Necessity coercion prohibitions criminal liability – UAE Penal Code the criminal liability takes place on the person who done forbidden act, and aware that the act he committed is forbidden , and he committed the act by his own free will , therefore criminal responsibility doesn’t take place on necessity and coercion cases ,the state of necessity and coercion can be defined as: it is an external circumstance involving threats and dangers that afflicts the person and forcing him to commit the criminal act in order to protect himself or his money or to protect other person WhatsApp: +971555570005
Necessity and coercion and the prohibitions of criminal liability – UAE Penal Code
the criminal liability takes place on the person who done forbidden act, and aware that the act he committed is forbidden , and he committed the act by his own free will , therefore criminal responsibility doesn’t take place on necessity and coercion cases ,the state of necessity and coercion can be defined as: it is an external circumstance involving threats and dangers that afflicts the person and forcing him to commit the criminal act in order to protect himself or his money or to protect other person , the state of necessity requires that the defendant must be unable to push the danger unless he committed the unlawful act and for example : the doctor who done fragile birth operation compelled him to sacrifice the baby in order to preserve the life of the mother , or the person who running out from a building on fire and bump into other person causing to him harm , or the person who steal bread in order to keep his life from starving to death .
In Islamic jurisprudence examples for eliminate the criminal liability in case of necessity and coercion as: Allah lifted the mandatory fasting on Ramadan from the patient and the traveler, and Allah didn’t obligate the poor with the religious duty of the hajj. and al-Khalifa Omar Bin Al-Khattab didn’t cut the thief’s hand during the year of starvation.
the state of necessity and coercion stated in article 64 of Arab united emirates penal code which provided that:
Criminal liability shall not be held against whoever perpetrate a crime under necessary of protecting, his person or property or the person or property of others, from a serious and imminent danger which occurrence is beyond his own volition. Likewise, shall not be criminally liable who perpetrates a crime under physical or moral duress.
In the two instances mentioned in the two preceding paragraph, the perpetrator of a crime must be in the impossibility of avoiding the danger by other means and provided the crime is proportionate and to the extent necessary to repel it.
According to the mentioned above article we could determine the conditions that must exist in the situation or condition to be consider as state of necessity and coercion and these conditions are:
• The existence of danger which afflicts the person life or money:
The imminent danger is the danger that we cannot be reformed and amended such as death, or permanent disability, or malformations , but the minor risks does not considered as state of necessity such as wounds or simple material losses , in other word , imminent danger is the danger that cannot be reformed or treat its results , and the meaning of his person is all the rights involving human being such as life , body , freedom and honor , but the money includes all the financial rights that is economically valuable and fall into the transactions circle .
• The danger must be imminent:
The danger is certain, if there was no alternative means of preventing its materialization and if it was about to happen, or happened but it was not over yet. and the danger is uncertain when it occurred and done or when its occurrence was anticipated and in this case there is a room of time to take caution without committing the crime.
• The absence of prior knowledge of the danger and the absence of the offender’s intention to commit the danger:
The state of necessity required the existence of the element of surprise that effect the freedom of choice, as it doesn’t leave to the defendant a room of time to handle the situation to get away from the danger.
If the defendant’s intention was to commit the danger, so he predicted the danger and he supposed to avoid the risk in a way that don’t hurt others in their person or their money, for example, the person who drown a ship intentionally, then be forced to save himself by pushing out someone else from the ship, this case is not a state of necessity.
• The inability to push the danger away by other means:
The state of necessity doesn’t composed unless the necessary crime was the only method to prevent the person from a serious danger, and the defendant didn’t have any other legal way to repel the danger, if it was possible to repel the danger by wounding or beating, the defendant cannot repel the danger by taking a life. for example, the medical student who performs a surgery to a patient and he was able to transfer him to the hospital or to a specialist doctor.
• The act must be proportionate to the danger:
The defendant must not commit an exaggerated action to repel the danger, in this case the state of necessity shall not be applied, so anyone who can repel the danger in crimes against money and in order to do so he commits a crime against person, in this case requirement of proportionality doesn’t exist so he will be asked about this violation. For example, the captain who could save the passengers of the ship by throwing a part of the goods but instead of that he throws some of the passengers, in this case state of necessity doesn’t exist and he will be asked about this violation.
Therefore, we have stated the required conditions for the existence of the state of necessity and coercion and if the state of necessity and coercion exists, the criminal responsibility falls off, and it is clear from the above that the Emirati legislator intended to Release the defendant from the criminal responsibility but he stated certain condition to consider the case as state of necessity therefore it is clear that the legislator is objective and rational in the determination of the circumstances of the crime and the limits on the defendant freewill and choice .
Attorney / Mohamed Al Marzooqi
Mohamed Al Marzooqi Advocates & Consultancy
Lawyer in Abu Dhabi, Dubai – UAE
