A recent case at the Dubai Court of Cassation was overturned based on a procedural error by the public prosecutor and police. Our firm represented a client from an African country who was accused and detained for possession and use of narcotic drugs such as hashish and marijuana. Our client, along with six other individuals, was accused of illegal possession of hashish and marijuana in December 2013.
Police and anti-narcotic CID agents obtained information from their reliable sources indicating that our client, along with his acquaintances, who were residing in Dubai Marina, possessed drugs and had been witnessed using those drugs in the privacy of their homes. In these kinds of matters, if the police obtain any conclusive evidence or information, they are obliged to seek permission and an order from the Public Prosecution to carry out serious investigations. This order should come from the Public Prosecutor himself and the names of the accused should be mentioned along with a timeframe to execute that order. This is according to Article 221 and Article 228 of the Criminal Procedure laws.
After obtaining the investigation and search warrant, Police raided the apartment of one of our client’s acquaintances. They found quantities of marijuana and hashish. Our client happened to enter the apartment whilst police were carrying out their investigations. Police suspected that our client might be involved with his acquaintances – which led them to search and conduct medical tests on our client. Police concluded that our client, along with his acquaintances, was using drugs and possessed a small quantity of hashish on him. They were all immediately detained and taken to the police station. Our client later confessed to possessing and using drugs in the privacy of his home.
After his arrest, the Public Prosecutor transferred the matter to the Criminal Court to render a judgment on the possession and use of drugs. Our client sought legal assistance and appointed our firm as his attorneys to represent him in this matter. Before the Court of First Instance, we argued that the police and Public Prosecution made a serious error in not following criminal procedure laws before our client's arrest. The Court of First Instance ruled that all the accused had confessed to possession of drugs, hence they should be held guilty of possession and use of illegal drugs. The case was then referred to the Court of Appeal. Our argument, before the Court of Appeal, was that police should have requested a search warrant and investigation order from the Public Prosecutor after obtaining a conclusive piece of evidence indicating our client’s involvement in possession of drugs. The search warrant that the police had did not state the name of our client and did not indicate the timeframe to execute the Prosecutor's order. Despite all of our efforts to obtain a favourable judgment, the Court of Appeal rejected all arguments and sustained the judgment rendered by the Court of First Instance.
The matter was then referred to the Court of Cassation. Our arguments, before the Court of Cassation, in summary, were a serious error during the investigation procedure along with a lack of conclusive evidence indicating our client's involvement in possession of drugs. We further argued that our client's confession and admission should not be taken into account because the mere admission of possession resulted from a serious error in procedure. Therefore, admission of possession should be rendered null and void because of the void procedural conduct by the police and Public Prosecution. As a result, the Court of Cassation transferred the matter back to the Court of Appeal to further investigate the matter. The Court of Appeal shall endeavour to produce more evidence to render a final verdict in this matter.
UPDATE:
The UAE has issued Federal Decree Law No 30 of 2021 on Combating Narcotics and Psychotropic Substances, which has replaced Federal Law No 14 of 1995 on combating narcotics and intoxicants. The new law was issued on 16 September 2021 and came into force on 2 January 2022. According to Articles 10 and 11 of this law, it is prohibited to possess, acquire, transfer, import, export, produce, manufacture or bring narcotics and psychotropic substances, as mentioned in the relevant schedules, in the UAE. A person violating these provisions would be liable for penalties of not less than 7 or 10 years of imprisonment (depending upon the narcotic/psychotropic substances), as well as fines. The new law has introduced many changes to the previous law on combating narcotics and has given courts the discretionary power to make orders related to the deportation of a foreigner under Article 75 of the new law.
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