The Difference Between Being Under Arrest and Being Detained for Questioning in United Arab Emirates

Introduction

In the United Arab Emirates (UAE), individuals may find themselves in situations where their freedom is restricted through detention or arrest. While both detention and arrest involve limitations on personal freedom, it is important to understand the differences between these two concepts, particularly in the context of civil and criminal procedures.

The legal framework surrounding personal freedom, arrest, detention, and the rights of individuals are outlined in Federal Decree-Law No. 38/2022 under criminal law and Federal Decree-Law No. 42/2022 of Civil Procedure in the UAE. This article aims to provide clarity on the distinctions between detention and arrest in the UAE, focusing on their respective durations, purposes, and legal rights associated with each process.

Detention under Criminal Procedure

Detention for questioning is a temporary measure employed by authorities to gather information or evidence related to a specific incident or investigation. In the UAE, individuals can be detained for a maximum period of 72 hours. This period is divided into 24 hours for initial suspicion and 48 hours before meeting with the prosecution. The purpose of detention for questioning is to assist ongoing investigations or inquiries, allowing authorities to gather necessary evidence and information.

Under Federal Decree-Law No. 38/2022, personal freedom is protected, and no individual can be subjected to arrest, inspection, detention, imprisonment, prevention from travelling, or electronic monitoring unless specified by the law. Detention under remand can be ordered by a Public Prosecution member if there is sufficient evidence and the offence committed is a felony or a misdemeanour punishable by other than a fine. The initial detention period under remand is seven days, with the possibility of renewal for up to 14 days.

The Public Prosecution is responsible for supervising penal institutions and places of detention under remand. If the interest of the investigation necessitates extending the detention beyond the specified periods, the Public Prosecution must present the lawsuit file to a judge of the competent Criminal Court. The judge will then examine the case, including the defendant's statements, and decide whether to extend the detention for a maximum period of 30 days, with the possibility of renewal.

The rights of the detainee are emphasized under the law. While contact with other detainees may be restricted, the defendant has the right to always contact their lawyer in private. The detainee may also file a grievance against an order issued to extend the detention within a specified timeframe.

Arrest under Criminal Procedure

Arrest in criminal cases is the act of taking a person into custody by a law enforcement officer or authority to ensure their appearance before the competent authorities and prevent them from escaping or committing further offences. Law enforcement officers are authorized to order the arrest of a defendant when there is sufficient evidence that the individual has committed a crime.

Arrests can be made in various cases, including felonies and misdemeanours punishable by penalties other than fines. If the defendant is not present, a law enforcement officer may issue a warrant for their arrest and detention. The arrested person shall be brought before the relevant authority within a reasonable time frame.

After the arrest, the law enforcement officer must inform the defendant of the crime attributed to them and their right to remain silent. The defendant shall be sent within forty-eight hours to the competent Public Prosecution for further proceedings. A person who is arrested shall be brought before a judge within forty-eight hours of their arrest. The judge has the authority to order the release or detention of the arrested person pending trial.

Detention under Civil Procedure:

Detention under Civil Procedure in the UAE aims to enforce court orders and judgments by allowing the detention of debtors who fail to meet their financial obligations. Debtors can be detained if they abstain from enforcing a writ of execution without proving insolvency or engage in actions like asset smuggling or concealment.

The initial detention period is one month, with the possibility of renewal for up to six consecutive months. Exceptions exist for debtors under 18 or over 70 years old, those with dependent children, and debtors providing bank guarantees or solvent sureties. During detention, a summary investigation can be conducted, and debtors may be granted up to six months to repay the debt in instalments. Legal representatives of private juristic persons can also be detained, and travel restrictions may be imposed.

Arrest under Civil Procedure

Arrest in civil cases is governed by Federal Decree-Law No. 42/2022 of Civil Procedure. If a misdemeanour involving aggression against the court panel, false testimony, or any other crime punishable by law is committed during trial sessions, the court has the authority to order the arrest of the perpetrator. The arrested individual is then referred to the public prosecution to initiate the necessary legal actions against them.

Individuals have the right to file a grievance against the decision to issue an arrest warrant or the refusal to order one. The grievance should be filed within seven days from the issuance of the decision or from the date of notification. The judge responsible for reviewing the grievance will issue a decision to either cancel or modify the contested decision.

Conclusion

In the UAE, detention and arrest serve different purposes and are governed by separate legal frameworks in both civil and criminal procedures. Detention under the criminal procedure is primarily used for questioning, investigation, and gathering evidence, while arrest aims to ensure the appearance of the defendant before the competent authorities and prevent further offences.

The specific procedures and rights associated with detention, bail, and civil judgments may vary based on the circumstances, the applicable laws, and the court's discretion. Individuals need to understand their rights and legal protections when faced with detention or arrest in the UAE.

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.