With the new Law in the UAE, the Prosecution Can Allow the Accused and the Victim to Settle Criminal
Posted: Feb 22, 2020
The new amendment to the UAE Criminal Procedure Law provides for an amicable settlement opportunity to the parties in a criminal case, namely the victim and the accused under the aegis of the prosecution. This significant change in the new law is the acceptance of a settlement in criminal cases between the victim and the accused, regardless of whether this settlement was signed at the court, Prosecution or even at the Notary Public. Such settlement could be either signed by a victim, his attorney or even the heirs. This new amendment introduces a very significant role of settlement in the handling of criminal matters by the prosecution. We believe, in our professional and practical experience, the approach to pursue a settlement in specific criminal offences will have a positive impact on both victims and criminals. The settlement can be achieved in specific cases even after the judgement is passed.
Settlement in criminal cases
In its article 349 the new law gives the Prosecution the right to offer both parties in a criminal case to settle and grants them 15 days for such reconciliation. Nevertheless, it is important that this right was given to a prosecutor to execute at his sole discretion and is not mandatory to be executed. If the settlement was not reached, the prosecutor has the right to extend the grace period once. However, if the period is expired and the victim or his heirs reject to settle, the prosecutor may refer the case to the criminal court to proceed with the criminal charges.
Important question we have to consider here is: "May the settlement in a criminal case be signed under condition or suspended for the certain date?" or, in other words, "May the settlement in a criminal case be subject to any potential conditions for its invalidation or be kept as inactive for uncertain period or until there is a certain date for it to be recognized?".
The answer is - no. In accordance with article 352 of the amended law, settlement in criminal cases shall be concluded with an immediate effect. It cannot remain pending on subject or date. The law adopted very practical and humanitarian approach, when it allowed a victim to have settlement in a criminal case reserving his right to file his own civil case later. The law indicates, that so long as the settlement in a criminal case does not include a clause "waving the right to claim the civil compensation", the victim shall remain having this right. In our point of view, this very humanitarian approach simultaneously allows the victim to be compensated and gives him no chance to affect the accused through the criminal charges.
If there is more than one victim in the case and some of them accepted the settlement while others refused, article 353 of the amended law advises that criminal reconciliation of settlement shall not be accepted partially by a number of victims. It has to be agreed by all of them. The law indicated that in the case with more than one accused if the victim decided to drop the claims against (or to reconcile with) one of them, such reconciliation has to be extended to other accused. Settlement in listed types of cases could be reached even after the judgment is considered as final. However, if the reconciliation was done at this stage, its impact will be only to suspend the execution of the sentence, but it does not remove such sentence from the criminal record of the accused.
Reconciliation process in criminal cases
Reconciliation process was thoroughly considered in the new amendments of the law. The law specifies which types of cases to be concluded through the settlement between the parties. Such cases include but not limited to the following:
- Criminal cases filed against a family member based on the Family Court executory judgment due to non-payment of alimony ordered by the Family Court, as stipulated in article 330 of the UAE Federal Law No. 3 of 1987 (the Penal Code);
- A physical violence in case it resulted harm or injury which requires
less than 20 days to heal, as stipulated in article 339 of the Penal Code;
- The crime arrives when somebody recklessly injured the victim and it leaded to permanent injury, as stipulated in article 343 of the Penal Code;
- The legal threats, as stipulated in articles 352-353 of the Penal Code;
- The defamation by any means of publicity, as stipulated in articles 372-373 of the Penal Code;
- The defamation through the phone or in private as per article 374 of the Penal Code;
- Breach of privacy through the illegal (without consent) recording of or listening to private conversations those related to private and family lives of individuals, as well as the crime arises through the publication of such information (even if the published information was true), as stipulated in article 378 of the Penal Code;
- Breach of confidentiality, and if this crime arises mainly in practical cases where one of a company's employees misused the confidential information entrusted, in order to gain personal benefit or to make personal profit, as stipulated in article 379/1 of the Penal Code. As per the amendments, such crime could be dropped in any stage through criminal settlement;
- The crime arises from unauthorised access to messages or phone calls without the consent of a concerned person, as stipulated in article 380 of the Penal Code;
- The crime arises from usage of cars, motor cycles or any similar vehicle without the consent of the owner, as stipulated in article 394 of the Penal Code;
- The crime arises from consuming food and beverages in the restaurant, staying in hotels or renting cars without paying the due bills, as stipulated in article 395 of the Penal Code;
- The crime arises from fraud or cheating, as stipulated in article 399 of the Penal Code;
- Bounced cheque cases, as stipulated in article 401-403 of the Penal Code;
- Breach of trust cases, as stipulated in article 404 of the Penal Code;
- The crime arises from taking possession of the lost property of somebody, as stipulated in article 405 of the Penal Code;
- The crime arises from stealing mortgaged money, as stipulated in article 406 of the Penal Code;
- The crime arises from cheating a contractor, as stipulated in article 423 of the Penal Code;
- The crime arises from damaging other people's property, as stipulated in article 424/1-2 of the Penal Code;
- The crime arises from damaging or destroying trees, plants or agricultural equipment owned by somebody else, as stipulated in article 425/1 of the Penal Code;
- The crime arises from damaging, relocating or removing the measuring walls intended to divide private properties, as stipulated in article 428 of the Penal Code;
- The crime arises from killing animals, as stipulated in articles 431 and 433 of the Penal Code;
- The crime arises from illegal access to private residential area or staying in private residential area without the consent of the owner, or hiding in such area, as stipulated in article 434 of the Penal Code.
Dr. Hassan Elhais is a legal consultant in Dubai, specializing in the drafting of all statements of claim, memos and consultation on litigation of all manner.