News & Insights
UAE Civil Code identifies Federal Law No. (10) of 1992 alongside, Federal Law No. (5) of 1985 on the Civil Transactions the respective channels to deal with evidence in Civil and Commercial Transactions. The laws were further amended through other Legal provisions of Federal Law No. (1) of 1987 and via Federal Law No. (36) of 2006 in October 2006. This law is certainly the backbone of the legal framework concerning the UAE law of evidence as it governs all transactions of any order in the realms of Civil and Commercial laws.
This law can be equally effective in criminal cases, as it encompasses the legal realms of the subsequent contractual dealings, where evidence is sought to regulate the court proceedings between a Plaintiff and a defendant.
We will now analyse the law and then bring it into perspective with corroborative matters. The application of Law no. 10 of 1992 implies greater benefits to the residents of the UAE by proposing the significance of this law and its applications in the various realms of the UAE Legal Circuit.
LEGAL EVALUATION OF CORROBORATIVE EVIDENCE
Corroborating evidence is a form of legal proof that solicits support to an existing proposition garnered through some initial evidence, therefore confirming that proposition. In a court of law, corroborating evidence is accepted to verify the testimony of witnesses. Corroborative evidence has always been part and parcel of the Arab Society, since prehistoric times. In the legislative system of the UAE, since the laws were primarily adopted from a Shariah root, Islamic laws of evidence were enacted in the UAE Civil Code procedures. Article 69 of and 70 of the UAE Evidence Law provide the clauses for corroborative evidence to be included in a case hearing, where deemed appropriate. The court itself or the contracting parties may appoint one or more experts to provide their opinion issues related to a verdict of a case. In the promulgation of Article 71/1, the court uses its prerogative to enact and define the mission of the appointed expert. The expert will then be identified as a ‘Corroborator’. An expert may be considered the equivalent of a jury in the Common law practices. The findings or report can be rejected completely or partially as per judgment of the Dubai Court of Cassation:
‘‘An expert’s opinion is no more than a piece of evidence which is subject to evaluation by the court without any supervision in this respect. The court is free to accept a part and reject another part of the report as the court may only adopt what it is satisfied with. The court may also determine what is left undetermined by the expert’s report so long as the facts of the case support such determination’’.
The issue of the age of the witness is deemed to be at 21 years for males. This action is to ascertain adulthood as in the Maliki school of thought, qualified the witness status from the first signs of puberty. Hence, there have been cases, when an 11 year old was called to the court, in a divorce hearing, and he testified on behalf of his mother’s claim. The court admitted the youth’s statements, as it confirmed to all the existing proofs provided for the proceedings. Although the civil code system relies heavily on numerical values, electronic evidence has played a massive role in corroborating evidence. Let us now examine what electronic devices and items may include in this segment.
ADMISSIBLE PROOFS IN THE UAE COURTS
Not all but some forms of electronic mediums are admissible as corroborative proofs in the UAE Courts:
Retention of Electronic Records Article 8 section of Electronic Transactions and Commerce Law No. 2 of 2002 stipulates:
“Where a rule of law stipulates that any document, record or information be retained, for whatever reason, that requirement is satisfied by retaining such document, record or information in the form of an Electronic Record, if the following conditions are observed:
(a) The Electronic Record is retained in the format in which it was originally generated, sent or received, or in a format which can be demonstrated to represent accurately the information originally generated, sent or received.
(b) The information remains stored in a way that is accessible and usable for subsequent reference.
(c) The retention of information, if any, so as to enable the identification of the origin and destination of an Electronic Communication and the date and time when it was sent or received….”
Hence, if a WhatsApp communication did occur regarding a particular transaction of commercial value, it will be admitted as proof at the UAE Courts. The burden of proof always remains with the plaintiff, therefore the proof will only be validated upon denial by the defendant, as Article 112 of Federal Law Number 11 of 1992 regarding the Civil Procedure (the Civil Procedure Law) mentions that “Proving the claim’s evidence are: writing, testimony, indices, examination and experience, declaration and oath”.
Electronic Transactions Law contracts agreed between parties through electronic devices, even though partial, is valid under Article 13, which states:
“(1) For the purpose of contracting, it is permissible to express offer and acceptance, partly or wholly, by means of Electronic Communication.
(2) A contract shall not be denied validity or enforceability on the sole ground that it was concluded by means of one or more Electronic Communications.”
Another electronic means to submit corroborative proof is through screenshots. The screenshots are widely used in all realms of the judicial system. Starting from a mere FIR Report, through subsequent instructions for your electronic devices leading to the evidence submitted to the courts by the Public prosecution can be the plausible outcome of this law. All authorities will welcome a screenshot if it’s valid and authentic.
The issue of videos has to be examined through a bifurcated sense. Videos, like CCTV’s, are used as evidence and will always be considered in the wake of street crime.
But to produce a video, especially to defame someone, can be taken against the plaintiff. As we all know of the famous case of 2013, where a Dubai Resident, filmed an outrageous incident involving a guy slapped by a government employee, was also sentenced under the UAE privacy law. Although the government official was dismissed, for his outrageous action, the resident was equally penalised for the video filming.
Article 378 of Federal Law No.(3) of 1987 of the Penal Code as amended by Federal Law No. 34 of 2005 states that:
“A punishment of confinement and fine shall be inflicted on any person who attacks the sanctity of individuals’ private or family life by committing any of the following acts in other than the legally permitted cases or without the victim’s consent:
- a. Eavesdropping or recording or transmitting by any system of whatever kind, any conversation held at a particular place or via the phone or any other set.
- b. Picking up or transmitting by any system of whatever kind, a person’s picture at a particular place. If the acts referred to in the above two cases during a meeting within the hearing or sight of the person attending, their consent shall be required.”
Under the above enactment, UAE law strictly forbids any recording or transmission of a recording through electronic means. Electronic voice recording of an individual should not be done without the consent of the person. In fact, under Article 374 of the Federal Law No. 3 of 1987 on Issuance of the Penal Code, which states:
“Punishment by detention for a period not exceeding six months or by a fine not exceeding AED 5,000 shall apply if slander or abuse is transmitted by telephone, or face to face with the victim and in the presence of a third party.
Punishment by a fine not exceeding AED 5,000 shall be imposed if slander or abuse occurs face to face with the victim alone without the presence of a third party.”
The UAE law is immensely flexible and diverse enough to accommodate people from all walks of life. People across the globe applaud the jurisdictional methodology of the UAE. Corroborative evidence is enormously sensitive when it comes to personal status matters. The same occurrence can happen in interlocutory laws, personal status laws and the doctrine of precedence for marriages. A divorce through WhatsApp/SMS/screenshot/viral video/social media is declared inadmissible by the Personal Status Courts. Hence, a video which is made through unsolicited means, to prove a sex crime, will not be admissible in a court of law in the UAE, as it espouses defamation. On the contrary, the claimant will be charged for creating an inappropriate condescending towards a person or two. Hence, one must weigh his action before its execution and always seek legal advice before commencement of the action.
This article, and any other BBA’s publication, is for general information only and in no case can be considered as legal advice on any specific situation, fact or dispute. This article may not be quoted or mentioned in any other document without BBA’s previous written consent. The mailing and receiving of this article are for informational purposes only and do not create an attorney-client relationship between sender and receiver. The content reflects the personal view of the authors and does not reflect necessarily those of BBA.