18 Nov 2019

Anti-Corruption Legislation – Continued Growth in the UAE Penal Code

Authored by: Walid Azzam and Mohammed Abbas

The UAE has been continuously amending its laws and regulations to match intentional approaches related to criminal matters.

The United Nations Convention against Corruption (UNCAC) was ratified by the UAE by virtue of Federal Decree No.8 of 2006. Under Chapter 3 of the UNCAC, signatory states must provide for the criminalisation of a wide range of corrupt practices and implement effective preventative law enforcement measures. In further compliance with the UNCAC, the UAE has expanded the scope of the Anti-Corruption provisions contained in Federal Law No.3 of 1987 (the Penal Code) by virtue of amendments enacted through Federal Law No.24 of 2018 (the 2018 Amendments).

Most significantly, the 2018 Amendments extended the scope of the UAE Penal Code outside the borders of the UAE with regards to crimes relating to corruption and bribery. Article 234, which imposed sanctions on public officials or public servants that take or solicit bribes for the performance or non-performance of their jobs, now also criminalises such behaviour on the part of foreign public servants and employees of international organisations. Article 237, which criminalised attempts to bribe a public official or servant, has also been expanded in the same way. As a result the provisions of Article 234 and Article 237 could very well apply to an individual in another jurisdiction. This marks a significant step forward for the fight against corruption in the UAE, in line with the UNCAC standards.

Another expansion is the widening of enforcement authorities’ powers under Article 82 of the Penal Code, which deals with the confiscation and seizure of assets used in or resulting from crimes. Article 82 now provides for confiscation of objects “whose manufacture, use, possession, sale or offer for sale are deemed a crime”, even where they are not owned by the wrongdoer. This amendment better aligns the law with Article 31 of UNCAC, which requires each state, to the greatest extent possible, to take necessary enforcement measures relating to the confiscation and seizure of the proceeds of corruption.

One of the most significant challenges in the fight against corruption is detection. In light of this reality, and with a view to promote reporting, the 2018 Amendments extend the attorney general and public prosecutors’ ability to request amnesty from the Court for a convicted individual who provides information in support of an anti-corruption enforcement action.

Finally, Article 257 was amended to better address corruption of expert witnesses in judicial proceedings. In the UAE Court system investigators, forensic experts and translators are regularly called upon to assist the Court in making a decision. Article 257 initially aimed to sanction anyone who issued a report, opinion or decision that was “contrary to the duty of impartiality and integrity”. The Article was arguably too wide and subject to possible misuse. The new Article 257 takes a much clearer approach, making it a crime for anyone to “knowingly” confirm any matter contrary to the truth or to “knowingly” interpret the same inaccurately. The amendment also aims to curb the use of Article 257 in arbitration proceedings for pressure or as a delay tactic.

It should be noted that this is not the first time in recent years that the Penal Code has been amended in order to better combat corruption.  Federal Law No.7 of 2016 widened the definition of a public official, added new criminal sanctions relating to the misappropriation of public funds and removed the statute of limitations for criminal actions brought for bribery, among other changes. The recent 2018 Amendments show the UAE’s continued commitment to better combatting corruption, both in the UAE and abroad.

(Originally published in the International Bar Association’s (IBA) Anti-Corruption Committee Newsletter)

 
 

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.