registered, because how else would you know that the next time that person comes through that they are not a first-time offender? We don’t know the nuances of how it is actually going to be applied, but there is a presumption that there has got to be some kind of documentation of these events as well. There will not be a criminal record and you will not go to jail, but I would assume it is not just that customs official will come and confiscate it and shake your hand and let you go. I think there will be some formal process to document the event.
Tim Elliot: Sure.
Ludmila Yamalova: That is as far as THC is concerned, or cannabis. Then there is also prescription drugs.
Tim Elliot: This is interesting because prescription drugs are obviously very strictly controlled here in the Emirates.
Ludmila Yamalova: Yes, indeed. In the past as well, they were more or less treated the same way as any other drugs. Now there is a bit of a differentiation. Again, it is very nuanced, and we are parsing through it day by day, but basically there is a separate category for prescription drugs. Also, in the case of prescriptions, for example, if a higher dose is consumed then it is treated the same way as any other drug offense. In other words, if you are trying to rely on the use of prescription drugs, you have to have the proper documentation showing why those drugs are actually prescribed to you. But in the event that they are being misused or abused, then they are treated as an offense or as a crime. In those cases, the punishment we are talking about here is when the prescription drugs are being abused, if a higher dose is consumed.
Then there is a gradation of punishment in that case. For example, for first-time offenders, there is a minimum of 3 months of a jail sentence or a fine of 20,000 to 100,000 dirhams. This, however, does not apply to cannabis or hemp. This is for prescription drugs for consumption or personal use. It excludes cannabis because cannabis is dealt with differently. For the second-time offenders there is a jail sentence not less than 6 months or a fine of 30,000 to 100,000. Let me just pause on that.
Here what we have just seen is that the punishment for consumption of drugs or personal use is treated differently from other types of drug-related offenses. Before they were all treated the same, and the punishment was at least 1 to 2 years of prison and deportation. Here we are talking about a minimum of 3 months. Now we have just gone from 1 year of a jail sentence to a minimum of 3 months or perhaps even zero because it is either a minimum or 3 months or a fine of 20,000 to 100,000. In other words, before there was no “or.” There was always a jail sentence. Now there is an option for just a fine without a jail sentence. This is important, and we will talk about deportation later.
As an example, let us say somebody is misusing drugs, but it is really for their own consumption or personal use, they don’t automatically become criminals in this country, go to jail for a year, and get deported. They will still have a criminal record perhaps, but they will just basically pay a fine and will be allowed to stay in the country.
But as the number of offenses increase, so do the fines. So, for the second-time offenders, the jail sentence goes up to 6 months or a fine of 30,000 to 100,000 dirhams. Once again, this is kind of the second strike. It is also perhaps more forgiving and that is if you are caught a second time around, you still are not necessarily going to jail because there is an “or”, which is you can just pay a fine and then go about your life. That is a huge departure from the previous application of the law.
However, if it is a third-time offense or more, then we are talking about imprisonment of not less than 2 years and a fine of not less than 100,000 dirhams. If it is your third time plus, then there is no more “or.” There is definitely imprisonment, and there is a fine.
So, what we have just moved from in the previous law is a minimum offense or a minimum punishment of 1 year in jail and mandatory deportation to confiscation and a basic slap on the wrist, or just fines, and only if it is your third time, again we are talking about consumption and personal use, then you are facing imprisonment. There is quite a broad margin now in terms of the punishment that applies to these kinds of drug-related offenses.
Tim Elliot: That really is a three-strikes-and-you-are-out basis, I suppose, in many ways. That is for prescription drugs, Ludmila.
Ludmila Yamalova: Yes.
Tim Elliot: So, let’s move to the so-called hard drug, the heroins and cocaines of this world. I guess they’re in the next bracket.
Ludmila Yamalova: Those drugs are absolutely, most definitely still criminal.
Tim Elliot: Yes.
Ludmila Yamalova: At that point, there is always a mandatory jail sentence and there is always a fine. Again, there is a whole list of drugs. It really is hard to figure out under which one of those different categories and subcategories that something like heroin falls in. But it is a hard drug, and there are much more severe provisions and penalties that apply to those kinds of drugs and it also depends on if it is personal use or whether it is trading or importing. The penalties go all the way to being in jail for life, for example, especially if you are caught doing this in public spaces or under aggravating circumstances. This, is in many ways, can also be considered as drug trafficking, so the penalties can be 300,000 dirhams and just the fines, but there is almost always a jail sentence and we are talking about 5 years, 7 years, 10 years, depending on what, where, who, and how many times. In those cases, deportation, by the way, is optional now. In the past, deportation was mandatory. Now deportation is optional if it is for consumption or personal use or possession for purposes of consumption. Obviously, with the drug trafficking and importation, deportation is still mandatory. Anything to do with more hardcore drugs, in particular trading activities, is very, very strictly penalized here, and it is not something to be taken lightly.
But what’s interesting is there are a few other nuances to the law. Again, it depends on the case. There are so many different levels. But sometimes instead of a jail sentence, the authorities or the courts can prescribe treatment. That is fairly new, and treatment is now an option. If you go back to your example of heroin, now the law specifically allows for a judge to decide, and instead of locking a person in jail for let’s say a heroin addiction or some kind of drug addiction, to send them to treatment facilities. There are some treatment facilities in the U.A.E. That is instead of serving a sentence. There will still be a fine, but at least the person will receive medical help. I think that’s quite encouraging, especially for those who have a serious addiction. That is one interesting angle.
The other interesting angle here is there is a whole set of articles that perhaps may provide impunity to some, to informants. Basically, if you notify judicial or administrative authorities, some of this punishment can actually be waived.
Tim Elliot: Interesting.
Ludmila Yamalova: Yes. That is very interesting. Basically, it encourages people to come forward and rat out the actual offenders, not so much the consumers, but those who are providing drugs, the drug traffickers. In those cases, if you cooperate with the authorities, then basically, there are provisions in the law that informants can be provided with much more lenient punishment and sometimes actually can trade punishment just for information. I think that is a really interesting angle, especially, as you can imagine, there are so many parties that go on and people get caught at parties because they are in the party mode and they do something they shouldn’t do in a country like this and then they get apprehended by the authorities, their lives can be pretty damaged by having a criminal record, but if instead they could leave the authorities to the source in exchange for having no criminal record, you can see this kind of plea bargain is not a bad deal.
Tim Elliot: There is another aspect to this new law as well, isn’t there, that the law provides pretty strict penalties if you set up a place or I guess that includes hosting a party where drugs are consumed.
Ludmila Yamalova: Absolutely. It is the place that is the where. The place is where you consume or where the drugs are found that really matters because if you, like you said, set up a home club for purposes of hosting drug fueled parties, that is an aggravated offense. It could be an aggravated offense for many reasons. One is because you are setting this up and encouraging. It is no longer just about consumption or possession. You are incentivizing. You are encouraging and inciting others basically to commit crime. That is a different degree of a felony. It also depends on who is at the party. It could be underage people, kids. There could be women. There is a whole confluence of factors which could make these offenses more severe because of the venue and the people who happen to be there at that venue. In those cases, for drug trafficking, there is a minimum of 5 years in jail. That would be an interesting sort of point because for those who want to have a good time and want to have parties and host these good times, they have to be very mindful that this is still very much against the law, and the penalties have increased. In the past, these penalties were 20,000 dirhams. Not it is a minimum of 50,000 dirhams and a prison sentence minimum of 5 years, as was the case before. If these kinds of offenses are happening in places like public gatherings, educational or sport institutions, or places of worship, it can be considered aggravating circumstances and therefore lead to more severe punishment. Involvement of certain types of members also could be considered to be aggravating circumstances, such as a female, a juvenile, person of determination, or somebody under the influence of alcohol. It’s very much still treated very seriously. Drugs are still expressly and unequivocally against the law in the U.A.E. and are still punished under the criminal law and can be quite severe. But there is a little more leeway in terms of how drug-related events and offenses are treated. There is perhaps a little bit of grace period for the first-time offenders.
Tim Elliot: It is a tough law to define, but that’s more on the newly established Federal Degree Number 30 of 2021 specifically on combating narcotics and psychotropic substances, the new drug law here in the U.A.E. That is another episode of Lawgical. Ludmila Yamalova is the Managing Partner here at Yamalova & Plewka, as always, our legal expert on Lawgical as well. Thanks, Ludmila.
Ludmila Yamalova: Thank you, Tim. Always great chatting with you.
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