On 14 December 2006, HH Sheikh Khalifa bin Zayed Al Nahyan, President of the UAE, issued Federal Law No. 52 of 2006 amending the Penal Code promulgated by Federal Law No. 3 of 1987.
This is not the firsttimethatthePenalCode has been revised. Federal Law No. 34-2005 precedes the most recent revision by about one year.
The latest Amending Law No. 52-2006 introduces various changes to the UAE Federal Penal Code, specificallyinArticles 29, 66, 83, 85, 91, 93 and 103. A new article (313 bis) has been added and Article 70 bis of the previous law has been repealed. The details of these changes are as follows:
Revision of Various Articles of the Old Law:
Articles 29, 83, 85, 91, 93 and 103 of the Penal Code promulgated by Federal law No. 3 of 1987, as amended by Federal Law No. 34 of 2005 shall be replaced by the following text:
Article 29:
"Misdemeanours are those crimes punishable by one or more of the following penalties:
Jail
Fine exceeding AED 1,000
Payment of compensation."
NB: Article 29 used to read: "Misdemeanours are those crimes punishable by one or more of the following penalties:Jail
Fine exceeding AED 1,000
Payment of compensation
Flogging."
Under its new legal definition,misdemeanours exclude crimes punishable by flogging under Islamic Law such as the consumption of alcohol, adultery etc. which are known as Hudood crimes. Such crimes no longer constitute a misdemeanour according to the latest revision.
Article 66:
"Principal punishments are:
Punishments stipulated in the Divine Ordinance (Hudood) and punishment consisting in the payment of compensation or blood money.
Castigation and Chastisement Punishments, which are:
Death
Life imprisonment
Temporary imprisonment
Jail
Detention
Fine
The Court shall order castigation and chastisement under this Law in the absence of Sharia conditions for imposing Hudood punishments and punishments consisting in the payment of compensation and blood money."
NB:Article 66 used to prescribe flogging as a form of castigation and chastisement but it has been excluded from this category of punishments. The revised Article furthermore requires the Court to order castigation and chastisement under the Law in the absence of Sharia conditions for imposing Hudood punishments and punishments consisting in the payment of compensation and blood money. Thus, the revised law introduces a new provision stating that the absence of Sharia conditions for awarding Hudood punishments and punishments consisting in the payment of compensation and blood money based on Islamic jurisprudence cannot be grounds for acquittal and pardon because the Court has to order castigation and chastisement under the new Sub- Article 66 if the conditions for Hudood Ordinance crimes and the payment of compensation and blood money are not met and the Court is not able to award any principal punishment.
Article 83:
"The Court may, upon sentencing an accused to a fine other than the proportional ones or to a jail term not exceeding one year, order a stay of execution of the punishment if, based on the accused's character, his past, age or the circumstances in which he has committed the crime, the judge believes that the accused will not commit another crime.
An accessory punishment may be subject to a stay of execution decided by the Court, except confiscation.
In cases involving a misdemeanours under Articles 328, 329, 330, 339, 372, 373, 374, 394, 395, 403, 404 and 405 and cases of theft, fraud, breach of trust and concealment of evidence relating to a crime, where the victim is the spouse or an antecedent or descendant of the victim, the Public Prosecution shall stay execution of the sentence entailing deprivation of liberty if the victim has dropped or settled the charges with the convicted person."
NB:Under the newly introduced last paragraph in Article 66, the Public Prosecution has the right to stay execution of a sentence entailing deprivation of liberty if the victim has dropped or settled the charges with the person convicted of any of the crimes enumerated in the newly added paragraph and sentenced to the penalty entailing deprivation of liberty. The crimes in question are those against family involving, for example, issues of child custody and guardianship or the payment of alimony to a spouse of relative etc. (Articles 328, 329 and 330), crimes against persons such as those committed against physical integrity (Article 339), libel and slander (Articles 372, 373 and 374), certain crimes against property such as using a car or motorcycle without the permission or consent of its owner (Article 394), failing to pay a food or drink bill (Article 395), crimes relating to postal cheques or postal money orders (Article 403), embezzlement and dissipation of funds, breach of trust and wrongful possession (Articles 404 and 405) and theft, fraud and concealment of evidence relating to a crime.
Under the revised law, the Public Prosecution has the right to stay execution of a sentence entailing deprivation of liberty (jail and imprisonment) that is awarded in respect of any of the above mentioned crimes if the victim has dropped or settled the charges with the convicted person. In such cases, the Public Prosecution would apply to the competent Court for a stay of execution and the Court would grant the application upon verifying that the requirements of the Article are met.
Article 85:
"A decision ordering a stay of execution may be vacated in any of the following circumstances: If the accused commits, during the period specifiedintheprecedingarticle, a deliberate crime forwhich he has been sentenced by conclusive decision to a punishment depriving him of his liberty for more than 2 months, no matter whether the sentence is pronounced during the said period or after its expiry, provided that a criminal action has been brought within said period.
Where during the period specifiedin the preceding Article, it appears that, before the stay of execution of punishment was ordered, a decision was pronounced against the convicted person in the manner specified in the preceding paragraph, and of which the Court had no knowledge when it decided to stay execution. In such instance, the Court shall, upon the request of the Public Prosecution, summon the convicted person and issue a decision quashing its own previous decision to stay execution.
Furthermore, if the punishment for which it was decided to quash the order granting the stay of execution was imposed after the stay of execution had been ordered, the Court which awarded the punishment may vacate the order to stay execution, either of its own motion or upon the request of the Public Prosecution, without prejudice to the various stages of proceedings.
The quashing of the order granting a stay of execution shall result in the execution of the punishment for which the stay of execution was ordered."
NB:The revised Article omits the term "or flogging" from the first paragraph in the previous Article. This omission is warranted insofar as flogging is no long era form of castigation or chastisement that can be ordered by the Court. Inother words, flogging applies only to a person who has been convicted of a Hudood crime according to the newly revised Article 66 mentioned above. Hence, if a person in whose favour a stay of execution was granted commits a Hudood crime punishable by flogging during the period of stay of execution there would be no basis for quashing the order granting the stay under the revised Article.
Article 91:
"Where an individual commits several crimes prior to his conviction regarding any of them and the conditions stipulated in the two Articles (87) and (88) above are not met, he shall be sentenced to the punishments provided for each of such crimes and they shall all be successively executed provided that the total of the periods of imprisonment alone or the total of the periods of imprisonment and jail together does not exceed 20 years and provided also that the jail term alone does not exceed 10 years.
In case of a variety of punishments,the penalty of imprisonment shall be enforced prior to that of jail."
NB: This Article relates to plurality of crimes and punishments which are dealt with under Articles 87 and 88 of the Penal Code. Article 87 states: "Where one single act constitutes several crimes, only the crime carrying the severer punishment shall be taken into consideration and the accused shall be sentenced to that punishment only."
Article 88 reads:
"Where several crimes which are closely connected with each other so as to render them indivisible are committed
they shall be considered one single crime and the accused shall be sentenced to the punishment provided for the most serious of said crimes."
It should be noted that the changes in Article 91 are not substantial. Only one sentence has been deleted and that is: "up to 200 lashes administered as chastisement," given that flogging is no longer a form of castigation and the new Article 66 as mentioned earlier.
Article 93:
"All the following punishments shall be enforced whatever their number:
Fine and accessory punishments
Criminal measures provided the total period of probation does not exceed 5 years."-+
NB: The revised Article 93 omits the word "flogging" from paragraph1 .In other words, flogging has been excluded such that there can be no plurality of flogging punishments which is no longer a form of castigation and but is now a Hudood punishment limited to certain Hudood crimes.
Article 103:
"Where there is an aggravating circumstance, the judge may impose the punishment as follows:
If the principal punishment legally prescribed for the crime is a fine,the judge may double its limit or award a jail term.
If the principal punishment legally prescribed for the crime is jail, the judge may double its limit.
If the principal punishment legally prescribed for the crime is temporary imprisonment for a maximum term of less than 15 years, the judge may increase the term to 15 years.
If the principal punishment legally prescribed for the crime is the statutory maximum term of temporary imprisonment, the judge may substitute life imprisonment therefor."
NB: The revised Article 103 omits para (e) which read: "If the principal punishment legally prescribed for the crime is floggingtobemeted out as chastisement, the judge may double its limit or order at least 6 months of jail time."
The revision was prompted by the fact that flogging is no longer meted out as a form of castigation and chastisement as in the past and is now strictly a punishment for Hudood crimes.
New Articles:
The most recent revision of the Penal Code introduces a new article (313 bis) which reads: "1- The hudood punishment for consuming alcohol shall not be ordered against a non-Muslim
Save as permitted for non-Muslims, a person who consumes alcohol shall be sentenced to a jail term of not less than 1 month and not more than 6 months and a fine of not less than AED 1,000 and not more than AED 2,000 or either."
It is worth noting that the new article appears under Chapter Five which deals with crimes against religious faiths and rituals. It is now legally forbidden to impose the Hudood punishment of flogging against a non-Muslim who is found guilty of consuming alcohol. In addition to that, a specific punishment now applies to non-Muslims who consume alcohol without a permit from the relevant authorities. That punishment is a jail term of 1 to 6 months and a fine of 1,000 to 2,000 Dirhams or either at the judge's discretion.
It should be noted that the punishment for consumption of alcohol by a non-Muslim used to be at the Court's discretion consistent with the principles of Islamic Sharia but now has upper and lower limits which the sentencing Court must not overstep.
Articles Repealed by the Revised Code:
Article 3 of the New Law No. 52 of 2006 provides as follows: "Article 70 bis of the Penal Code promulgated by Federal Law No. 3 of 1987, as amended by said Federal Law No. 34 of 2005, is hereby repealed."
The repealed article (70 bis) read: "Flogging means beating the convicted person with a whip. When ordered as castigation and chastisement flogging shall be carried out at the rate of 10 to 40 lashes unless otherwise prescribed by law.
In giving a sentence of jail for a term of at least 3 months or payment of a fineofupto AED 10,000, the Court may substitute the sentence for flogging."
Clearly, the Article was repealed in line with the UAE legislator's decision to exclude flogging as a form of castigation and chastisement and limit this punishment to Hudood crimes in accordance with the principles of Islamic Sharia.
By Hussain Ghaffar
Al Tamimi & Company 2007
