Can UAE Loan defaulters be arrested in India?

The answer is Yes, and No. Extradition is an integrated issue. Although the process has been simplified due to several international treaties, the main task of nations finding a way to reconcile two territories and resolve extradition issues, it is past developing legal framework, which is evident from the latest international treaties signed by UAE with neighboring nations for resolving extradition matter.

What is Extradition in UAE?

Extradition is the procedure to return a fugitive to the state where he or she committed a crime, escaped from incarceration, or violated probation and parole via a formal demand sent by one nation to another through diplomatic routes, for the latter to surrender the person who has committed the offence in the requesting country to their authorities.

In cases of Extradition, UAE is very proactive, and all the relevant authorities are familiar with the concept of extradition and assist other nations in such criminal offences, as explained by Lawyers in Dubai. The country, every year receive and send several requests for extradition and accordingly the country has signed several extradition treaties with its neighboring countries.

Any request generated in UAE for extradition is drafted and forwarded by the International Co-operation Department of the Public Prosecution. The Federal Law Number 39 of 2006 concerning Mutual Judicial Co-operation in Criminal Matters sets out conditions for the request of extradition submitted by other countries and the concerned department must review the request in such manner.

• The UAE has deployed since 2006 a specific Federal Law known as Federal Law no. 39 of 2006 on Mutual Judicial Co-operation in Criminal Matters.
  
• This law permits the UAE authorities only to hear the formal procedures and conditions of the extradition request regardless of the nature of the crime.
  
• The UAE is a signatory party to the Riyadh Arab Convention on Judicial Co-operation in 1983, which was signed by most other Arab countries including Algeria, Bahrain, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Qatar, Saudi Arabia and Tunisia.
  
• The UAE is also a signatory party to many bilateral treaties signed and ratified for judicial co-operation such as agreements with Australia, China, Egypt, France, India, Iran, Pakistan, Spain, the United Kingdom and Republic of Kazakhstan.
  
• The UAE has set up a judicial mechanism made up of five stages enabling the person requested for extradition to challenge the extradition process as follows:
  • The Local Interpol Authorities in the UAE
  • The Public Prosecution heading the International Judicial Matters
  • The Court of Appeal
  • The Cassation Court
  • The Ministry of Justice & The Ministry of Interior
    
• Article 7 of the Federal Law no. 39 of 2006 on Mutual Judicial Co-operation in Criminal Matters states the conditions that need to be fulfilled in order to qualify for accepting extradition.
  
• Article 9 of the same law states the legal obstacles that will lead to non-extradition.

Upon receiving the request, the competent authority entertains the matter in order to decide whether the request fulfil the conditions mentioned in the law and accordingly either accept or reject the request. A wide number of cases are tried by UAE courts on extradition every year, and thus, they are bound to oblige with the international treaties. However, if the country has not signed the bilateral treaty, it must rely on the relevant law.

India-UAE Judicial Collaboration

On 17 January 2020, the Ministry of Law and Justice (Department of Legal Affairs) of India issued a notification declaring the United Arab Emirates (the “UAE“) to be a “reciprocating territory” under Section 44A of the Indian Code of Civil Procedure 1908 (the “CPC“) (the “Notification“).

The Notification was officially published in the Indian Gazette on 18 January 2020.

1. The 1999 Judicial Cooperation Agreement

In October 1999, India and the UAE entered into the Agreement on Juridical and Judicial Cooperation in Civil and Commercial Matters for the Service of Summons, Judicial Documents, Commissions, Execution of Judgements and Arbitral Awards (the “1999 Agreement“). The purpose of the 1999 Agreement was, among other things, to ensure reciprocity of judgments rendered in the courts of the UAE or India.

The 1999 Agreement was ratified by both states and came into force in the UAE in 2000, pursuant to Federal Decree No. 33 of 2000.

2. Notification under CPC Section 44A 20 years in the making

However, it was not until 18 January 2020 that a judgment of the UAE courts could be enforced in India in a manner consistent with the 1999 Agreement. This is because the UAE needed to be formally recognized as a “reciprocating territory” under Section 44A of the CPC, which provides:

(1) where a certified copy of decree of any of the Superior Courts of any reciprocating territory has been filled in a District Court, the decree may be executed in India as if it has been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such Superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

Reciprocating Country as per extradition terms

Reciprocating territory is defined by Section 44A, Explanation I as:

“…any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section, and “Superior Courts”, with reference to any such territory, means such courts as may be specified in the said notification”.

It was not until 18 January 2020, some 20 years after the 1999 Agreement, that the required notification in the Official Gazette was given. Prior to that date, all UAE court judgments were deemed “non-reciprocating”. This meant that judgment creditors had to file fresh civil proceedings in the Indian courts, seeking to convert the UAE judgment into a new Indian judgment, which could then be enforced against the judgment debtor’s Indian assets.

Application and scope of Extradition

Application of extradition notification

The consequence of the Notification is that most civil judgments issued by the UAE courts are now directly enforceable in the Indian courts (i.e. as if it judgment had been delivered by the Indian court). The most notable exceptions are judgments relating to taxation or charges of an administrative nature (such as fines or penalties). The Notification also does not apply to judgments from the UAE criminal courts.

Given that the Notification appears to ratify the 1999 Agreement, it is expected that the Notification will have retroactive effect. Therefore, all applicable judgments delivered prior to the date of the Notification are potentially caught by its remit. However, this is subject to clarification by the Ministry of Law and Justice.

There is also no guidance as to how the enforcement process will work in practice. It is likely that such guidance will be provided after a number of test cases have concluded.

Scope of extradition notification

The Notification applies to judgments of the “superior courts” of the UAE. These have been identified as:

• the UAE Federal Supreme Court;
• all Federal, First Instance and Appeals Courts in the Emirates of Abu Dhabi, Sharjah, Ajman, Umm Al Quwain and Fujairah;
• the Abu Dhabi Judicial Department;
• the Dubai Courts;
• the Ras Al Khaimah Judicial Department;
• the ADGM Courts; and
• the DIFC Courts.

Prerequisites for Extradition

Article 7 of the Federal Law no. 39 of 2006 on Mutual Judicial Co-operation in Criminal Matters states the following conditions that need to be fulfilled in order to qualify for accepting extradition:

The crime for which the surrender is requested must be penalized by the Law of the requesting State to an imprisonment of at least one year or any other greater penalty.

1. The act for which the surrender is requested must constitute; in the territories of the State, a crime penalized by an imprisonment of at least one year or any other greater penalty.

2. If the matter subject of extradition pertains to execution of a custodial penalty, the remaining unexecuted penalty shall be no less than six months.

3. If the act subject of extradition constitutes a punishable crime under the laws of the Requesting Country and UAE, it is irrelevant if the crime is listed under a different name or description or if the elements of the crime are different.

Refusal of Extradition

As per the Article 65 of the Federal no.39 of 2006 there are some instances where an extradition request shall be refused in the UAE. These include following:

1. If the response to the request is against the State sovereignty, security or public order.
2. If the crime for which he is convicted is a military crime.
3. If the regulation for the service of penalty at the requesting State differs from its counterpart in the State.
4. If the requesting State does not commit itself to the non – enforcement of its provisions of private amnesty on the convicted

Recent Developments

In 2011, UAE and India signed an agreement for Transfer of Sentenced Prisoner for social reformation of individuals convicted in different countries. This agreement will allow the accused sentenced in other countries to spend their imprisonment in their native country. However, the concerned agreement is not applicable on heinous offences like murder, drug abuse, financial frauds, etc. There are several conditions which need to be fulfilled prior to transferring the prisoner as follows:

• A minimum of 6 months imprisonment should be pending;
• The prisoner must be convicted and should not be under trial;
• There should not be any other case pending before any court;
• Both the countries must confirm his request to transfer.

The signing countries must honor the collaboration, even in cases where the request for extradition was not accepted. As due to several political reasons, the request for extradition is rejected. In such circumstances, even though an accused cannot be extradited due to political or public reasons, he can be tried under Judicial Cooperation in Civil and Commercial matters Agreement signed by both the countries in 1993. Such treaties strengthen the criminal laws of both the countries and simultaneously threat the wrongdoers who think that they can exit the country post committing an offence.