International Judicial Delegation in Criminal Matters
As the means of communications advanced among various persons and entities, transportation and travel among countries have become easier along with the conclusion of transactions of all kinds including commercial transactions and banking transfers, and other cross-border transactions that can be completed in a matter of minutes or less , many challenges emerged, the most important of which is how to prevent some people from taking advantage of this development to commit crimes.
It was necessary for the governments to develop their legislation to confront these crimes, and it was necessary for the laws promulgated by countries to include how to provide international judicial delegation, and to clarify the method of implementing the procedures that are taken in this regard.
The United Arab Emirates is one of the countries that has passed special legislation regulating issues related to the provision of international judicial delegation. It issued Law No. 39 of 2006 regarding international judicial cooperation in criminal matters, making it among the countries that have developed its methods in confronting crimes.
The Law clearly includes the procedures to be followed in dealing with requests received by the state through diplomatic channels and the conditions that must be met for its consideration.
It was necessary to have legislation regulating these issues in light of the tremendous development in the method of commercial transactions, especially the use of modern technologies, and the ease of people’s travel between countries now compared to previous years, where it appeared that some people exploited this development in committing organized and cross-border crimes.
It was essential to intensify cooperation between countries, to prevent the commission of crimes or track down the perpetrators after they have committed crimes, to prevent their continued escape to avoid prosecution. One of the most important forms of international cooperation is the exchange and sharing of information, and we explain in this brief article a few of the most important procedures to be followed as well as the competent authorities responsible to implement them.
The International Criminal Police Organization (Interpol):
It is an international organization comprising 195 member states, aiming to establish international peace and security through international cooperation among member states.
Interpol was founded in 1923 and is headquartered in Lyon, France. Interpol is currently headed by Major General Dr. Ahmed Nasser Al Raisi, a UAE citizen, who was elected by the General Assembly at the 89th session in November 2021.
What is the principle of international cooperation?
The principle of international cooperation is defined as a set of means by which assistance is exchanged between two or more countries to achieve a common benefit or service, whether globally, regionally or at the national level, in order to combat crimes and punish their perpetrators.
The forms of international cooperation are represented in the exchange of legal information and texts of the legislation in force and the exchange of experiences in the field of combating international crimes between countries, given that these crimes cross international borders, and necessarily need to track their perpetrators if they manage to escape outside the countries. In this case, it is usually resorted to filing requests for extradition or surrender of the offenders or seeking judicial assistance between countries for criminal cases and crimes committed in their territories.
Due to the differences in penal legislation across nations, it is not possible to provide an exhaustive list of the types of cross-border crimes. However, certain actions, such as tax evasion, money laundering, drug trafficking, electronic fraud, and other countless crimes, have been recognized as punishable crimes by the majority of countries because they require concerted efforts within the framework of international cooperation in the event that borders are crossed between countries.
Request of extradition and surrender of persons
The request to extradite or surrender of persons is subject to certain conditions in accordance with the laws of the extraditing country, such as the need to have a request made by the judicial authority of the jurisdiction requesting the extradition. The reason for which the extradition or surrender request is made should be stated, as a number of jurisdictions require that a court judgment is rendered imposing an imprisonment sentence for a certain period. Also, a need may arise to have the committed act constitutes a criminal law breach in both jurisdictions, that is the country requesting and the country requested extradition. In addition, certain laws require, in order to approve the request, that the request or its reason should not be related to a political nature.
We point out that the law in the United Arab Emirates requires that the punishment should not be less than one year in order to consider the possibility of extradition, and we note that most countries do not extradite their citizens to other countries.
The jurisdiction requesting the extradition and surrender of persons should support its request by the documents of the criminal case indicating that the person(s) committed such a crime, along with the certification of all the documents by the judicial authority with indicating the crime and the legal texts stipulating the penalties to the said crime. This is one of many guarantees stipulated under law to prevent infringement of the liberties and rights of persons.
Also, in the United Arab Emirates, the availability of all formal and substantive conditions for requests to extradite persons is verified by the Criminal Court of Appeal, which calls the person to be extradited to appear before it to express his response to the request issued in respect of him/her. This is another guarantee that ensures the right of the person to express his response or reservation against any action taken against him/her.
Having heard the response of the person requested to be extradited, the court renders its decision either that the extradition conditions are not met, and thus the extradition is denied, or that the court may decide, in case the extradition conditions are met, that extradition may be granted. Then the court gives the choice to the Minister of Justice either to decide to surrender or refuse to surrender the person requested.
Requests for international judicial delegation between countries:
Most laws define a request for international judicial delegation as a request submitted through diplomatic channels from one country to another. The requesting country expresses its desire to the requested country to implement legal delegation by taking a specific action, such as requesting the freezing of a bank account or requesting it to be provided with information and other procedures related to persons and entities, or assistance in summoning and questioning individuals, to name a few.
The procedures for implementing judicial delegation are similar to procedures related to the extradition of persons, except that the request for legal delegation is not subject to the oversight of the Criminal Court of Appeal, as is the case with requests for the extradition of persons.
In many cases, the question also arises about the legal characterization of the request for legal assistance, and what is the nature of this request, where the importance of legal characterization lies in showing how to object to the implementation of the request or procedure, especially in the event that its implementation relates to the rights and freedom of persons or their belongings.
The laws related to the implementation of judicial assistance did not clarify the nature of the legal characterization of the request for international judicial delegation and contented themselves in their implementation by subjecting them to the discretion of the judicial authorities, due to several considerations that may sometimes be governed by relations between countries. Among these considerations is the principle of reciprocity which often transcends the implementation of laws in countries. In addition, some countries are linked with each other by the judicial agreements and treaties concluded by these countries, which often include the implementation of procedures in a particular and special way.
It is also worth noting, that our office Alsuwaidi & Company has a precedent in one of the cases relating to the request for legal delegation. We insisted before the competent court that the request for delegation is in fact an administrative decision, and not an investigation procedure, a judicial ruling or other procedures related to investigations. The Federal Supreme Court decided, in its ruling, the soundness of what we adhered to, which is that the decision of the Minister of Justice to refer the request for judicial assistance to the competent judicial authorities is an administrative decision.
In conclusion, we note that international judicial cooperation is governed by the relations of states that represent the public interest. We also note that the law of international judicial cooperation in criminal matters in the United Arab Emirates is one of the advanced laws that keep pace with modern changes that occur in the international community.
Ali Alraeesi is a partner and senior advocate at Alsuwaidi & Company.
Ali is a member of the United Arab Emirates Bar Association. He is experienced in Criminal, Civil and Commercial Law, and represents clients’ interests before all levels of the UAE courts.
To speak to Ali directly, contact him at firstname.lastname@example.org