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Letters Rogatory

 

A Letter rogatory is an instrument drawn by an investigating judge and transmitted to another judge, or an officer of the judicial police, requesting their assistance in carrying out an investigation process on his behalf. Letters rogatory is known as a procedure carried out by an officer of the judicial police to execute a judicial request forwarded by a judicial authority requesting to perform an investigative or court  proceedings or serve a process that the judicial authority could not execute because of time or distance constraints or the urgency of the procedure, such as interrogation or examination of a specific witness who is  in a threatful or a vulnerable situation, or undertaking an inspection, search or  confiscation.

Therefore, a letter rogatory is legal process by which an investigating judge requests from another judge or a judicial officer to undertake necessary investigation process within their jurisdictions.

The terms "Letter Rogatory", "Delegation" and "Subrogation" are synonymous in actual practice and jurisdiction. The Egyptian legislature uses the three terms alternately, since both delegation and subrogation are considered as an exceptional way of undertaking jobs responsibilities. Moreover, in the three cases the duties are performed by a third party.

 

In view of its importance, the letter rogatory is regulated by some formalities, inter alia, it should be drafted in writing, dated, signed and sealed by the judge undertaking the investigation. Letter rogatory shall also bear the name of the judge conducting the investigation, provide brief synopsis of the crime to which the investigation relates and indicate the name of the accused or be directed against an "unknown" where the accused is an unknown person.

 

The letter rogatory is regulated " by some substantive conditions: First: Being part of the investigation process, it should be issued by a judge in charge of an investigation. Second: A letter rogatory can be addressed to another investigation judge, to a judge court of first instance or to officers in the judicial police. Whereas, an investigation judge is requested to undertake a certain function, by virtue of a letter rogatory issued by another investigation judge, a second a letter rogatory could be addressed to a judicial police officer. However, judicial police officers are not entitled to delegate other police officers to undertake their duties on their behalf.

In general, are drafted in three forms:

First: Limited letters rogatory: The judge carrying out an investigation specifies the required functions to be undertaken. In that case, the delegated party shall strictly adhere to the content of the letter rogatory, such as, the examination of a specific witness or the inspection of a specific home.

Second: General letters rogatory: The judge carrying out an investigation do not specify the requested function, but rather leaves the door open. The judge can request listening to all witness or undertake all action that could help the investigation. In this type of letter rogatory, the judicial police officers are empowered by wide authority but limited to a specific case.

Third: International letters rogatory: where the two countries are bound by a judicial treaty or executive agreement, the judges of the two countries can delegate each other to undertake the investigation process, provided that the request is transmitted through the diplomatic channels (Ministry of Foreign Affairs). The judicial process undertaken by a letter rogatory shall have the same legal power as if undertaken by the judicial authority in the sending state. Letters rogatory are considered as an important manifestation of international cooperation between judicial authorities. Each country endeavors to organize its procedures regulating or related to letters rogatory with the objective of the consolidation of justice in the country, the safeguard of its independence and reinforcement of its territorial sovereignty. Letters rogatory is gaining increasing importance in international relations as a result of the widespread development in the fields of communication, the freedom of movement of persons and goods and the interlacing interests and complexity of different aspects of international relations. All aspects of life are characterized nowadays by globalization. This resulted in an increase of criminal practices, the surge of transnational crimes of terrorism, drug trafficking, money laundering and human trafficking. Crime organizers and perpetrators take advantage of the facilities provided by modern developments in the fields of transport, communications and information. Consequently, judges are facing increasing challenges. The violation of countries' sovereignty constitutes an obstacle for the realization of the criminal justice, as countries do not always have the same legal concepts or criminal and procedural rules. Nevertheless, letters rogatory enable an investigative authority in a country to use the investigative process in another country. This process is considered as one of the most important features of the international cooperation. It allows a country to conclude the investigations in its own national cases, when such a process is rendered unachievable for its judicial authorities while the witness to be examined or the required evidence are beyond its territorial borders or in the hands of foreign authorities. Therefore, countries resorted to include some articles in their national legislations to regulate the international judicial cooperation. Bilateral agreements to regulate such judicial cooperation are concluded for this purpose.

The United Arab Emirates is a federal state. Law No. 11 of 1973 was promulgated to regulate the judicial relations between the seven emirates. This Law provides in article 5 that "any of the member emirates may request from another member emirate to undertake on its territory and on its behalf a judicial process related to a case under consideration ".

Article 6 of the same Law provides for the procedure to be followed. The judicial authority in one emirate shall communicate its requests of letters rogatory to the judicial authority in another emirate. The latter is required to execute the request in accordance with its laws and procedural rules. Whereas the requesting party wishes for its request to be answered differently, this demand shall be considered as long as it does no contradict with the local legislations in force. The Law provides for the requesting judicial authority to be informed on the place and time of the implementation to enable a party or his legal representatives to be present. Whereas the subject matter of  relates to a subject or a procedure considered illegal under the law of the requested emirate, or if the execution of the request proved impossible, in both cases the requesting judicial authority shall be notified thereon supported by the necessary explanation.

 

Coercion

The term "coercion" is derived from the verb "coerce" and is defined as an  action or practice of persuading someone to do something by using force or threats. It is the compulsion of others to do something unwillingly, which they may not do, if they opt to. In legal text, coercion is a pressure against the will of others. The UAE legislator stipulates in articles 176 and 177 of the Civil Transactions Law No. 5 of 1985, the meaning of coercion as follows, "Duress is coercion of a person unrightfully to perform an act without his consent. Duress may be forcible or non-forcible and may be material or moral. Duress is forcible (full and utter) if it involves threat of causing grave and imminent danger to person or property; and it is non-forcible (minor and partial)  if it involves a lesser threat.

 

Based on the previous definition; coercion is divided to material (physical) coercion and moral coercion.

 

The material coercion is to compel a person to conclude an action or to perform something under a material force that he cannot resist or avoid, so he loses his will, power and freedom to choose, and becomes a controlled machine, e.g. holding someone's thumb and compelling him to affix his fingerprint on a an instrument indicating his acknowledgement of a certain obligation.

 

The material coercion is deemed as a state of human force majeure. Thus, a physical coercion results in a consent taken forcibly and fearfully. A physical coercion may occur due to an internal reason, e.g. an accident caused by a driver for losing his power to control the car after getting a sudden paralysis.

 

The moral coercion is a threat directed from a person to another by any means, causing him a state of fear and panic that obligates him to acknowledge acceptance of something he would not willingly accept. Hence, the difference between physical coercion and moral coercion is that the first case involves  paralyzed and blind will, as if it does not exist at all; while in the second case the will is existing, but it is defected and partial.

 

The moral coercion has two aspects: external and internal. The external coercion is caused by an outside source including the presence of someone who threatens another to urge him to work; the internal coercion is caused by one's emotions, beliefs, doubts and convictions.

 

Laws coincide to identify a number of general conditions that frame coercion, including: a threat of grave imminent danger, and the threat to use physical means e.g. weapons that would make someone imagine the presence of a real threat and a grave imminent danger to himself, his body or property, or to someone important and dear to him. Thus, the threat to beat and abuse someone  or to assault his dignity is deemed as a state of de facto coercion if exercised against the person himself, or against his relative (son, brother, wife or any other person with whom he has an intimate relationship) i.e. relations extend to include blood relatives, kinships and friendships. Besides, such threat may be directed against one's property, such as threats of burning a house, or damaging a crop.

 

Additionally, a threat must be imminent, so if there is a time frame between a threat and the possibility of danger occurrence, the threatened person would have taken the necessary precautions to prevent this danger. Again, the means of threat must be illegal, so if the means of threat was legal, there would be no threat to defect the person's will. Accordingly, any threat by a creditor against his debtor to attach or seize his money, in case of default, would not be deemed a coercion, noting that coercion infers a person's incapacity to prevent duress or avoid dander by any means.

 

All legislative provisions related to coercion and necessity, despite different expressions and terms, stipulate that no punishment will be imposed on anyone commits a crime under these circumstances, being defined as "the effects of coercion". In other words, such effects are the implications resulted from coercion, be material or moral. In this regards, the Islamic jurisprudence was a pioneer in this area, so all Islamic sects urge to release any threated person from his crime, be it felony, misdemeanor, or violation.

 

The UAE legislations, in line with the Islamic jurisprudence, repeal any act performed under the influence of coercion, as such act is made against a person's will. In most criminal legislations, coercion is deemed as a kind of necessity, so the person under coercion may claim any compensation for the damages he incurred as a result of coercion, pursuant to the rules of tort, based on the principle that "every error causes harm to others would require the payment of compensation by the defaulting party".

 

In the UAE law, coercion would defect any concluded contract, i.e. any contract would be deemed invalid of concluded under coercion, as stipulated in Article 182 of the Civil Transactions Law: "A person who is under either kind of duress to conclude a contract may not enforce his contract, but the contract will be valid if the victim or his heirs so permit after the threat has ceased, either expressly or by their acts". At any rate, coercion must be proved first before invalidating the resulting inaction. Personal evidences (testimony) and clues, including declaration and assertive oath, may be used to verify the occurrence of coercion; and the burden of proof rests with the person who claims the occurrence of coercion.

 

The second paragraph of Article 64 of the UAE Penal Code No. 3 of 1987 regulates the legal implications of coercion, so it reads "a person shall not be criminally responsible if he commits a crime acting under constraint for protection of himself or his property or the person or property of a third party from serious imminent danger whose occurrence is beyond his own will. Whoever acts under constraint to commit a crime because of material or moral coercion shall not be criminally responsible".

 

Bankruptcy

The term "bankruptcy" is when the company proclaims its bankruptcy and loss and declares its trade failure. Bankruptcy is a status resulting from the trader's inability to pay its debts anymore, and it also generally means the fiscal deficit. The term "bankruptcy of the state" means: when the state ceases to pay credit bonds. Moreover, bankruptcy is defined when the judiciary adjudicates that a natural person or a juridical person is unable to pay its debts.

  

In law, bankruptcy means: a method of enforcement on the money of the debtor trader when unable to pay its trade debts. This enforcement shall be intended to revive credit and boost confidence in trade transactions through a series of proceedings and rules aiming at protecting and safeguarding interests and rights of creditors.

 

The legal regulation of bankruptcy shall be based on a number of principles:

 The First Principle: is the protection of creditors and enabling them to obtain their rights, or to the extent possible, and on equal footing amongst them. And since the trader may deliberately dispose of its assets when sensing its inability to pay its debts, hence it is logical that the legal legislator shall involve in the issuance of the bankruptcy judgment preventing the debtor from disposing of its assets. On the other hand, and as creditors are protected from the acts of the bankrupt debtor by preventing its disposal of its assets' administration, creditors must be protected as well from each other through implementing the principle of equality amongst them and preventing them from ranking to obtain unusual benefits when the debtor's business becomes troubled.

 The Second Principle: of the legal regulation of bankruptcy is balancing between conflicting interests. In the event that a conflict between the interests of the bankrupt debtor and creditors is found, the legislator shall prevent the debtor from administering its assets and hand them over to the official receiver as a prelude to their liquidation. Concurrently, the legislator allows the bankrupt debtor a sum to spend on him/herself and his/her family. The conflict of interests, regulated by the legislator, shall extend to the creditors themselves; as interests of ordinary creditors shall conflict with those of creditors of private insurance. Furthermore, interests of creditors before proclamation of bankruptcy shall conflict with such creditors whose rights have arisen after proclamation of bankruptcy.

 The Third Principle: of the legal regulation of bankruptcy is that the bankruptcy is a system of collective liquidation; hence no creditor shall initiate any individual actions for the enforcement on the debtor's assets, instead, the liquidation and enforcement proceedings shall be collective and undertaken by the official receiver on behalf of all debtors.

 

There are several characteristics of the bankruptcy system defined by different laws:

The First Characteristic: is that it is a system only and solely for traders. The trader is every person, whether an individual or a company regularly, periodically, and professionally practicing business for the purpose of earning a living.

The Second Characteristic: is that bankruptcy shall only be pursuant to a judicial proceeding; as proclaiming the debtor's bankruptcy shall only be under an adjudication of bankruptcy to halt payment.

The Third Characteristic: is that bankruptcy is a collective action: meaning that the debtor's inability to pay its business debts shall not only damnify interests of creditors, but shall also be prejudicial to the public interest because it defects the traders' community. Consequently, the legislator shall deem bankruptcy with negligence and bankruptcy by fraud an offence in which the debtor's bankruptcy is associated with minor to major errors.

The Fourth Characteristic: is that the bankruptcy simplifies and accelerates proceedings in an attempt to reach conclusion thereof as soon as possible. This is achieved through expediting challenge hearing dates and including the bankruptcy judgments for expedited enforcement.

The Fifth Characteristic: is that most judgments of bankruptcy are public order rules due to their relevance to boosting credit- resulting in that they- and without the need for a special text- govern unstable repercussions arising at the time of their enforcement, even if arising from precedent legal centers; enforcing their immediate repercussion.

 

It is noteworthy that there is a correlation between the term "bankruptcy" and the term "insolvency"; as insolvency is a system for non-trader civilians, and presumably the debtor's assets are insufficient to pay its due debts. Insolvency is mostly differentiated from bankruptcy for not being a type of collective liquidation of the insolvent debtor's assets; because proclamation of insolvency shall not entail preventing creditors from initiating individual actions against the debtor.

 

The Emirati public has been greatly concerned with the issue of bankruptcy due to its impact on a large segment of the society. This concern stems out from them being traders in their natural and legal capacity, and its impact on the national economy. In this context, the explanatory note of the Emirati Commercial Transactions No. 18 of 1993 considered that the trader who ceases to pay its trade debts on due date shall be deemed in bankruptcy status. The note considered this actual cease equal with the trader who, to pay its debts, uses illegal or unusual means representing its financial deficit.

 

The aforementioned UAE law also set conditions for the proclamation of bankruptcy which are as follows: the bankrupt debtor shall be a trader, and shall halt payment as a result of its financial instability shaken credit. The debts that the bankrupt trader ceased to pay shall be business- related, non-disputed and payable. In the event that such conditions are fulfilled, the chairman of the department adjudicating the bankruptcy proclamation shall assign a bankruptcy judge who shall oversee the bankruptcy proceedings and shall assign one or more official receivers to administer the same. 

 

The Emirati legislator was dedicated to the preparation of a new draft law for bankruptcy and insolvency which is still under review for approval. This law shall include provisions concerning accelerating determination of proceedings in order to alleviate burdens required to apply for composition which permits the debtor to restructure its business under a scheme of composition of bankruptcy with its creditors, under the oversight of the concerned entity.

 

In addition, the new draft law shall endeavor to create an ideal investment environment that ensures the protection of the rights of the parties according to deliberate mechanisms. The new draft law shall permit the debtor to reorganize the debt and borrow again on soft terms. It shall also protect the debtor from criminal prosecution, and shall deny the criminal capacity off of the financial obligations of the insolvent person.

Moreover, the cited draft law shall contribute in maintaining the vitality of the financial sector; through the solutions it provides for debtors facing insolvency or approaching the brink of bankruptcy, which, consequently, will enhance the banks' confidence in the domestic market and the performance of its clients.

 

Conditional Release ( Parole )

 

 The Conditional Release (Parole) is known as " the release of a convict from a custodial punishment before the completion of the sentence period, subject to the fulfillment of some restrictive conditions and obligations." In other words, the conditional release is " a method used by developed penal systems to limit the disadvantages of long term imprisonment terms in penal institutions which could adversely impact the rehabilitation and correction of the prisoner ". Under this widespread system, a convict is released prior to the completion of the term to which he has been sentenced. Where the behavior of the released convict turned to be unacceptable or if he contravenes the imposed obligations, the release on parole is revoked and the return of the parolee to the penitentiary establishment, to serve the remaining period of his sentence, is then imposed. The conditional release lapses at the end of its term and becomes a final release, or otherwise the conditional release is revoked and the parolee is taken back to the penitentiary establishment.

Historically, the conditional release was initiated in 1790 in France when "Mirabeau" tabled a report to the French National Assembly demanding the introduction of the release on parole in the French Penal Code as one of the methods of reform of the penitentiary establishments. In 1874, the renowned judge "Bonneville de Marsanganyb" led by a wide campaign to promote the conditional release. The campaign continued until the French National Assembly adopted the system of release on parole in 1885.

Other countries followed successively and introduced the conditional release in their legislations. It was adopted by England in 1850 and by Saxony in 1862. It was stipulated in the  German Penal Code (Article 26) and in the Italian Penal Code (Articles 176 and 177). The conditional release was introduced in Egypt by the Decree of 23 December 1897. Articles 44 and 47 of the UAE Federal Law No. 43 of 1992 on the organization of the penitentiary establishments provided for the conditional release. The Federal Penal Procedure Law no. 35 of 1992 stipulates in Article 302 that:    

"A person sentenced by a custodial penalty person may be released if he meets the conditions provided in the law of the penitentiary establishments. During the remaining period of his sentence, the released person shall be subject to the conditions stipulated in the mentioned law. The conditional release may be annulled, upon request by the General Prosecution, where the released person breaches the conditions mentioned in the above paragraph."

 In fact, the conditional release is not meant to be a termination of a sentence, but it's rather one of the penal methods or one of the methods of penalty enforcement. It is therefore a modification in the method of penalty implementation. Consequently, a punishment does not elapse before the end of the custodial term. Likewise, the conditional release is not a final release because it could be revoked. Similarly, the conditional release cannot turn into a final release unless it runs to its term without being revoked. Furthermore, the conditional release is not an acquired  right and a convict is not warranted to  claim a conditional release. Likewise, the consent of the convict is not a condition to grant a release on parole.

 

Most countries provide for the conditional release in their legislations in view of its advantages, amongst which: Hoping to take advantages of a release on parole, the convict is encouraged to observe good conduct during the custodial sentence period. The conditional release is also helpful in the social rehabilitation of a convict: Firstly: It involves supervisory measures, assistance and obligations imposed on the parolee.  Secondly: It guarantees a gradual advance in the correctional  process of the convict. It also impacts the reform of the convict beyond the penal establishment, in preparation for his final release and full integration in the society .

 

The UAE lawmaker prescribes certain substantive and procedural requirements for  the conditional release. The substantive  conditions are categorized in two sections :

 

  1. Conditions related to the term of imprisonment.
  2. Conditions related to the convict.

The conditions related to the term of imprisonment:

First – The conditional release is applied on all custodial sentences regardless of the nature of the crime.

Second- The conditional release is not  applied on precautionary measures.

Third-  The convict must have already served at least three quarters of the term to which he has been sentenced. Where a convict is serving life imprisonment, he may be released form the institution after having served at least twenty years. However, a convict may be granted a conditional release after having served at least fifteen years of imprisonment.

The conditions related to the convict are the following: The conduct of the convict becomes a reason to believe that the convict  is  appropriately  rehabilitated, otherwise his release on parole is considered a risk for the public security.

As for the procedural conditions for conditional release, the UAE Law assigns the discretion of granting conditional release to the administrative authority in some cases. In other cases this power is assigned to the judicial authority. In this respect, the UAE lawmaker endeavors to resolve the existing legal controversy. There are contradictory views adopted by legislations and researchers on the conformity of the conditional release from legal and punitive standpoints. One point of view considers the release on parole an administrative function arguing that it's only a modification of the sentence adjusted to suit the positive evolution of a convict's character. In this respect, it is argued that this action is comparable to an administrative function exercised by the penal administration in regard to the implementation of the penalty. Another point of view claims that this function is a judiciary action because it implicates prejudice to the executive power of the sentence since the pronounced term of imprisonment is modified by the conditional release.

 

Assignment of Obligation

The term "Assignment of Obligation" means to replace either contracting party of an obligation (creditor or debtor) by another, or to assign the legal bond between the creditor and the debtor to other people. In other words, it is to shift the obligation including all its components, warranties, and qualities from one contracting party to another person, referred to as "assignee".

There are two types of "Assignment of Obligation":

The first type is: "Assignment of Right", which is the transfer of the assignor's right by agreement from the original creditor (the "assignor") to a new creditor (the "assignee"). The assignment of right involves any personal rights whatsoever, of any nature or character, including transfer by way of security, deferred added benefits, conditional rights, and civil and commercial rights. The assignment of right is subject to certain requirements including the consent of the assignee and the assignor, regardless of the obligor's approval, since such change will not cause any extra burdens on him.

The assignment of rights requires a legitimate reason and might be made in lieu of consideration (sale), or without consideration (grant). By assignment, the assignor may tend to settle some debt due to the assignee, so the value of the transferred right will be deducted from his debt. Besides, such assignment requires the debtor's explicit or implicit approval, and such approval will be given at the same time of the assignment or thereafter. His approval may not be given previously, even if the debtor certifies, on the debt bond, his prior approval of right assignment to others. Hence, the purpose is to inform the debtor of the assignment of right, followed by his subsequent approval. The debtor's approval shall be limited to his acknowledgement of assignment without having a declaration from him about the assigned debt. Other conditions for assignment of right include that the debtor must be officially notified, by an official instrument served to him, at the request of the assignor or assignee.

In fact, the assignment of right has a prominent importance and various benefits. The assignor (creditor) may wish to make a lien on his rights to the assignee (the new obligee) especially if his rights were deferred and was in need of cash money but does not want to sell his right. The assignment of right is permissible under the four sects of Islam but its subject is not unanimously agreed upon. For example, some approve assignment of gold and money, but prohibits assignment of food.

The second type tupe is:  "The assignment of debt"; in other words, it is the assignment of the burden of debt, by agreement, from the original debtor "assignor" to a new debtor "assignee". In other words, it is an agreement under which the debt is assigned from one debtor to another who will be fully responsible for the whole debt. As per the definition above, the assignment of debt entails three parties: the assignor (original debtor), the assignee (obligor) and the obligee (creditor). The assignment of debt has two kinds: restricted assignment and absolute assignment. The restricted assignment involves repayment from the assignor's funds owed to him from the assignee, while the absolute assignment is to settle money from the assignee's funds.

The assignment of debt results in the transfer of the same debt including all its installments and warranties to the new debtor, i.e. the original debtor will be released from any commitment towards the creditor, as the obligor will subrogate the debtor. The original debtor's release will be pending on the condition that the creditor will retrieve his right, otherwise he may revert to the assignor.

The assignment of debt may be made by an agreement concluded between the original debtor and the new debtor to whom the debt was assigned, or directly  between the creditor and the assignee. According to law, the assignment of debt requires an existing object that meets certain legal conditions, which is here the assigned debt. Besides, the new legislation does not require the debt to be realized, i.e. the assigned debt might be a debt due now or in the future; a deferred benefit or a conditional debt; or a civil or commercial debt with or without an interest. The agreement for assignment of debt, concluded between the original debtor and the new debtor, should be made by fully competent and capacitated persons without any coercion, deception, or illusion. Additionally, there should be a reason for this assignment,  e.g. the assignee may intend to borrow the amount of debt to the debtor or otherwise he may wish to settle a debt owed by him to the debtor.

It should be noted that the legislature does not approve the "assignment of right", due to lack on unanimous agreement thereon by sharia scholars. However, the assignment of debt is approved and regulated under the Federal Civil Transaction Act. Such failure to regulate the assignment of right might be deemed as a legislative hindrance against this action in the UAE; however, some believe that the UAE legislature has implicitly approved the "assignment of right". Despite the lack of legislative regulation on this area, but the action is till applicable under the agreement of parties. The legislature has cited some articles that are applied only to the "assignment of right" in particular Article 1130 and Article 1131 of the Federal Civil Transactions Act.  The said Article reads as follows: "If there are several assignments in  respect of one right the first assignment shall take priority and be effective with regard to third party rights'…. An assignment shall not be effective with regard to third parties unless official notice thereof is given to the assignee or is accepted by him by a document of certain date". Accordingly,  this article does not apply to the "assignment of debt", so implementation of right assignment must be accepted.

 

 

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