The murder of Misri Khan gained worldwide attention in 2009 as 17 men were found guilty of the crime. They were convicted and sentenced to capital punishment i.e, death row in the UAE. After spending at least three years in jail, they were released after paying a total of $1 million as blood money to the Victim’s family.
According to Islamic law, Diya, or blood money, is the financial indemnity paid to a victim or the Victim’s family to compensate for death, bodily damage, or property damage. It is an alternative solution to Qisas, which means retribution, or ‘eye for an eye’ under Sharia’a law, applying qisas or Diya is at the discretion of the Victim’s family. Diya plays a vital role in the legal system of UAE as the Nation is governed based on Sharia’a law.
Diya has its origins in the Qur’an as it mentions in verse 92 that “whoever kills a believer by mistake, it is ordained that he must set free a believing slave and a compensation (blood money) be given to the deceased’s family unless they remit it.”
Similar to other legal systems, a person is viewed as innocent until proven guilty in Sharia’a law and holds both the claimant and the defendant as equal before the law. It is pertinent for the claimant to provide proof of guilt and produce two to four witnesses depending on the crime’s significance.
If the claimant is unable to provide witnesses, an oath swearing may take place for the defendant to prove his innocence.
If he refuses, then the Court can pronounce him as guilty, as perjury under Sharia’a law is a grave sin. It is significant to note that the family’s Victim will not be entitled to claim for compensation if the death that occurs was an ‘Act of God’. For example, if the Victim perishes during an airplane crash and it is proved that it was caused by an Act of God instead of negligence from the side of the airplane company, then no Diya is required to be paid from the company.
Diya in UAE Under UAE laws, Diya for human life is set at AED 200,000 for both men and women. Compensations called Arsh is the loss of one’s organs, limbs, or loss of function of a body part. Payments done are based on a pre-determined amount, including the percentage of disability determined by a team of medical investigators. After acquiring a percentage, it is then calculated as a share of AED 200,000 Diya. An example scenario can be if the medical investigation team discovers that a person had suffered from a 50% disability percentage, he will receive AED 100,000 Diya. In instances that include bodily harm, such as the loss of both limbs, the Court will consider it as deserving the full Diya amount.
Federal Law Number 3 of 1987, or The UAE Penal Code contains a provision in the law and separates ‘intentional killing’ and ‘unintentional killing’. Article 28 of the law provides that intentional killing crimes will be punished by Qisas, which in the UAE includes capital punishment (death penalty), life imprisonment, or temporary imprisonment.
Similarly, Article 29 has defined the punishments for an unintentional killing by classifying it as a misdemeanor and stipulating that in situations where the Court can award Diya as punishment according to Article 29(3). Other misdemeanor punishments mentioned in 29 are a fine exceeding AED 1,000 or temporary incarceration. Additionally, the family of the Victim is entitled to receive compensation relating to the moral, physical and psychological damage, whether tangible or intangible, that they incur due to the wrongful death.
Federal Law Number 5 of 1985, also called the UAE Civil Transaction Law, has specified the pre-condition elements required to file a tortious claim under Article 383. Their conditions are:
According to the tort principle, every element must be satisfied in order to have a successful tortious claim under gross negligence. If such damages were proved, and the pre-conditions are successfully met, then the damages an individual would incur will be between AED 50,000 to AED 500,000.
Pursuant to the UAE Civil Code, Article 292 states that all compensation shall be assessed based on the amount of harm suffered by the Victim, along with loss of profit so long as it is the natural result of the harmful act. It is important to note that Diya has a limitation period as stated in the UAE Civil Code under Article 298. As per the Code, it has mentioned that there can be no claim of compensation regarding breach of duty resulting from a harmful act that will be heard after 3 years from the day which the Victim has become aware of the harm and the identity of the person that was responsible for it. The law has further stated that no claim of compensation will be heard after 15 years from the day in which the harmful act has taken place concerning breach of contract as stated in Article 296. Limitations for breach of care will apply to medical malpractice claims.
In 2019, the UAE courts convicted two Asian doctors for a child’s death under their medical care who has died due to medical error after undergoing surgery. The courts have issued a judgment ordering the doctors to pay a fine of AED 40,000, including a Diya of AED 200,000.
A child suffering from a breathing problem was taken to a hospital for treatment and underwent surgery. Based on the Public Prosecutor’s findings during the investigation, doctor A, an anesthesiologist, has failed to properly diagnose the child’s low oxygen levels in his blood and insisted that the child was stable. This resulted in the transfer of the child to the pediatric ward with no oxygen. Meanwhile, Doctor B has further neglected to check the oxygen percentage of the child’s blood and intubated him prior to leaving the recovery room. The Prosecution report has resulted in both doctors failing to provide adequate oxygen before discharging the child, which led to his rapid deterioration and, eventually, his death.
This case can be categorized as a medical malpractice case under Federal Law Number 4 of 2016.
Article 3 of the law states that any person who practices the profession must perform their duties with a level of accuracy and honesty that will guarantee the patients’ due care.
Article 14 also defines medical malpractice by stating that any medical error is made by the medical practitioner due to:
(a) ignorance of technical issues that every medical professional must be aware of,
(b)failure to comply with the professional and medical standards,
(c) failure to act within the necessary due diligence, and
(d) negligence and failure to act carefully and with precaution.
The law also provides under Article 34 that any medical professional who commits a medical error that resulted in the patient’s death will incur a fine of up to AED 500,00, including term incarceration of up to two years.
Article 1 of the Penal Code mentions that Sharia’a Law must apply to crimes that require the payment of Diya. The punishment terms mentioned in Article 29 may be applied accordingly.
For a more detailed explanation regarding Diya, our legal experts at Fotis, are always available for your service.