Cap on jail time could see spate of appeals

A ruling in Dubai has enforced a cap on the maximum amount of time that financial criminals can spend behind bars.

"We will be expecting more protests to come forward after this ruling," says the Dubai Criminal Courts Chief Justice Ahmed Ibrahim Saif.

DUBAI // The judiciary is bracing for a slew of legal protests after a landmark ruling enforced a cap on the maximum amount of time that financial criminals can spend behind bars. The Dubai Criminal Court of First Instance last week ordered the immediate release of Ibrahim al Tunaiji, a 39-year-old former Central Bank assistant treasurer who was jailed four years longer than his sentence decreed.

While it is not known how many inmates the ruling could affect, Dr Raed al Awlaky, Mr al Tunaiji's lawyer, estimates hundreds of people across the country are being unlawfully held after serving their sentences. The ruling hinged on a clause in federal law limiting any sentence extension for non-repayment to six months. Mr al Tunaiji's seven-year prison term for embezzlement was commuted to three years in 2006 and he was due for release that same year.

And though Mr al Tunaiji had repeatedly petitioned for his release through his attorney, federal law on financial crimes required full restitution of any monies involved. He had repaid almost half the Dh3.1 million (US$844,000) he was convicted of taking. "It was not the first time that such a protest has been presented to court, but it is the first time that a court has ruled in favour of the plaintiff," the Dubai Criminal Courts Chief Justice Ahmed Ibrahim Saif said.

"Most are placed with no legal grounding. We will be expecting more protests to come forward after this ruling. As a judicial entity, we have to review the legality of claims and act upon this. "According to the federal law, the public prosecution is the institution which oversees the execution of the court sentences," he added. "Initially a person who wants to protest his incarceration has to file with the public prosecutors and then they accept or refuse the protest."

Judge Hamid Abdel Latif, who issued last week's ruling, said: "When a person is sentenced to pay a penalty, law 309 applies only if it is a financial crime. "Article 309 of the penal procedures code states that a person who is convicted in a financial case is ordered to repay the amount, penalties and is incarcerated, the person's assets are seized and repayments are done to cover the amount. "When the person is unable to complete repayment and all options are exhausted, the defendant is incarcerated for each Dh100 one day. The law, however, states that the maximum period of incarceration is six months."

That clause in the law was never enforced, said Dr al Awlaky. Therefore, no one ever challenged the public prosecution on it, he said. Dr al Awlaky said that he pleaded with the Dubai Attorney General himself, citing federal law 309 and its unenforced codicil. "Although it is not used, the law exists so no person [convicted of a financial crime] serves a life sentence," he said. "This will inspire lawyers to take on the system. Now that the law has been applied once, it can be applied again."

However, any release under the law is not unconditional. Federal penal procedure law states that when the convict is released, he or she have to repay the remainder left of the penalty in monthly installments to the public prosecution in a period of 24 months. "If the person fails to pay the monthly amount, the public prosecution has the right to have him arrested and charge him once again, but he has that right to these two years," Dr al Awlaky said.

The Dubai advocate general Khalifa bin Deemas, the head of the attorney general's technical office, did not respond to interview requests to discuss the issue. Mr al Tunaiji was unavailable for comment. A source from the Dubai police punitive and correctional facilities establishment said that 13 prisoners are currently awaiting the completion of their sentences involving financial crimes. The source, who spoke on condition of anonymity, said three prisoners have been sentenced in criminal court and the rest in the court of misdemeanours.

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