The Right of the Accused to Legal Counsel for Defense

Constitutional and Statutory Framework

The presumption of innocence applies to the accused until a judgment is rendered establishing guilt. The Constitution and legislation of the United Arab Emirates have safeguarded the rights of the accused throughout proceedings, foremost among them being the right to legal assistance. Article 28 of the UAE Constitution provides that: «Penal liability is personal. An accused shall be presumed innocent until proven guilty in a legal and fair trial. The accused shall have the right to appoint a person capable of defending him during the trial. The law shall determine the instances in which the presence of an attorney for the accused is mandatory.» The legal profession is an independent, free profession that participates in achieving justice, upholding the rule of law, and guaranteeing defense rights by providing the arguments necessary for defense in criminal matters.

The Scope of Legal Representation by Procedural Stage

1. In the Inquiry and Evidence Gathering Stage (Before Judicial Police)

The evidence-gathering stage is conducted by judicial police officers prior to investigation and indictment. Since the authority for investigation and indictment lies with the Public Prosecution, an individual cannot insist on the presence of an attorney on the basis of formal investigation procedures. With no statutory provision explicitly permitting or prohibiting counsel attendance, the matter is left to the discretionary authority of the judicial police officer. However, justice considerations favor not preventing an attorney from attending, since the individual may lack procedural knowledge or the ability to prove innocence.

Article 48 of the Criminal Procedures Law provides that immediately upon arresting or apprehending the accused, and prior to taking his statements, the judicial police officer must inform him of the offense attributed to him and his right to remain silent; if the accused does not offer exculpatory statements, he must be referred to the competent Public Prosecution within 48 hours.

2. In the Investigation Stage (Before the Public Prosecution)

The accused has the right to legal counsel during prosecution investigations pursuant to Article 98 of the Criminal Procedures Law, which states: «The lawyer of the accused must be enabled to attend the interrogation and review case files, unless the member of the Public Prosecution deems otherwise in the interest of the investigation.» Legal representation during prosecution interrogations is optional for the accused in misdemeanors and felonies, and prosecutors must facilitate the lawyer's attendance unless the interest of the investigation requires otherwise.

3. In the Trial Stage (Before the Court)

The right to legal counsel during trial is a fundamental right whose violation entails nullity, as this stage determines the fate of the accused. In accordance with Article 28 of the Constitution, the accused may request legal counsel in all offenses. Legal assistance is mandatory in certain crimes under Article 4 of the Criminal Procedures Law: «Every defendant in a felony punishable by death or life imprisonment must have an attorney to defend him at trial; if the defendant does not appoint an attorney, the court shall appoint one at the state's expense.»

Judicial Precedents of the Federal Supreme Court

1. Public Order Nullity for Absence of Counsel in Mandatory Representation Cases

The absence of an attorney in mandatory statutory cases entails nullity relating to public order. The Federal Supreme Court ruled (Criminal Appeal No. 143 of 2012) that where trial and appellate records lacked defense counsel for defendants facing life imprisonment, and the appellate court failed to appoint counsel or invalidate the first-instance judgment pursuant to Article 4/1 of the Criminal Procedures Law, the judgment was tainted with absolute nullity, requiring reversal and remand.

2. Duty to Prevent Conflicts of Interest Between Co-Defendants

The defense attorney must safeguard the client's interests without conflict. The Federal Supreme Court established (Criminal Appeal No. 130 of 2020) that when interests conflict between co-defendants in a single felony, each defendant must have independent counsel with full freedom to defend him, especially when the statements of one constitute evidence against the other. Where a single attorney represents both co-defendants whose mutual statements were used for conviction, the judgment violates the law and must be quashed.