Kuwait Court of Cassation principle number 116

Summary: - The time limit for an appeal in cassation begins on the date the judgment is pronounced. Article 9 of Law 40 of 1972 concerning the Cases and Procedures of Appeal in Cassation. The condition is that the convicted person knew of the hearing at which the judgment was issued. Or that his non-attendance was for an acceptable reason. - If he had no knowledge of the date of the hearing at which the judgment was issued in his absence, knowledge of the judgment may not be presumed against him, or that he knows, and he may not be held accountable on that basis. - The avenue of appeal remains open to him until he is served or learns of it through any official means. - Lack of knowledge due to non-service of notice of the hearing and the absence from the papers of anything indicating official knowledge of the pronouncement of that judgment before lodging the appeal in cassation and filing its grounds and his placement in prison to serve the sentence. Lodging the appeal and filing the grounds after the time limit. Both are deemed to have occurred within the legally prescribed time limit. - Failure to effect proper service of notice of the hearing fixed for consideration of the appeal lodged by the Public Prosecution. It vitiates the judgment and requires its cassation. Rule: Whereas the general rule is that the time limit for an appeal in cassation begins on the date the judgment is pronounced, as prescribed by Article Nine of Law No. 40 of 1972 concerning the Cases and Procedures of Appeal in Cassation, this applies—as established in the case law of the Court of Cassation—where the convicted person knew of the hearing at which the judgment was issued and his non-attendance was attributable to an acceptable reason. If, however, the convicted person had no knowledge of the hearing at which the judgment was issued in his absence, knowledge of the judgment may not properly be presumed against him, or that he knows, and he may not be held accountable on that basis. Rather, the avenue of appeal remains open to him until he is served or learns of it by any other official means, at which point the time limit for appeal begins for him. Whereas the judgment was issued on 4/6/2015 in the appellant's absence, and he did not lodge an appeal against it by way of cassation until 31/8/2015 and filed its grounds on 15/9/2015, exceeding in both respects the time limit specified by law, his appeal would, as a general rule, be formally inadmissible. However, since the appellant stated in the grounds of his appeal that he had not learned of the challenged judgment—before appealing it—because it was pronounced in his absence, and the papers establish that the appellant was not served with notice of the hearing at which the case was reserved for judgment, and the papers contain nothing indicating that he officially knew of the pronouncement of that judgment before lodging the appeal in cassation and filing its grounds in connection with his arrest on 28/8/2015 and his placement in prison to serve the sentence imposed upon him, his lodging of the appeal against it on 31/8/2015 and filing of its grounds on 15/9/2015 both occurred within the legally prescribed time limit, requiring that the appeal be accepted as to form. Whereas among the appellant's criticisms of the challenged judgment is that, in reversing the appealed judgment acquitting him of the offence of theft by scaling a barrier and ruling to convict him thereof, it was tainted with nullity and involved an infringement of the right of defence, because he was not properly served with notice of the hearing fixed for consideration of the appeal lodged against him by the Public Prosecution, which vitiates the judgment and requires its cassation.