Jouslin Khairallah

Managing Director & Senior Lawyer

Email: jouslin@khlegal.ae

Khairallah Advocates & Legal Consultants

Jouslin Khairallah is the founder of a boutique law firm. Her specialist areas are litigation, international and domestic arbitration, criminal law, maritime law, labour law and corporate affairs.

Defining the Crime of Kidnap in the UAE

Defining the Crime of Kidnap in the UAE

Jouslin Khairallah of Khairallah Advocates & Legal Consultants explains how the crime of kidnap is defined in law and handled in the Courts in the UAE.Personal freedom is one of the most significant and greatest personal rights. This concept is also found in international charters on human rights and many countries’ constitutions,including the UAE constitution, which adheres to these international charters.

The UAE Constitution

In fact, the UAE Constitution upholds and protects an individual’s freedom rights. Individual freedom cannot be assaulted, tampered with or prejudiced.

Article 26 of the UAE Constitution states,‘personal freedom shall be guaranteed to all citizens. No person may be arrested, searched, or detained except in accordance with the provisions of the law. No man shall be subjected to torture or other indignity.’

The legislator then affirms the principle of protection of personal freedom by developing a number of punitive provisions which promote, protect and safeguard this freedom against assaults or restrictions, so individuals can reach the highest level of social and human sophistication, and in order that standards of living can be improved.

Criminalisation

As a result of this the UAE legislator has also been keen to criminalise  actions which are detrimental to, or jeopardise individual freedom, regardless of an individual’s religion, colour, or gender. All people are considered as being on an equal footing in terms of humanity.

Kidnap

Unlawful kidnap, arrest, detention or deprivation of freedom constitutes an  assault on the freedom of the individual. As a result,  Article 344 of Federal Law No 3/1987 states, ‘A person, who illegally kidnaps, arrests, detains or deprives a person of his freedom, whether by themself or through another by any means without lawful justification, shall be punished by provisional imprisonment’.

The punishment is life imprisonment in the following cases:

  1. If the act results from impersonating a public official or pretending to be performing or in charge of a public service, or by making false contact.
  2. If the act is committed by trickery, by force, by threatening to kill or seriously injure, or by inflicting physical or psychological torture.
  3. If the act is committed by two or more persons, or by an armed person.
  4. If the kidnapping, arrest, detention or deprivation of freedom lasts more than one month.
  5. If the victim is female, a minor, a person who is insane or is an imbecile.
  6. If the purpose of the act is profit, revenge, in order to rape the victim, a violation of his or her honour, to cause them injury, or force them to commit a crime.
  7. If the act is perpetrated against a public servant in the course of his duties or in pursuance thereof.

If the act leads to the victim’s death, the punishment is the death penalty or life imprisonment. The punishment which is prescribed for the main offender also applies to anyone who becomes an intermediary to any of the crimes indicated in Article 344, and anyone who knowingly conceals a kidnapped person.

Types of Kidnap

Chapter 3 of Federal Law No 3/1987 details three types of kidnap crime.

  1. A restriction of an individual’s freedom by unlawfully kidnapping, or the kidnapper or others arresting or detaining them for no more than a month. This type of kidnap is punishable by provisional imprisonment for a minimum of three years and a maximum of 15 years.
  2. A kidnap crime with the more severe punishment of life imprisonment, which applies in any of the cases exclusively mentioned in items 1  to  7 of paragraph 2 of Article 344 of Federal Law No 3/1987.
  3. Where the act of a kidnapper leads to the death of the victim the punishment is the death penalty or life imprisonment.

The Legislator puts the main offender and any intermediary in any of the crimes detailed in Article 344 on an equal footing in terms of punishment.

Courts

The UAE Legislator has developed a comprehensive provision on the crime of kidnap. However, the Dubai Court of Cassation (DCC) emphasises that, ‘A person who commits any of the acts in Article 344 by taking a victim away from the place, in which he is kidnapped, arrested, or detained; by depriving the victim of his freedom to move for a period of time, whether it is for a short or long time; or by assaulting his personal freedom shall be a kidnap offender as provided in Article 344 of the Penal Code’ It has also been stated, ‘The material element of such a crime is realised by just any of the aforementioned acts. As for the criminal intention, it is a substantive matter, which would be decided by the Trial Court, without any commentary thereon, as long as it provides a proper inference’ (DCC No. 163/ 2009 issued on 04/ 05/2009).

The UAE Courts, also apply a punishment for attempting to assault individual freedom in any form, e.g. the DCCdefined, in accordance with Article 344 of Federal Law No. 3/1987, an attempt as beginning to commit a crime, whether it stopped or failed for reasons beyond the control of the offender. In other words, to constitute an attempt, it is not necessary that the offender completes the material elements of the crime. The attempt and intention to commit the crime are constituted by starting the acts, or intending to commit, the material elements of the crime. The Court considers that completion of the commencing act(s) inevitably will leade to the completion of the crime, albeit the crime has been stopped beyond the control of the offender. The Court looks into  the factors which prevented the crime from happening, e.g. it considers if the reasons preventing the crime from happening were beyond the control of the offender, (DCC No. 287/ 2003, dated 29/11/ 2003).

 

Children’s rights

In line with the Declaration on the Rights of the Child, for the purpose of family protection, the UAE legislator has stated in Article 329 of the Federal Law No. 3/1987 that, ‘Either a parent or grandparent who abducts his minor child or grandchild, by himself or through others, even without deception or coercion, from the person who is entitled to be his guardian or curator in accordance with a judgment or order passed by a judicial authority, is punished by imprisonment or a fine’.

It is clear the UAE Legislator is keen to protect the personal freedom of individuals, including that of newborn babies, even if the person who assaults that freedom is the parent or a grandparent. In accordance with the provisions of the Constitution and law, which prevent prejudice of an individual’s freedom, and in line with international charters, the principle of stability of freedom among society’s members, the teachings of Islam, and the verse: ‘And remember when you were few and were reckoned weak in the land, and were afraid that men might kidnap you, but He provided a safe place for you, strengthened you with His Help, and provided you with good things, so that you might be grateful.’