Ordinarily, the arrestees are kept in detainment for a certain period or until the public prosecutor finishes the investigation. However, in other cases, the arrestee can be released on bail, which is a temporary release offered to the arrestee awaiting the trial along with certain guarantee either passport and a certain amount of money.
As almost 90%
of UAE's population are expatriates, it raises a major concern for UAE
court as the risks of expatriates absconding from the country severely
increases. In such circumstances, the court in order to alleviate the
risk of abscondment orders the defendant to issue a guarantee or have a
guarantor. A guarantor is someone who guarantees the conduct of the
accused upon releasing him from the bail. The guarantor steps into the
position of the accused which might lead to serious consequences as in
several cases, the guarantor has to submit his passport sign a bail bond
for releasing the arrestee from police custody. There are numerous
legal responsibilities, outlined by Lawyers in Dubai, post the guarantor
signs the bail bond or offers his passport as a guarantee which is
discussed below in detail.
The laws of UAE are uncertain and vague with respect to bail
procedure and the role of a guarantor as it is mostly dependent upon the
discretion of the judge. Generally, bail is offered only in cases where
there is a lack of evidence to prove the defendant's guilt or
innocence. According to Federal Law Number 3 of 1987 concerning the
Criminal Law (the Criminal Law), the public prosecutor may post either
receiving an application from the arrestee or on its motion can issue
bail on certain conditions or guarantee. In addition, the public
prosecutor may also take into consideration the previous convictions of
the accused or any other offences in which the accused was a party prior
to issuing bail (Article 106 of the Criminal Law). In furtherance to
this, conditional bails are utilized upon submission of either financial
guarantee or personal guarantee as highlighted under Article 122 of the
Criminal Law. Thus, an individual prior to accepting the role of a
guarantor must clearly understand the following liabilities under the
criminal law of UAE.
Guarantees in under Criminal Law
The Criminal Law offers the public prosecutor or the criminal court
wide discretionary powers to decide the terms of bail in the bail order.
Under the said discretion the public prosecutor can either order the
defendant to submit a personal guarantee by submitting his or a third
person's passport as a guarantee for bail. In such cases, the defendant
will be considered as self-guarantor if he submits his passport as the
guarantee and the third person becomes the guarantor upon submitting his
passport. Further, a personal guarantor can be a natural or a legal
person as the case may be or as the public prosecutor agrees.
On the other hand, the financial guarantee is an amount of money
submitted to the court as a guarantee which will be refunded to the
accused or guilty upon receiving the final judgment or it can be
retained by the court, should the defendant fails to oblige by the bail
order. In line with the foregoing, the defendant can submit the
financial guarantee for the bail in the following ways:
a. By submitting the value in the court;
b. Submitting a bank guarantee in accordance with the bail order;
c. Depositing the funds to the guarantor
who will later submit it in the court, in any event, if the defendant
fails to abide by the bail order.
With the change in residents' behaviour towards bail procedure, the
criminal courts have made stricter policies regarding issuing bail
order. We have witnessed cases where the court imposed several
conditions on the defendant prior to issuing his bail such as seeking
both personal and financial guarantee specifically to foreign nationals.
The rationale behind such strictness is simple and clear, as in cases
where the court orders only for a personal guarantee, it may restrict
the defendant from absconding, and however, it does not oblige the
defendant to attend the proceedings. Thus, in several circumstances, as
the court may deem fit, they order for a personal guarantee from the
third party along with financial guarantee which will force the
defendant to duly attend the proceedings.
Should the Guarantor Guarantee?
As a general practice in UAE courts, if a defendant offers a
guarantor's passport, the guarantor has to submit a bail bond in order
to release the defendant. The bail bond so submitted is surety
mentioning the details of the defendant and his charges and details of
the guarantor. It also highlights the penalty if the defendant fails to
oblige with the bail order which will be either paid by the defendant or
the guarantor (Article 113 of the Criminal Law). Upon signing the bail
bond, the guarantor assures the court of defendant's presence in the
court whenever necessary until either the execution of the case or
defendant release. The guarantor takes the criminal and civil liability
on behalf of the defendant, should the defendant fails to attend the
proceedings or absconds.
Guarantor be aware!
The bail bond is an executive deed signed by the guarantor making him
liable for the actions of the defendant, upon his failure to attend the
court proceedings. The spectrum of liability on the guarantor is vast
considering the event where the defendant has to pay fine to the court.
In such circumstances, the guarantor must note that he will be
personally held liable for any amount as prescribed under the law. Thus,
it is advisable that anyone considering to act as a guarantor must
ensure that he/she is aware of the consequences in case of default by
the defendant or seek the assistance of Criminal Lawyers in Dubai.