Financial Crime Cases – UAE Court Practice

According to the part 1 article 404 of Federal Law 1987 No 3 on Penal Code amended by Federal Law of 2005 No 34 and Federal Law of 2006 No 52:

“any person shall be sentenced to detention or to a fine, whoever embezzles, uses or dilapidates amounts, bills or any other movable property to the prejudice of those entitled whenever said movable property are delivered to him on bases of deposit, lease, pledge, loan for consumption or proxy”.

In the application of this provision shall be considered as a proxy, the partner in joint property, the officious on the property of the interested owner and whoever received something to be used in a specific matter for the benefit of its owner or of others.

This example of criminal offence is much expanded in the country and in practice; the judge might sentence the accused to 3 years jail term together with the imposition of deportation according to article 121 of the Law.

One of the latest court examples to be illuminated is the case where the partner was sentenced to the maximum term required by the article for receiving and using the company money. The funds came from one partner to another with the purpose of construction of the factory. The court of the first instance considered the accused as a guilty and sentenced him to maximum punishment. However, the appeal court took into consideration the lack of criminal component in the case and changed the punishment from jail term to fine.

The major point of our defence in the case was the insistence of lack criminal intention and the necessity for the case to be seen by the civil court with the further evidence and investigation of financial flow inside of the company. The court accepted the point and reduced the punishment to the fine.

The affected party saved the right to raise a civil case in the competent court, therefore, the criminal procedure was completed without of real sentence for the partner.

General advice for any financial crime is insistent on the investigation of intention on the crime, the evidence of the receiving of funds and in case of not acceptance of judgment to use the right for an appeal.

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The article prepared by lawyer Dr. Maryam Krystyna Nechaieva

Legal review of the rights of disabled in the UAE

By: Dr. Maryam (Krystyna) Nechaeva

UAE implemented a series of steps to implement measures for people with special needs after joining world Convention by means of huge changes in the governmental sector giving more attention to these people and their future.

Governmental and local authorities created an environment for this group of citizens with a separate budget regulation of public meaning and established special departments to support and present the rights for disables people such as
– Disabilities Affairs,
– Youth and Sports Authority;
– Sharjah City for Humanitarian Service;
– Dubai Club for the Disabled

Only specific group of people is determined as disabled under Article 26 of Federal Law No.29 of 2006 Concerning the Rights of People with Special Needs such as suffering from a temporary or permanent, full or partial deficiency or infirmity in physical, sensory, mental, communicational, educational or psychological abilities to an extent that limits the possibility of performing the ordinary requirements.

The same law No.29 of 2006 provided for these people scope of rights but not limited to educational rights, right to the workplace including public sector for UAE nationals, cultural, family and sports rights ext. These rights can be easily implemented through special organizations that provide preparatory work for future candidates and students depends on professional and special skills.

In Support of the Federal law No.29 of 2006 the Ruler of Dubai, issued Law No. 2 of 2014 “To protect the rights of people of determination in the emirate of Dubai” providing high-quality medical care and social services, boost public awareness and contribute to integrating people of determination into society and reaffirm their participation in social development.

Talking about the legal rights of disabled people it’s important to classify the type of the disease and the level of capacity. Federal law No.29 of 2006 has a lack of classification and might be amended in future to include this contribution. However, according to Personal Status Law No.28 of 2005 disables person has a right to have guardian and custodian to present his rights and provide further protection. The priority is given to eliminate the guardianship of persons with disabilities and support their independence rather than limit their functioning, widen their access to basic and social services, and ensure that their voices were heard in the development of laws and policies.

In conclusion, it is grateful to observe that UAE plans to develop rules and regulation for the need of disabled people and keeps modifying legal perspectives and directions to integrate people with disabilities in the daily life and local environment. The latest initiative of the Dubai government is an overall goal to become the world’s most disabled-friendly cities, preparing new standards for buildings, parks, hospitals, infrastructure and transport by 2020.

Author: Dr. Krystyna Nechaeva

Legal Consultant, Head of the Corporate Department

Absconding from employer in the UAE

One of the most common violations in UAE labour relations is breaching contact by escape. What actions of employee or employer can cause this offense?

Misbehavior of employee where his absence at work is unknown for seven or more consecutive days, or he exited the country without any notification can be considered as an illegal act and determined as absconding. Hence, such employee will be treated as absconder (run-away). The employer has the right without prejudice to apply the report about this absence to the relevant authority. The Ministry of Labour can then cancel employment visa and impose a labour ban from working in all emirates of UAE.

This legal motion is regulated by Ministerial Resolution No.731 of 2006 on Escape Report Procedures as issued by the Ministry of Labour and based on UAE Federal Law No. 8 of 1980.

Article 128 of UAE Labour Law states:

Any non-national employee who absents himself from work without lawful reasons prior to the end of the contract for a limited period, may not take up employment elsewhere even with the consent of the employer for one year after the date on which he absented himself from duties. And no other employer who is aware of that may employ or keep such employee in his service during such period.

Filing an escape report is not only employer’s right, moreover, it is an obligation in default that will bear legal sequences. The time frame to report an absconding is 3 months term.
As a restriction, the worker can get ban preventing him to stay and work in UAE.
During the period when labour or immigration ban is in force, all new visa applications will be rejected (visit and tourist visas by General Directorate of Residency and Foreign Affairs GDRFA; employment permits – by the Ministry of Labour).

In accordance with Article 120 of Labour Law, as one of the consequences of absconding without informing or communicating with an employer for over 2 months, can cause a termination of an employee without notice:

An employer may dismiss a worker without notice if the worker absents from his work without a valid reason for more than 20 non-consecutive days, or more than 7 consecutive days in a year.

Absconder can face preventive measure upon arrival and be arrested till the decision in his case. The legal procedure to consider absconding case is an investigation and further court judgment. Upon the judgment, the offender can be deported from the country with the following lifetime ban.

From an employer’s side, failure to report an escape, fake or conspired absconding report, cancellation of the absconding report or abusive actions against employee lead to penalties as follows:

1) Dh 10,000 fine in case of fake report;
2) Companies of the owners and all other firms with partners will be blocked unless paying AED 10,000;
3) Bank guarantee amount will not be refunded by Ministry of Labour;
4) The category of the company will be changed to C.

As a general rule, there are two situations where the absconding report may be cancelled either by an employer or by employee:

By employer:

An employer may cancel an absconding report if he gives an approval that there was an error in the absconding report. For example, the name included was wrong or the employee was hospitalized or imprisoned and was consequently absent from work without information.

By employee:

An employee may cancel an absconding report if he can prove his presence at work while he was reported absconding, or has a valid proof for his confinement to the hospital or jail during that period. Permit to get seek leave, medical report, confirmation of vacation can become a background to discharge absconding. Existence of dispute between parties and registered complaint in the labour authority can effect the decision on runaway report in favor of employee.

How to find the right lawyer in the UAE?

 

Anyone who is looking for a lawyer in the United Arab Emirates for the first time might ask himself a several very important of questions:

– Where to start (which Emirate)?
– Which lawyer do I need in my particular situation (criminal, civil, family, labour)?
– What to look for in a lawyer? (Price, quality, experience, nationality…).

Finding the right lawyer to handle your matter is critical in saving the time and money, as well as achieving a favorable result. It is advised to talk to several different lawyers before choosing the right one. First of all, it is better to look for someone that you feel comfortable with, the same nationality or speaking the same language, who better understands you. You should foresee a long-term relationship that can facilitate your ongoing needs.
Lawyers in the UAE do not necessarily have to be UAE nationals. All lawyers must be licensed to practice law in Federal courts and be under the supervision of an accredited law firm.

The best way to find a good lawyer is to:
– Do a thorough web search. Look online, check lawyer’s websites and forums, look everywhere you can. Attentively read all the testimonials you find from the real people.
– Ask in your Embassy/Consulate to recommend you any trusted local lawyer.
– Ask for references from your friends or colleagues who have had own experience with the certain law firms.
– Get referrals from the UAE courts or local Legal Department personally or through surfing on relevant websites.
– Make research and visit the nearest Law offices in your area.
– Ask the right questions while meeting with every lawyer you visit.

Important Tip:
Once you have chosen a lawyer, ask to sign a legal fees agreement and make sure you understand exactly what you are agreeing to, how you will be billed, and how your retainer will work. You might be paying hourly or a flat fee. Find out what it covers exactly. Don’t be shy to ask questions. Do not hire a lawyer who will not give you a legal fees agreement. This is not negotiable.
Be clear on what you expect, what the lawyer can do for you, and what the lawyer thinks it will cost. Lawyers cannot give exact estimates of the entire trial expenses, but they should be able to give you an idea.