17 Aug 2015

Hadef in the Courts: Filing a Criminal Complaint

Authored by: Walid Azzam and Karim Mahmoud

Hadef in the Courts: Filing a Criminal Complaint

Partner, Walid Azzam, and Associate, Karim Mahmoud, discuss the challenges of criminal complaints and the practicalities of getting these accepted by the UAE government authorities.

We are often approached by clients with commercial disputes who are also seeking to take criminal action in respect of a perceived wrong.  Many civil issues or matters, for example, those involving disclosure of confidential information, contain elements that can fall within provisions of the Criminal Code. 

It is within this intersection of civil and criminal law that criminal complaints can become very challenging.

If the alleged crime is not clear-cut (and financial crimes or complex frauds based on contracts often are not) it can be very difficult to have a criminal complaint formally accepted by the police. Matters involving an underlying contract are often perceived as being civil in nature and rejected by the police.

The main challenge in these matters is often evidentiary. Our role as lawyers is often putting the pieces of the puzzle together with the available proof in a sufficiently clear way to cut through the details and express the alleged crime in a coherent way. Often, due to the complications of the matter, the puzzle is incomplete and the picture unclear.

In our experience, commissioning an expert with the requisite qualifications to help prepare a criminal complaint and provide a supporting expert report can increase the probability of getting the case accepted by the authorities.

In UAE civil court proceedings, expert reports can serve as an influential and persuasive basis (and at times, the sole basis) for a successful claim. In a criminal investigation, an expert report provides a third party view of the evidence compiled and, ideally, provides further clarity on what transpired.

The goal of any expert report is to help fill in pieces of the puzzle. Engaging an expert to produce a report requires a mandate that is sufficiently specific to clarify the actions that took place and highlight the possible crime.

When filing a criminal complaint, the police will typically take statements, make a report, and send the file to the Public Prosecution for review and decision on whether to open a formal criminal investigation.

Even armed with a thorough expert report, it may still be difficult to successfully lodge a criminal complaint, especially when dealing with complex matters. In such instances it is often beneficial to attempt to meet the prosecutor once the complaint is filed with the police. If possible, such a meeting entails an overview of the facts and a discussion of the applicable laws.

In the event the prosecutor concurs with the assessment that there may be a crime, the prosecutor can send the file to police and order that an investigation be made. Pending the result of the investigation, formal charges may be brought or the complaint can be dismissed outright.

If the prosecutor is not convinced that the acts are criminal in nature from the outset (i.e. prior to a police investigation), the complaint is most likely rejected.

However, if a complaint is rejected (either by the prosecutor or by the police) it is possible to file an objection and have the complaint reviewed again. This is commonly referred to as a final review.

Engaging an expert has the added value of an expert report to support the complaint as well as bolstering the probability of getting the opportunity to explain the matter to the police officer in charge of the investigation. Both the police and the public prosecution have wide authority in determining what matters are formally investigated and whether charges are brought so such interim steps can make the difference between an acceptance and rejection of the complaint.

 

 

This article, including any advice, commentary or recommendation herein, is provided on a complimentary basis without consideration of any specific objectives, circumstances or facts. It reflects the views of the writer which may, in some cases, differ from those of the firm, especially in the developing jurisdiction of the UAE.