Kuwait Court of Cassation principle number 100

Summary: - Conviction of the appellant on the charge of assaulting a public official and resisting him by force during and because of their duties under Article 116 of the Penal Code, repealed by Law 31 of 1970 amending certain provisions of the Penal Code. What he committed constitutes the misdemeanor of resisting police officers during and because of the performance of their duties. Consequence: a violation of law requiring correction in the appellant’s favor. - Correction being futile because the challenged judgment imposed no separate penalty owing to the indivisible connection between the offenses. Correction and the complaint are futile. Rule: The challenged judgment convicted the appellant of the second charge in the indictment, namely assaulting public officials who were police officers and resisting the two of them by force during and because of the performance of their duties, with the intention of preventing them from performing an act of their office, as provided for in Article 116 of the Penal Code, which had stated: (Whoever uses force, violence, or threats against a public official and thereby obtains from him something to which he is not entitled or his avoidance of the performance of an act of his office shall be punished with the penalties prescribed for bribery). This was despite that Article having been repealed by Law No. 31 of 1970 amending certain provisions of the Penal Code, and despite the appellant’s conduct in fact constituting resistance to police officers during and because of the performance of their duties, a misdemeanor criminalized by Article 135/1 -2 of the Penal Code, as amended by Decree-Law No. 59 of 1999. Accordingly, the challenged judgment violated the law, permitting the Court of Cassation to correct the error into which it fell—in the appellant’s favor. However, this Court considers that making this correction would be futile, because the judgment imposed no separate penalty for it, owing to the indivisible connection of that offense and the offense forming the third charge with the felony of possessing a firearm without a license, forming the first charge and carrying the severest penalty. The judgment applied the rules governing connected offenses by applying Article 84/1 of the Penal Code to the appellant and imposed upon him only the penalty prescribed for the most serious offense attributed to him, forming the first charge, which the judgment established as proven and was free of the defect alleged by the appellant in its respect. Accordingly, what is raised concerning the latter two offenses is futile.