x Abu Dhabi, UAEWednesday 26 July 2017

Verbal-abuse cases can be exploited by false accusations

Court cases over verbal abuse claims have so many inherent problems and so much potential for abuse that the whole process demands to be re-thought.

A 22-year-old Tunisian journalist was on her way from Abu Dhabi to Dubai when, by her account, a man started driving too close behind her. He overtook her and then downshifted to force her to stop. He drove away only when she started typing his car's licence plate numbers into her mobile phone.

A few days later, she received a phone call from the police telling her she had been accused of making an obscene gesture. The man, an army officer from Fujairah, had filed a complaint at the nearest police station. The woman was later sentenced to six months in jail. On appeal, she was given a suspended sentence - but only after spending a month in jail and consequently losing her job.

As a courts and justice reporter in Abu Dhabi, I spoke to lawyers and judges who almost all emphasised the need to rethink the prosecution of verbal-abuse cases.

Not only do these cases drain the courts' time and resources, but they are also often open to abuse. It is remarkably easy to find a defendant guilty in these cases, and the effect of a conviction can have serious consequences for a person's liberty, mental well-being and career.

Although UAE law requires a witness or a confession along with criminal intent, in practice these cases often hinge on who files a complaint first. The legal criteria for a witness can be overlooked and the criminal intent is presumed. In this case, the man's colleague, who was travelling with him in the car, was the witness, which is legally invalid. But the witness's testimony was challenged only at the appeals court.

In another case, in which the plaintiff did not have a witness, the defendant apologised, thinking that the apology would resolve the matter, and police took the apology to the plaintiff as a confession of guilt. The defendant was sentenced to one month in prison and fined Dh15,000.

Once at the Abu Dhabi Judicial Department I overheard an old man asking lawyers if they could arrange a "witness" to falsely testify that another person had insulted him. It is not an uncommon practice to seek such witnesses. Judges recognise this, but they have little leeway if testimony is presented in the court papers.

Because convictions are relatively easy, people tend to file such cases to support claims in civil or family courts (to win damages for divorce, for example). It is common for spouses to file such cases before they file for divorce. Comprehensive statistics are not available for the country, but the majority of 207 family court cases in the first half of last year in Dubai involved verbal abuse.

In the UAE and the region at large, insulting someone's honour by accusing them, for example, of sexual indecency can cause immense harm to the person and his or her family. But there are no clear-cut criteria to establish the circumstances of the case and the grounds of the accusation; a case often has to reach the high courts to be fully examined.

A woman was convicted in 2009 for telling a lawyer during a dispute: "Go away, you animal! You are impolite." After she was convicted, the lawyer used the criminal conviction to sue her for wasting his time at the police station and courts. He argued that he had lost Dh500,000 in potential earnings. In effect, he sued her again for the time he had spent suing her in the first place.

Judges at the Court of First Instance and the Court of Appeal accepted his argument and ordered her to pay Dh70,000 in damages. It was only two years later that a high court noted that judges at the two lower criminal courts as well as at the lower civil courts had ignored her original testimony that he had harassed her. Because the lawyer filed the complaint and had a witness, her testimony was ignored. The Supreme Court ordered a retrial but the harm had already been done.

Verbal abuse is a criminal offence in both UAE and Sharia law, but the purpose of the law is to punish verbal abuse that causes real harm. In the UAE and across the region, accusing a person of committing an immoral act (legally known as qathf) can severely tarnish that person's reputation in the community. The same is true for describing a person as someone who would commit such acts, such as a "liar" or "swindler" (known as sabb).

As one Supreme Court magistrate has said, judges must evaluate the seriousness of a verbal abuse accusation depending on the situation. In the army officer's case, for example, judges should have considered that the officer was not on duty, that the alleged incident took place on the road and that she would not have known that he was an officer - not to mention that his witness was ineligible to testify.

Any reform to the prosecution of verbal abuse cases must begin at the level of the police and then at the Public Prosecution. Once the charge is filed, judges are not always able establish the context that is essential to understanding the case.



On Twitter: @hhassan140