Implementing Amicable Justice - A Look into the UAE's New Legal Approach
White Collar Crime & Investigations / UAE
Hamad Al SeiariAssociate,White Collar Crime & Investigations
Due to the increasing number of cases year after year and the considerable time required to train judges adequately—a process demanding thorough legal expertise and rigorous training to ensure competency—the Emirati legislature has found a promising solution in what is known in comparative law as "amicable justice" or "negotiated justice." This approach is introduced in Federal Decree-Law No. 38 of 2022 concerning the UAE Criminal Procedure Law under the terms settlement, mediation, and criminal reconciliation. This innovation is unprecedented in the Arab region, although it was pioneered globally by the French with Law No. 99-515 of 1999. The French law permits the Public Prosecution to offer a settlement agreement to the defendant, wherein the defendant confesses to the crime in exchange for certain legally stipulated measures, thus resolving the criminal case without further court proceedings.
The primary goal of this innovation is to reduce the number of cases brought before criminal courts, allowing them to focus on more significant cases and avoiding the overload of cases that could reasonably be settled out of court. Additionally, traditional incarceration does not always achieve the desired reformative outcomes for offenders, whereas this approach offers significant social benefits to the victim. The law enables the victim to file a civil claim, which the defendant can accept as part of the criminal settlement, providing the victim with a sense of justice and psychological peace through the assurance of criminal accountability alongside compensatory restitution for the harm suffered.
A criminal settlement is proposed by the Public Prosecution, which acts as the custodian of the criminal case, and the defendant or their legal representative may request it. This proposal is directed at the defendant to accept or reject specific legally determined measures and penalties, which are generally less severe than those imposed if the court finds the defendant guilty. The criminal case is concluded upon the successful completion of this agreement.
This process aligns with criminal reconciliation as an alternative to criminal prosecution but differs in that the settlement is between the Public Prosecution and the defendant, whereas reconciliation is between the defendant and the victim. In practice, criminal settlements are more comprehensive and applicable to all misdemeanors and felonies punishable by temporary imprisonment and associated misdemeanors. In contrast, reconciliation is limited to 21 specific crimes, such as breach of trust and defamation, which lead to the termination of criminal proceedings before a final judgment is rendered. If reconciliation occurs post-conviction, the sentence's execution is suspended by law.
Given the novelty of incorporating criminal settlements in the Criminal Procedure Law, there have been no documented cases employing this mechanism thus far. This article aims to explore the legal nature of criminal settlements and address the concerns of defendants and victims when the Public Prosecution proposes a settlement. Key questions include whether the defendant’s confession could be used against them if the settlement process does not proceed as planned and the position of the legislature regarding the rights of the victim.
Federal Decree-Law No. 38 of 2022 addresses the provisions of criminal settlement in Articles 360 to 382. Article 360 states, "The Public Prosecution, when the criminal case is eligible for court referral, may propose to the defendant in misdemeanor cases a final settlement to not refer the case to court, subject to the acceptance of any of the penalties and measures provided in Article 362 of this law. The settlement is executed with the approval of the competent criminal judge."
Article 362 outlines the permissible agreements between the Public Prosecution and the defendant, stating:
Criminal settlement in misdemeanors involves the Public Prosecution proposing one or more of the following penalties or measures:
Payment of the legally stipulated fine for the crime, not exceeding half its maximum limit. For instance, if the maximum fine for the crime is AED 100,000, the settlement cannot exceed AED 50,000.
Forfeiture of items used or intended for use in committing the crime or obtained from it for the benefit of the state. This could include mechanical and electronic devices used in forgery.
Suspension or revocation of the defendant’s license for up to six months. Examples include driver's licenses or commercial licenses.
Closure of the establishment or suspension of commercial activities for up to six months. This could apply in cases like selling counterfeit trademarks.
Participation in community service activities, as legally defined. This could replace imprisonment of up to six months, involving tasks like assisting patients, environmental clean-up campaigns, or traffic management during busy periods.
Prohibition from entering certain public places for up to one year. This may be imposed if the crime harmed patrons of the location.
Restriction on the use or possession of specific communication devices for up to six months. This could involve banning the ownership of smart devices.
Temporary compensation for the victim’s damages if requested and determined. The victim is notified of this proposal.
In all circumstances, a fine cannot be combined with community service. Furthermore, the defendant, upon accepting the settlement, must surrender any items and funds associated with the crime.
The role of the mediator in criminal mediation remained inactive until the issuance of Ministerial Resolution No. 341 of 2024 concerning the regulation of the mediator's work in criminal mediation. This resolution specified the conditions that must be met by the mediator to ensure that they perform their duties to the fullest. The mediator's work focuses on mediating between the victim and the accused to reach an amicable solution acceptable to both parties, thereby concluding the criminal case.
To ensure the mediator performs their duties as required and to protect both the accused and the victim from any professional errors, the ministerial resolution required the mediator to have professional liability insurance ranging from AED 200,000 to AED 1,000,000. The resolution also allowed practicing lawyers and retired members of the authority the right to register in the criminal mediation system, which would add a degree of practical neutrality to criminal mediation. Additionally, it opened the field to those with sufficient experience and high qualifications in the legal field who are known for their integrity and impartiality (Article 4).
Furthermore, to ensure continuous oversight of the criminal mediator, the resolution established an administration responsible for disciplining criminal mediators in case of professional misconduct. The penalties range from a warning and suspension from work for no more than six months to removal from the registry, with re-registration only allowed after a minimum of three years. The resolution also specified the fees the mediator would receive for their mediation services, depending on the type of crime involved, ranging from AED 1,000 to AED 5,000.
Once the Public Prosecution approves or initiates the settlement proposal, the defendant is notified and has five days to accept or reject it. Silence is considered a rejection, and the notification must inform the defendant of their right to legal counsel (Article 363 of the Criminal Procedure Law).
In conclusion, both criminal settlement and reconciliation can be optimal for shortening lengthy criminal procedures in certain cases, benefiting both the defendant and the victim. The victim benefits from the swift recovery of their losses or compensation for the harm caused by the crime and retains the right to pursue further compensation through civil courts if necessary.
For further information,please contact Hamad Al Seiari.
Published in September 2024
