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For those in construction, you can learn about how the tendering environment impacts risk-pricing for contractors, the updates on the legal framework of the construction industry and how contractors can protect themselves against financial difficulties.
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Mohamed Al Marzouqi - Deputy Managing Partner - Litigation / Legislative Drafting
Omar Khodeir - Senior Associate - Litigation
Since the recent amendments to the Federal Criminal Code last year (Federal Decree By Law No. 15 of 2020), the Union Supreme Court issued a recent judgment (Federal Supreme Court judgment 1308 of 2020) which clarified the position on the use and possession of alcohol. The court in this case provides that if there is a local law of an Emirate that prohibits the consumption of alcohol (and this Emirate has jurisdiction) then this law should apply instead of the Federal Criminal Code. Whilst this judgment was issued by the highest court in the UAE, there is no concept of binding precedent in the UAE (a civil law jurisdiction). As such, it is possible that the above position may change depending on future judgments.
In this article, we discuss a possible interpretation of the amendment made to the Federal Criminal Code in relation to the consumption and possession of alcohol.
Article 313 (bis) of the Federal Criminal Code was amended pursuant to Law No. 15 of 2020. We outline the changes below:
Prior to the amendments, a person consuming alcohol, or possessing, acquiring, importing, exporting or manufacturing alcoholic beverages for personal use or offers to third parties without authorization and as prescribed by law was liable to detention for a period of not less than six months and a minimum fine of ten thousand Dirhams, or either of these two penalties. Likewise, a person possessing, acquiring, bringing, manufacturing, re-exporting, promoting or publicizing alcoholic beverages for trade purposes without authorization and as prescribed by law was liable to detention for a period of not less than two years and a minimum fine of fifty thousand Dirhams, or either of these two penalties.
An English translation of the previous version of Article 313 (bis) of the Federal Criminal Code No. 3 of 1987, which was introduced in 2006, reads, as follows:
Article 313 (bis):
The penalties stipulated in this Article shall not prejudice the penalties stipulated for violation of licences or permits and the conditions thereof.
Article 313 has undergone a radical change, pursuant to Law No. 15 of 2020. An English translation of Article 313 (bis) of the Amended Code reads as follows:
As may be seen, consumption of alcohol is no longer considered a criminal offence as matter of UAE Federal law, provided that certain conditions are met such as consuming it in authorized locations in accordance with the legislations in force, with due consideration to the local laws that each Emirate may issue.
The UAE Public Prosecution charged three individuals, among other charges, with consuming alcohol without a license in contravention of the Federal Criminal Code No. 3 of 1987.
The Federal Court of First Instance found the three individuals guilty of the alleged offences.
Upon appeal, the Federal Court of Appeal overturned the judgment in part and ruled that all three individuals were not guilty of any offense in relation to the consumption of alcohol. The Court of Appeal noted that the consumption of alcohol is no longer a crime pursuant to the amended Article 313 (bis) of the Federal Criminal Code.
The Public Prosecution challenged the Court of Appeal’s ruling before the Union Supreme Court. The Prosecution argued that the ruling erred by failing to take into account the second paragraph of Article 313 (bis), as amended (see above), which provides that each emirate is to regulate the consumption and use of alcohol and that the emirate of Sharjah had a law in place (since 1972) that criminalizes the consumption of alcohol.
The Union Supreme Court agreed with the Prosecution. It noted that, in applying Article 313 (bis), above, the court must take account of the local laws of each Emirate. In the present case, this required an assessment of the local law of Sharjah which still criminalizes the consumption of alcohol. The Union Supreme Court thus reversed the appeal judgment partially and directed the Appeal Court to review the appeal again.
UAE law is comprised of Federal and local laws. Prior to 1987, each emirate applied its own local criminal laws (Law No. 8 of 1976 regarding alcoholic beverages for Abu Dhabi and the Dubai Law No. 1972 for Dubai). In 1987, the Federal Criminal Code was promulgated and is now applied in all Emirates. However, this does not prevent each Emirate from applying its own local criminal laws as long as it is not inconsistent with the Federal Criminal Code or the Federal Criminal Code is silent on an issue covered by local law.
In 1976, the Federal Criminal Code did not have a provision criminalizing the consumption and possession of alcoholic beverages. This was probably due to the existence of another general provision regarding the application of Islamic principles, which included Islamic penalties for the consumption of alcohol. At that time, this was applied. This position changed pursuant to an amendment that occurred in 2006 which added article 313 (bis).
The current position indicates that the legislature wanted to remove the requirement of obtaining a license to consume alcohol, so long as the consumption occurs in situations permitted under the law.
It is important to note that Abu Dhabi (prior to the issuance of the above amendment) cancelled Law No. 8 of 1976. It is also expected that the remaining emirates will cancel or amend its local laws governing the consumption and use of alcohol.
In the absence of a conclusive interpretation of the UAE courts position, further clarity is expected with the issuance of new judgments.
For further information, please contact Mohamed Al Marzouqi or Omar Khodeir.
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