Abu Dhabi: The Judicial Inspection Division of the Abu Dhabi Judicial Department (ADJD) organised in cooperation with the Abu Dhabi Judicial Academy (ADJA), a remote workshop to discuss the provisions adopted for cases of issuance of cheques without sufficient existing and withdrawable balance (NSF cheques) in accordance with Federal Decree Law No. 14 of 2020 which amends some provisions of the Commercial Transactions Law promulgated by Federal Law No. 18 of 1993; A total of 140 people from Abu Dhabi criminal courts and Public Prosecution offices attended the event.
The participants agreed to submit a recommendation to the Supreme Judicial Council to harmonise the views in order to comply with the wish of the legislator to postpone the entry into force of all the provisions of the law until the second of January 2022, whether they concern the decriminalisation of the NSF cheque or the alternative mechanism for consolidating the cheque and giving it the power of a writ of execution so as to allowthe immediate encashment thereof without the need for judicial proceedings.
The participants explained that the principle of “most favourable law for the accused” does not apply to the said new amendments. The said principle allows the court to apply the law that is in the interest of the accused immediately after its enactment without waiting for the date of its entry into force as specified in the text of the law. The fact is that the legislator has provided in Article 4 of the Decree; for a transitional stage of more than a year, with the aim of protecting the rights of all parties and preserving the public interest.
For its part, the Judicial Academy explained that the workshop was organised in implementation of the directives of His Highness Sheikh Mansour bin Zayed Al Nahyan, Deputy Prime Minister, Minister of Presidential Affairs and President of the Abu Dhabi Judicial Department, who insists on enriching judicial thinking and improving performance by organising specialised workshops and seminars for members of the judiciary and officers of the court. The workshop is also part of the Academy’s work plan which was approved by His Excellency Yousef Saeed Al Abri, Undersecretary of the Judicial Department of Abu Dhabi, and which includes discussion workshops and training courses for judges.
In the opening speech of the workshop, Judge Mansour Al-Marzouqi, President of the Abu Dhabi Criminal Court, who chaired the workshop, welcomed the participants and explained that the meeting aims to keep pace with the legislative developments arising from the provisions of Federal Decree Law No. 14 of 2020 amending certain provisions of the Commercial Transactions Law promulgated by Federal Law No. 18 of 1993, and thus to define the problems currently raised in the field of litigation relating to the criminalising provisions and the alternatives to punishment provided by the aforementioned decree, in particular the enforceability of the rule of the “most favourable law for the accused” with regard to the decriminalisation of bounced cheques.
Judge Al-Marzouqi added that the newly introduced amendments are seen as one of the most important steps towards upgrading the country’s legislative and judicial structure in a way that builds confidence in the business environment and contributes to its sustainability, development and leadership. He explained that the decree introduced many changes, including the decriminalization contained in the Penal Code with regard to the issuance of uncovered cheques, in addition to the adoption of a number of mechanisms to facilitate litigation procedures and avoid the accumulation of cheque-related cases before the Public Prosecutor’s Office and the civil and criminal courts. This should help, he said, to reduce the waste of effort and money, both for the holder of the cheque through the costs incurred and the duration of litigation, and for the public treasury by ensuring the efforts of the security and judicial services to deal with these issues.
Mechanisms in place
Al-Marzouqi also detailed the mechanisms put in place by the new decree to ensure the collection of the value of the cheque, in particular the obligation for the bank to partially honour the cheque after deduction of the full amount available to the beneficiary, and the granting to returned cheques the power of a writ of execution directly enforceable by the enforcement judge in court by affixing the enforcement formula to the bounced cheqye and the collection of its value without having to resort to legal proceedings, whether civil or criminal, as well as the means for preventing the criminal case and facilitating its proceedings, attaching equal importance to conciliation and the payment of the value of the cheque as a basis for the termination of the criminal case or the suspension of the execution of the sentence handed down.
This is conducive to achieving a balance between the interest of the payee in asserting his/her right as soon as possible and the interest of the “issuer of the cheque” in the end of the criminal proceedings against him/her at the time of payment. It will also increase confidence in cheques as a commercial security allowing immediate payment of its value.
On the other hand, the speakers at the workshop explained that Article 4 of the decree specifies that the law will come into force on 2 January 2022 and that Article 3 provides for the annulment of Articles 401, 402, 403 of Federal Law No. 3 of 1987 promulgating the Penal Code. In this context, the participants discussed the established rule of “most favourable law for the accused”, stating that the applicable law is applied from the date of its promulgation without waiting for the prescribed date of entry into force.
This rule is applied in many court decisions that go in this direction. However, most participants agreed that the application of this rule could lead to the loss of the rights of the parties to the conflict and the loss of confidence in the investment market, which the Legislator tried to avoid by adopting a transitional phase for the entry into force of the new amendments so that the criminal protection of cheques does not cease before the implementation of the mechanisms specified in the Decree and which give the cheque the power of a writ of execution.