Kuwait Court of Cassation principle number 111

Summary: - Limitation of the action. Procedural in nature and related to public order. Reason: it serves the public interest, not a personal interest. Effect: its provisions must apply with immediate effect from their effective date to offenses predating their issuance, even if this worsens the accused's position, so long as no final judgment has been issued in the case. No scope for applying the rules of the more favorable law. Reason: Article 15 of the Penal Code applies only to substantive matters, not procedures, because it concerns only provisions connected with the offense and the prescription or amendment of punishment. Consequence: the law applicable to limitation is the law in force when the limitation period is completed. Effect: if the limitation period is completed—under the law in force at that time—the criminal action is extinguished. If the new law amends the limitation provisions, it applies to every limitation period not yet completed, whether this benefits or prejudices the accused. - The criminal action for offenses prescribed in Law No. 1 of 1993 concerning the Protection of Public Funds is not extinguished—Article 21 bis of the same Law. The periods for lapse of the action or the sentence imposed, prescribed in Articles 4 and 6 of the Penal Code, do not apply to it. Reason: protecting public funds and denying the accused the opportunity to benefit from those provisions. - What matters is the last investigative procedure. An objection alleging invalidity of previous investigations does not undermine this. Reason: the Public Prosecution has jurisdiction to investigate and dispose of the incident. Effect: the ordinary courts' jurisdiction to try the appellant and the convicted person remains valid and effective. - Example of a response to a plea that the criminal action has lapsed by limitation. Rule: This court—the Court of Cassation—accepts the procedural nature of provisions concerning limitation of the action. The statutory provisions concerning limitation relate to public order because they serve the public interest, not a personal interest, requiring their application with immediate effect from their effective date to offenses predating their issuance, even if this worsens the accused's position, so long as no final judgment has been issued in the case. There is no scope in this regard for applying the exception of the more favorable law, because Article Fifteen of the Penal Code applies only to substantive matters, not procedures; it concerns only provisions connected with criminalization and the prescription or amendment of punishment. This means that the law applicable to limitation is the law in force when the limitation period is completed. Consequently, if the limitation period is completed under the law in force at that time, the action is thereby extinguished. If the new law amends the limitation provisions, that law applies to every limitation period not yet completed, whether this benefits or prejudices the accused. The legislature introduced an amendment through Article 21 bis of Law No. 1 of 1993 concerning the Protection of Public Funds, added by Law No. 31 of 2004 issued on 27/6/2004, providing that the criminal action for offenses prescribed in that Law is not extinguished by passage of time and that the periods for lapse of the criminal action or the sentence imposed, specified in Articles 4 and 6 of the Penal Code, do not apply to it. The explanatory memorandum to that Law confirmed this by stating that the legislature's purpose in adding that article was to protect public funds and deny the accused in such cases the opportunity to benefit from the penal provisions prescribing extinguishment of criminal actions or lapse of the sentence imposed through passage of time. The first-instance judgment, whose reasons were adopted, supplemented, and amended by the challenged judgment, addressed the plea of extinguishment of the criminal action by passage of time and rejected it on the basis that the procedures interrupting limitation began from the date of termination of the appellant's service on 1 June 1992, preceding the Public Prosecution's commencement of the first investigative procedures on 7 January 1993 by questioning the first prosecution witness and issuing its decisions to arrest and bring in the four accused, freeze their funds and balances, prohibit them from traveling, and hear all witness statements as well as the statements of the second accused—the appellant—who was confronted with the charges against him. On 28 February 1998, the Public Prosecutor ordered referral of the appellant and the remaining convicted persons to the Felony Court. The judgment took this procedure into account as interrupting the period for lapse of the criminal action. That being so, although the incident in dispute arose before the addition of the aforementioned Article 21 to the Law on the Protection of Public Funds, the limitation period necessary to extinguish the criminal action—under the laws applicable to the incident at that time—had not yet been completed, reckoned from the date of the last procedure interrupting limitation, namely the indictment issued on 28/2/1998, until the aforementioned article entered into force and its requirements were applied on 27/6/2004. This provision therefore becomes enforceable and applicable to the facts of the case with immediate effect because it relates to public order. Accordingly, the periods for lapse of the criminal action must not apply to the offenses charged against the appellant and the remaining convicted persons. The conclusion reached by the judgment in responding to the plea accords with the legal basis set out and adopted by this court—the Court of Cassation—and the appellant's objection in this regard is unfounded. This is not undermined by the appellant's assertion that the investigation, accusation, and trial procedures undertaken by the Public Prosecution before 30/7/2007, the date of closing the investigation concerning the former minister ..........., were invalid. In rejecting that assertion, the judgment stated in its reasoning that the complaint submitted by the chairman of the victim company's board of directors, dated 7 January 1993, to the Public Prosecutor requesting investigation of certain financial irregularities did not name any minister or particular accused. The report dated 29 May 2001 against the minister, referred to the investigation committee responsible for trying ministers, also came after the referral of the appellant and the convicted persons to the Felony Court by the indictment dated 28 February 1998, on the basis that the Public Prosecution had original jurisdiction in its assessment that the evidence against the appellant and the convicted persons concerning these incidents was sufficient. Moreover, the judgment concluded that the alleged connection between the charges against the appellant and the remaining convicted persons and those against the minister was absent after the investigation committee responsible for trying ministers closed the investigation on 30/10/2007 into the suspicions raised against former Minister of Oil ............. for insufficiency of evidence. Accordingly, the Public Prosecution's jurisdiction to investigate and dispose of the incident, and thereafter the ordinary courts' jurisdiction to try the appellant and the female convicted person, remains valid and effective. The appellant's contention in this regard is therefore incorrect.