Kuwait Court of Cassation principle number 128

Summary: - Offences for which the law requires a complaint to be submitted in order to institute criminal proceedings. They are exhaustively enumerated in Article 109 of the Code of Criminal Procedure and Trials. The offence of publishing an article liable to prejudice the victim’s dignity and the offence of authorizing publication of the article without verifying its accuracy. They are not among the offences for which the institution of criminal proceedings is conditional upon the victim submitting a complaint. The basis and effect thereof. - The established general rule is that the Public Prosecution, or whoever acts in its place in misdemeanour matters, holds the right to institute criminal proceedings. Submission of a complaint by the victim. An exception to this general rule. The effect thereof: the exception may not be expanded or applied by analogy to include similar offences. An example. - The plea that the action is inadmissible because it was brought against a person lacking proper capacity. A substantive plea. It may not be raised for the first time before the Court of Cassation. Rule: Article (25) of Law No. 3 of 2006 concerning Printing and Publication provides that: “Criminal proceedings concerning the offences prescribed in this Law shall lapse if the Public Prosecution is not notified of them within 3 months from the date of publication, and an action for compensation shall lapse if it is not brought within 1 year from the date of publication, unless criminal proceedings are pending, in which case the period for lapse shall begin from the date of their termination or the issuance of a final judgment therein.” It is apparent upon examination of the papers that the female victim’s lawyer submitted a complaint against each of ............ and ........... and notified the Public Prosecution of the incident within the prescribed period, namely 3 months from the date of publication. After the Public Prosecution conducted the investigation in the case, it ordered its referral to the competent court. The offence attributed to the appellant, namely that he published an article liable to prejudice the female victim’s dignity and harm them both—and to the other appellant, namely that he authorized publication of the article without verifying its accuracy—is not among the offences specified in Article (109) of the Code of Criminal Procedure and Trials for which the institution of criminal proceedings is conditional upon the victim submitting a complaint. Submission of a complaint is only an exception to the established general rule that the Public Prosecution—or whoever acts in its place in misdemeanour cases—holds the right to institute and conduct criminal proceedings pursuant to Articles 9 and 129 of the Code of Criminal Procedure and Trials and Article 53 of Decree-Law No. 23 of 1990 concerning the Organization of the Judiciary. Accordingly, it may not be expanded or applied by analogy to include offences similar to those exhaustively enumerated in Article 109 of the first Law. Law No. 3 of 2006 concerning Printing and Publication contains no restriction upon the Public Prosecution’s authority to institute criminal proceedings for the offence of which each of the appellants was convicted, so long as it was notified thereof within the period prescribed in Article (25) thereof. On the other hand, it is apparent upon examination of the hearing minutes before the trial court at both levels that the appellant raised nothing concerning his real name, his alias, or the inadmissibility of the action because it was brought against a person lacking proper capacity. Consequently, he may not thereafter raise this for the first time before the Court of Cassation. In addition, the indictment included the appellant’s name/ ......... and his alias ............—contrary to what he claims in his grounds of appeal. His criticism alleging infringement of the right of defence in this regard is therefore inadmissible.