Tim Elliot: Hello and welcome to Lawgical, wherever and by whatever means you’re listening. This is the regular weekly podcast from the Dubai-based law firm, HPL Yamalova & Plewka, still the Gulf Region’s first and only legal podcast. I’m Tim Elliot, here again at the firm’s offices on the 18th floor of Reef Tower in Jumeirah Lakes Towers in sunny Dubai with the Managing Partner, Ludmila Yamalova. Good to see you.
Ludmila Yamalova: Good to see you too, Tim. Thanks for being back.
Tim Elliot: Every week we consider legal questions particular to the U.A.E., the United Arab Emirates. You’re always welcome to get in touch to ask for legal answers. The best way is via LYLawyers.com. In this edition, we’ll be discussing the U.A.E.’s penal code and general criminal matters, but also the fine line between criminal and civil cases. Now, Ludmila, I’m going to come to a specific case in a moment, but can I start with a request for a definition of a legal term often heard here in the U.A.E., penal order? An expedited criminal judgment. Could we, for the sake of me as much as anybody else, put that into simple terms?
Ludmila Yamalova: Sure. In simple terms, the penal order was issued about a year ago. With the introduction of the penal order, the prosecutor and the police perhaps as well were given certain new rights, if you will, to dispose of certain cases much faster and more efficiently. If in the past, for example, you had like a misdemeanor claim, let’s say drinking without a proper alcohol license, that particular case would have had to end up in court and for the judge to ultimately simply issue a fine because in the U.A.E. that is just a matter of a fine. But in the past that particular case would have had to be transferred to the court and you can imagine the whole process that entails, going through the court proceedings. With the introduction of this penal order, cases such as that, for example, can now be disposed of by special prosecutors sometimes in one day type of session or hearing just by issuing several fines. In other words, for certain matters, simpler matters, lesser offenses, if you will, or certain kinds of misdemeanors, the prosecutor now has the right to dispose of some of these claims without having to transfer cases to the court.
The other aspect of the penal order is some of these so-called offenses or misdemeanors also carry lighter penalties or financial fines than before. In other words, the objective of the penal order is to simplify the disposition of some of these so-called criminal matters that in the past would have had to go through the courts and now some of these cases can even be addressed at the airport. As per the penal order, these specialized prosecutors will also be resident at the airports, for example. Let’s say somebody flew in and they have a bounced cheque from before that results in a travel ban and it’s just a matter of paying off that bounced cheque in order to have the travel ban lifted. I’m simplifying obviously. In the past that person would have had to be transported into the police and then often into some kind of temporary detention, only to have that case then be transferred over to the prosecutor, and so on and so forth. Now with the introduction of this penal order, a case like that could be easily resolved at the airport by virtue of just having that particular cheque paid right there at the airport.
Tim Elliot: So essentially the penal order, as the U.A.E. has grown, the legal system has developed. This is almost a fast-track system.
Ludmila Yamalova: Indeed. That’s in response to, as you rightfully said, the evolution of this country and the way the authorities have decided that many of the matters in the past were subject to the penal code that had been drafted in the 1980s, so the system has been modernized or the legislation has been modernized to keep up with the current fabric of society.
Tim Elliot: Let’s take a specific instance. I’m wondering if the penal order applies in this, for example. Let me just paint a picture for you. Somebody makes an offensive remark. I’m in a restaurant in Dubai. I’m upset by the remark the person makes. The situation fairly quickly becomes a heated argument. The person pushes me, my spouse, and/or friends into fear. A shoving match ensues. It becomes a physical altercation, almost a fight. Legally where are we when an altercation like this takes place?
Ludmila Yamalova: Something like this is perhaps more subjective and therefore may not necessarily be subject to the penal order only because there are so many elements that are involved that call for a subjective analysis or opinion about who did what and what followed what, and more importantly, the gravity or the effects of that particular fight. For example, if there are serious physical injury or damage, then that obviously arises to a different level of an offense. If it’s just a slight push, that may not be an offense at all. It may not be legally speaking considered an assault. But if it is a harder push that results in bruises or what have you, then obviously that could be considered maybe not a serious offense, but a misdemeanor. Because there are so many subjective elements, most likely a case like that would actually end up being transferred, at the very least, through the prosecution unless the parties decide to drop it. Chances are that even the prosecution would not want to resolve that particular issue in one day and refer to the court because there are so many different nuances and elements involved.
Tim Elliot: Could a case like this, assuming it becomes an assault, and I’m going to put this forward as well, that each side alleges assault. So there are, in theory, two cases put forward. How would you then have a complaint like this waived? Is it possible to waive it?
Ludmila Yamalova: That’s a very good question. The general premise is that most complaints can be waived unless the allegations are of a specific nature that are in the public interest of the state. For example, if there is a complaint regarding serious physical abuse. It may be that at that point the state is interested in prosecuting that or investigating that offense further and so therefore it does not want the parties to drop the case. Let’s say, another example, there could be kidnapping charges. There is kidnapping and then parties decide to drop the case. Well, once again, kidnapping could be considered to be a much more serious offense as far as the state is concerned. It is in the public interest of the state to get to the bottom of what that particular kidnapping allegation was all about and ensure that if there was a serious kidnapping charge that the people that are involved in it are dealt with appropriately.
That’s why as far as criminal cases are concerned, not all cases can be waived. If these are smaller, minor offenses, such as a push and shove here and there and a scuffle at a restaurant, certain defamation cases, all those could be waived. But if it is something that is more in the public order and the public interest, then it would not be. There is not necessarily a list of offenses that are specifically known to be waivable or not. Obviously murder or any other serious injury or damage, those kinds of offenses almost by definition are not subject to settlement. But anything that is more of a gray area, it’s really up to the authorities to decide whether an allegation or a claim can be waived or not. There isn’t really a cheat sheet, if you will, or a short list that we can go back to and have the confidence that particular claims are waivable, while others are not.
Tim Elliot: Can we talk about legal repercussions for a moment? Let’s go back to the example of our restaurant shoving match, if you like. What kinds of repercussions, assuming that the cases are not waived, would you be subject to? Would you be subject to, I don’t know, a travel ban, time in prison, a fine? Could it affect your employment in the U.A.E. for something like this? What kinds of repercussions might there be?
Ludmila Yamalova: This is a great question. It also is segue into why it is that firms like ours, commercial law firm, otherwise dealing with commercial and civil matters, even deals or knows anything about criminal matters because in other countries criminal lawyers basically do nothing else but criminal law, but in this country it is a fairly fine line between civil and criminal. To give some context to that particular statement is the example that you just gave and that is, let’s say, an altercation at a restaurant, something that would not necessarily be by definition a default considered criminal in other jurisdictions, but here it would be. The default is that it would be treated as such, at least at the initial stages while the investigation is ongoing and ultimately it may be dismissed by the court, but while the investigation is ongoing it is treated as a criminal matter. While in other jurisdictions perhaps it’s a different process, especially if it doesn’t involve any serious physical bodily harm, then the default is that it’s not criminal unless there is a verdict to that effect.
But here, going back to your example, if you’re at a restaurant and perhaps somebody pushes you accidentally and you decide that this was on purpose and you push back, and it looks like there is a fight. Now somebody else jumps in and now it looks like a proper bar fight. What happens? It’s not necessarily the case that one of those people that are involved in this so-called fight or scuffle actually has to file a complaint with the police. The authorities in this country have the authority to file an assault case, for example, or charges on their own accord. In other words, let’s say there was an altercation at the bar, and then as a result the police is called in, but none of the people that were involved in that particular fight are there by the time the police arrive. The police have the access to review the CC TV camera or the footage. They bring it back to the police station. They review the footage. They identify the three individuals in the footage and they themselves, on their own accord, can file assault charges against all three of those individuals without those individuals being involved. Now as part of the investigation, they will call in the individuals to give statements and depending on what’s in the statements, there may be an option for those three individuals to just waive and settle cases all around right there with the police, depending again on the situation and the circumstances involved. Or it may be that the police will say, well, no, this is serious enough and we do not want for you to three to settle this matter, and then they may want to take it further. Now, taking it further means that they will want to proceed with an investigation and takes statements from all the individuals involved, and then depending on the content of those statements, the senior management at the police station may decide to either dismiss the cases altogether or transfer them to the prosecution, which is the next level up.
Now at that level, the prosecution, there is another round of investigation. Now it is before the prosecutor. The prosecutor calls in the individuals. They give their statements. Depending on the content of the statements, maybe they will be given an opportunity to settle their cases against each other or maybe not. Then in the event the prosecution thinks it’s serious enough of a case or there are some other administrative nuances which do not allow the prosecutor to waive the case or to settle the case, the prosecutor will send it to the court. Now, it’s really at that stage that all the penalties could be review. I want to backtrack a little bit. The only authority the prosecution has in terms of deciding the appropriate penalty is a monetary fine. The prosecution cannot decide the particular offense results in imprisonment. That is really the authority that is left only to the courts. The prosecution can only say, okay, well, I’ve seen, for example, there is evidence that you drank without a license and so under the penal order an offense like that has, let’s say, a monetary of 1,500 dirhams, so therefore I pronounce you so-called guilty and you have to pay 1,500 dirhams, but that monetary fine does not actually end up on your criminal record because it’s a misdemeanor type.
Now if anything more than that then the prosecutor has to transfer it to the courts, and then the courts will look at all the evidence, will call witnesses once again, and in most cases conduct their own investigation and collect new evidence if needed. Then they will decide what appropriate measurements should be assigned, and they can involve anything from a monetary fine, to a jail sentence, to deportation, to all three.
Tim Elliot: And those would end up on a criminal record?
Ludmila Yamalova: Yes. Anything that’s above a misdemeanor would end up on your criminal record, which means if you ever want to work in the U.A.E. again and the company, your new employer wants to receive your good conduct certificate from the local authorities, you wouldn’t be able to get one, so you would not qualify.
Tim Elliot: Wouldn’t be able to get one at all?
Ludmila Yamalova: There is a five-year period.
Tim Elliot: I was going to ask, is there a statute of limitations?
Ludmila Yamalova: There is a five-year period. It stays on your record for five years and after that it’s cleared. But remember, a few years ago there was a new degree or legislation that ultimately required employers to request a good standing certificate from employees. However, a few months into it or a year into it, that particular legislation, while it still exists, it has not really been implemented. As of now, there is no requirement that companies request a good standing certificate. Now, certain companies might, especially those that are in certain industries, perhaps government or semi government owned companies, they may require this. But as things stand right now, there is no such requirement. Therefore, if you are denied employment by one company because you cannot produce a good standing certificate, there are hundreds of thousands of other companies that may not require that, and so you still have a chance to seek employment here.
Tim Elliot: There are in specific areas, such as child welfare, if you’re applying for a teaching license.
Ludmila Yamalova: Teaching and medical profession and I think financial services. There are certain industries that certainly require a much more stringent evaluation process.
Tim Elliot: I wonder if you can put this into words. I’m not sure you’ll be able to. How does the law in the U.A.E. view the repayment of debt to a society? How does the law view you once you have paid, done your time for your crime, if you like?
Ludmila Yamalova: Well, it depends on the crime. If you’ve served your jail sentence, chances are it was a serious enough offense to result in a jail sentence, and if that’s the case then that’s the kind of offense that will end up on your record. You now ultimately have a criminal record, so it might be a lot more difficult for you to obtain employment here because of it. But in a lot of cases, I don’t say most cases, but in a lot of cases, those cases that end up with a jail sentence or imprisonment often carry with them deportation as the next step. If you’ve served your time, then in most cases, and I say most, then the next step will be that you have to be deported from the country, so you won’t really have a chance to test what your chances are here because you’ll just not be allowed to stay here.
Tim Elliot: Let me rephrase that slightly then because it does seem as though people who have been subject to bounced cheques, for example, who have paid the debt owed by the bounced cheques, it does seem as though the attitude generally is you’ve paid the money. It’s not viewed as a fraudulent area of law. You’ve paid it, and that’s it. You can then move on. That seems to be at attitude. Am I right in saying that?
Ludmila Yamalova: Sure. And it depends. As I said earlier, it depends on the nature of the crime or the offense involved. Usually if it’s a bounced cheque, once you pay the cheque off, then that does not go on your criminal record at all. Now if you have a case against you for bouncing a cheque and that case resulted in imprisonment, it again depends on the court’s judgment. The court’s judgment depends on the amount at stake. In many cases, the court may rule that imprisonment is a penalty or a punishment, but after, let’s say two or three years, but after that the punishment has been served, and therefore there is no deportation. But it really depends on the amount at stake. Certain cheques or cheques for certain amounts often will not even be entertained for purposes of bail. Let’s say you have a bounced cheque of 5 million dirhams, and we’ve had cases like this, and so the person has been jailed because they have a bounced cheque for 5 million dirhams. By law they have a right to bail, but in many cases, we have seen prosecutors denying the right of bonds only because of the value of the cheque. So it truly depends on the allegations, on the crime, and for financial cases the amount at stake. For purposes of bounced cheques, once you’ve paid then there’s no criminal record on your account. Also, for example, if you have a civil judgment that you have not paid, that’s also a debt that is registered in this country and an unpaid debt can be criminal. If you have a civil case and that debt has not been settled or the judgment has not been settled, you can file a criminal case as unpaid debt and in that case as well, as you said, once the judgment is paid, then it most cases it would not necessarily end up on the criminal record because ultimately the debt has been satisfied. But it really is a very nuanced matter because so much of it depends on specific circumstances at stake.
Tim Elliot: So let’s come full circle, Ludmila, to where we began. It’s worth understanding and reiterating the fact that there is a very fine line between civil matters and criminal matters here in the Emirates.
Ludmila Yamalova: Yes, indeed. A lot of matters in the U.A.E. that in other jurisdictions would be regarding purely as civil matters are in fact considered criminal here. One example is defamation. If any statements are made that perhaps are considered defamatory, offensive to someone, that in and of itself becomes a criminal complaint off the bat. Now at the end, the court might decide that this was not criminal but during the investigation process there will be a criminal complaint registered against that person. That’s one example. Also, for example, using an employment context, using confidential information of your previous employer or even your current employer, in other words, breach of confidential information, once again, in the U.A.E. can be considered a criminal offense. It actually is a criminal offense.
Then a bounced cheque, which is an instrument that at least historically, less so now, that has been used quite widely in this country for all sorts of transactions, including giving to your landlord, for example, if you rent a property, so bounced cheques in the past, most cheques, were also considered a criminal offense. Now no cheques below 200,000 dirhams is a criminal offense anymore, but historically or anything above 200,000 is still criminal. Once again, a lot of these examples that we all deal with in just the ordinary course of business as employees, as renters of properties, and yet many of these actions can very inadvertently and innocently end up in the criminal sphere.
Another one is the example we gave at a restaurant where two people have an argument and perhaps some kind of a minor fight results. That too can become criminal. In other jurisdictions something like this would not necessarily ever make it into even the police, but here the police have the authority to investigate these kinds of matters on their own accord. It’s because of this, it’s so important to understand that the line is so fine between civil and criminal and before people file a case or conduct themselves a certain way it’s really important to understand the nuances of this jurisdiction and the cultural fabric.
Tim Elliot: Ludmila Yamalova is the Managing Partner of the Dubai-based law firm, Yamalova & Plewka. As ever, Ludmila, a huge thanks for your time.
Ludmila Yamalova: Thank you, as always.
Tim Elliot: That’s it for Lawgical this time around. We can’t cover every aspect of the U.A.E.’s legal framework in each episode, but if there’s a specific question you would like answered, get in touch via Lylawyers.com or through any of our social channels, and we’ll try to answer it in a future edition of Lawgical. Plus, for a legal consultation, Lylawyers.com is the place to start. Just hit Contact.
