UAE joins nations monitoring offenders through Electronic Tagging

The Law No. 17 of 2018 provides for an alternative to imprisonment in certain offences and subject to certain restrictions, which we have amplified in the following part herein. The alternative to imprisonment comes as a handy, electronic, portable and wearable device, which is intended to restrict and monitor the convicts or the accused pending trial instead of giving them a jail term or police custody during the investigation. The device is capable to determine the geographical location of the person wearing it and shall therefore aid the criminal enforcement authority to ascertain the location of the accused under trial or the convict serving his sentence under a surveillance through this electronic device. The use of this electronic device as a monitoring tool is allowed for a temporary period instead of a police custody or a replacement of a criminal conviction resulting in an imprisonment sentence. There are, however, restrictions in the use of this electronic device, which we have provided in the following along with the treatment to the existing convicts in light of this humanitarian, novel and positive development in the legal system. Electronic tag as the form of surveillance

One of the most important changes the new law brings is the establishment of the sentence served with an electronic tag as the form of surveillance. Having the criminals under electronic monitoring will become a first-time practice in the UAE. The law indicates that such procedures could be applied on the accused within the criminal investigation or even after the final judgment. It could include restrictions for the criminal from being away from the designated location or his home, whatever decided by Prosecution or the competent court. As per the new changes, within the criminal investigation stage, there could be possibility to have bail under the electronic monitoring through the decision of Prosecution or, even upon the judgment the court could implement the same procedures as a replacement of the sentence. The law indicates that such procedure could include enforcing the criminal to keep electronic device for entire period of investigation.

Even when the accused was referred to the court with the electronic tag, but the court decided that there is no jurisdiction with respect to the matter, the accused shall remain with a right to request the cancellation of such monitoring, unless and until the new case is filed before the competent court. The law also indicates that if somebody was under arrest or electronic monitoring when the court found him guilty and he was eventually sentenced only with a fine, the court execution department has to reduce 100 dirhams from the amount of fine per each day spent under such arrest or electronic monitoring.

The new law indicates that the concerned authority (while they are taking their decision) shall consider giving the accused a chance to continue his professional practice, complete his training, education, continue receiving medical treatment or any other conditional circumstances the competent authority might find necessary to be considered. The law gives the police (as the nearest police station) an authority to supervise the execution of the electronic monitoring of the criminals. It authorizes the police to visit the accused/criminal to make sure that he is executing the order and to check the integrity of the devices before they submit the report to the competent Prosecution. The law gives the right to the accused or the criminal to anytime request from the Prosecution to check if the device is affecting his health and to provide him with a medical report indicating the same.

Electronic monitoring for temporary period

The new law authorized the Prosecution to decide on a replacement of a police custody with electronic monitoring for investigation period, regardless if the same has been requested by accused or not. However, it is only possible if a prosecutor made such decision, and it also means that the accused during the investigation period has the right to reject the replacement of a police custody with an electronic monitoring, which is very unlikely to happen. In this case, he can remain in police custody until the case is decided.

The same law empowers the Prosecution to prevent the accused from contacting any of his partners in a crime and/or the victim and/or the victim's family, yet it does not give the right to the Prosecution restricting accused from contacting his lawyer. The law excluded the accused in listed types of crimes from benefiting of having the electronic monitoring option. One of the most important types of crimes where the application of the electronic monitoring is impossible are the crimes with mandatory deportation sentences, such as drugs, sexual and honour related crimes.

The law gives the Prosecution the right to put the accused under electronical monitoring for a month, extendable to one additional month. If the Prosecution wishes to extend such monitoring for additional period, that should be done only after receiving the approval of the competent criminal authority, in accordance with article 364 of the same law. The law empowers the Criminal Court whether to extend or to cancel electronic monitoring, or to release the accused conditionally or unconditionally.

Electronic monitoring as a replacement of the sentence through a criminal judgment

The new law authorizes the Criminal Court to replace any jail sentence of less than two years of imprisonment with the electronic monitoring, if the court is convinced that the accused health condition or age make him to be unlikely to commit the same crime again, and if the accused has a permanent place of residence in the UAE, and if he has a regular professional work or he has an educational activity, or he is the only breadwinner in his family or for any other personal reasons the court may find considerable.

The law restricted the court from applying the electronic monitoring as the sentence if the criminal commits the same crime for the second time. A person, who will be sentenced to be under the electronic monitoring has to keep the competent authorities updated on the changes of his place of work or residence, if he is meant to stay in a new location for a period of more than 2 weeks. And even though he spent more than 2 weeks in a new location and returned back eventually, he has to update the authorities on the same developments. The accused is obliged to accept regular visits from the competent authorities to check him honouring the electronic monitoring and he should not, under any circumstances, leave the country without relevant court approval. However, the law also gives the criminal the right to apply for leaving the country temporarily while he is under electronic monitoring through submission of the request to the court and to criminal prosecution indicating the destination, the reason for traveling and the expected date of return. Such traveling will be considered as lawful if only such request was accepted by competent authorities. It is worth to mention that although the request was accepted, the period outside the country shall not be calculated as part of serving the sentence under electronic monitoring.

The same law gives the concerned court the right to amend the location, timing and apply some restrictions on electronic monitoring. Such amendments could be done based on the decision of a prosecution or the request of a criminal. The court has the right to cancel the electronic monitoring if there is a medical report indicating that it could affect the criminals' health or safety, or if the court found after ordering the sentence that the criminal had final jail term from any other court and that was not indicated within the trial procedures, or if the court found it impossible to execute for any reason or even if the criminal requested for the same and the court found that such request worth to be accepted. The decision in this case shall be final and not subject to any kind of right to be objected.

The electronic monitoring within the criminal investigation could be cancelled if the criminal committed another intended crime or awarded jail sentence in any other crime, or if the competent authority found through the check process that he did not respect or obey the instructions of the court or prosecution. And the decision in these cases could be objected through grievance, which has to be raised within the period defined in law.

If in the middle of serving the electronic monitoring the court ever decided to cancel the procedures and replace them with jail sentence, the period which the criminal spent already under the electronic monitoring has to be excluded from the total jail term period.

What is the position of a criminal already serving a jail sentence of the previous judgments. Can they benefit from the new law?

As per article 380 of the Law 17 of 2018, any criminal who has been sentenced to remain in jail between 2 to 5 years and served half of that period, has the right to request from the prosecution to replace the rest of the sentence with similar period under electronic monitoring. However, such request is not obligatory for the prosecution to accept and it remains at their sole discretion. A prosecutor has the right to check the criminal's behaviour and history while he was serving his jail sentence and if he is not a risk for national security. The prosecutor will submit such report to the court which will order jail sentence taking into account the report. If the court found or believed that the criminal will not commit the same crime again, they have a discretionary power to accept the prosecution's report and to release the criminal. Such decision by the court could be final and cannot be objected. However, if it was dismissed, the criminal has the right to submit another request after 6 months.

If the court decided to replace the rest of the jail sentence with electronic monitoring, the prosecution would be the authority to supervise the execution of such decision. The criminal and prosecution will remain having the right to request the amendment of the restriction on a place and timing of the monitoring. And again, the decision could be cancelled if the court found that it affects the criminal's health and safety, or the criminal requested to cancel it and return him back to jail, or it is impossible to execute, or he committed the intended crime, or the competent authority found that he does not respect or obey the restrictions ordered. If it was cancelled, the criminal has to serve the rest of the sentence in jail. Any cancellation will be final and will not be a subject to any appeal.

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.