Kuwait Court of Cassation principle number 108

Summary: - Cases of arrest. What they are. - Flagrante delicto. Its cases are exhaustively specified in the Code of Criminal Procedure and Trials, Article 43 and Articles 53 to 57. However, this requires the police officer to ascertain that the offence exists. How this is done. - The appellant's merely driving the car in which the second accused threw the bag in which the narcotic substances and psychotropic substance were found does not provide strong indications conclusively establishing, in themselves, his commission of or participation in the offence of possession of narcotic substances and a psychotropic substance or any other offence, and justifying his arrest by a police officer without authorisation from the investigating authority. Contravention thereof: entails the invalidity of the arrest and the consequent search and invalidates the evidence derived from them, requiring cassation of the challenged judgment. Rule: It is established that a person may not be arrested and searched, nor may his personal belongings deriving their inviolability be searched, without authorisation from the authority competent to investigate, where its grounds exist, except in cases of flagrante delicto and the other cases exhaustively specified in Article 43 and Articles 53 to 57 of the Code of Criminal Procedure and Trials. Flagrante delicto requires the police officer to ascertain the existence of the offence, either by witnessing it himself or by observing a trace or consequence thereof conclusively establishing its occurrence. The account of the incident addressed by the judgment in answering the plea does not constitute flagrante delicto in respect of the appellant. Moreover, the appellant's merely driving the car in which the second accused threw the bag in which the narcotic substances and psychotropic substance were found does not provide strong indications conclusively establishing, in themselves, his commission of or participation in the offence of possession of the seized narcotic substances and psychotropic substance or any other offence, which would justify his arrest by a police officer without authorisation from the investigating authority. The police officer's arrest of the appellant was therefore an unlawful procedure, the resulting search is void, and the evidence derived from both is consequently invalid, because what is founded upon a nullity is itself void. Since the challenged judgment departed from this view, it is defective in a manner requiring its cassation on this ground in respect of the appellant alone, but not the second accused, who was not a party to the appellate proceedings in which the challenged judgment was rendered.