Ordinarily, the arrestees are kept in detainment for a certain period or until the public prosecutor finishes the investigation or the court completes trial. However, the arrestee can also be released on bail, which is a temporary release offered to the arrestee, provided certain guarantees are provided. Given the high risks of expatriates absconding from the country if bail is issued to them, the courts, in order to alleviate the risk of abscondment, order the defendant to submit a guarantee or have a guarantor. A guarantor is someone who guarantees the conduct of the accused upon his being released on bail.
The guarantor may be required to submit his passport, and/or sign a bail bond for releasing the arrestee from police custody, etc. There are numerous legal responsibilities, outlined by Lawyers in Dubai after the guarantor signs the bail bond or offers his passport as a guarantee which is discussed below in detail.
UAE Law
Under the Federal Law No. 33 of 1992 Concerning the Criminal Procedural Law (Criminal Procedural Law), a person who has been convicted of a crime sanctioned by the death penalty or a life imprisonment sentence may not be released on bail.
Under Article 111 of the Criminal Procedural Law, the public prosecutor may order a provisional release of the accused for a felony or a misdemeanour, at any time whether on its own decision or upon request of the accused unless the latter has been referred to the competent court for trial, in which case, his release falls within the jurisdiction of the said court.
In accordance with Article 112 of the Criminal Procedural Law, bail may be conditioned on a personal or pecuniary bail to be determined by the public prosecution or the judge, as the case may be. Accordingly, conditional bail is issued upon submission of either a financial guarantee or personal guarantee. Thus, an individual before accepting the role of a guarantor must clearly understand the following liabilities under the criminal law of the UAE.
Guarantees Under Criminal Law
The Criminal Procedural Law offers the public prosecutor or the criminal court-wide discretionary powers to decide the terms of bail in the bail order. Under this, the public prosecutor can order the defendant to submit a personal guarantee, including his or a third person's passport as a guarantee for bail. The accused will be considered a self-guarantor if he submits his passport as the guarantee. When the third person submits his passport, he becomes the guarantor.
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 upon receiving the final judgment or it can be retained by the court, should the defendant fail 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:
- By submitting the value in the court;
- Submitting a bank guarantee in accordance with the bail order;
- Depositing the funds to the guarantor who will later submit it in court if the defendant fails to abide by the bail order.
Article 112 of the Criminal Procedural Law states that the amount of bail should be allocated as an adequate penalty for his absence from appearing for the procedures during investigation or trial and as an incentive to perform the duties imposed on him.
Article 114 of the Criminal Procedural Law also states the following.
“Should the accused, without an acceptable excuse, fail to fulfil one of the obligations imposed on him under Article 112, the pecuniary bail shall be the property of the government without the need for a judgment to this effect. The amount of bail shall be returned in full if a non-suit decision is rendered in the case or if the accused is declared innocent. The court may, in any case, decide to refund the amount of the bail, any portion thereof or even discharge the bail or from his obligation.
There have been cases where the court imposed several conditions on the accused, prior to issuing bail, such as seeking both personal and financial guarantees, specifically for foreign nationals. The rationale behind such strictness is simple: in cases where the court orders only a personal guarantee, it restricts the defendant from absconding but does not oblige the defendant to attend the proceedings. Accordingly, the court may order a personal guarantee from the third party along with a 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 a 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 the defendant's presence in the court whenever necessary.
Article 113 of the Criminal Procedural Law states as follows.
“The amount of bail shall be paid by the accused, or others, through depositing the assessed amount with the court treasury. The bail may also consist of an undertaking made by a solvent person to pay the assessed amount of bail in case the accused does not fulfill the release conditions. This undertaking shall be recorded in the investigation report or by making a declaration in the clerks' office and both the report and the declaration shall have the force of an executory instrument.
Guarantors 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 guarantor may be held personally liable for the amount as prescribed under the law. Accordingly, 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.
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