Kuwait Court of Cassation principle number 147

Summary: - Article 109 of the Code of Criminal Procedure and Trials. Its import. Offences for which initiating criminal proceedings requires a complaint are exhaustively listed. The reason. - Abduction of a female is among the offences for which instituting proceedings depends on submission of a complaint. This restriction concerns public order. Its import: it may be invoked at any stage of criminal proceedings. An example of invalidity of procedures initiating investigation into abduction of a female because no complaint was submitted by the victim’s natural guardian and no impediment excused him so as to permit the Public Prosecution to act in his place in this regard. - The natural guardian’s mere assertion of a civil claim on behalf of the victim against the accused at the trial hearing does not constitute a complaint. The reason: a civil claim constitutes a complaint only in the case of direct prosecution. - The challenged judgment’s discussion of the evidence on which the first-instance judgment relied in rejecting the plea that the criminal proceedings for abduction could not be heard because they were instituted otherwise than in the manner prescribed by law, and its expression of confidence in that evidence. The complaint in this regard is unsound. Rule: Article 109 of the Code of Criminal Procedure and Trials provides that criminal proceedings may not be instituted except upon a complaint by the victim in the following offences: first ..... second ..... third—the offence of abduction of females ... . If the victim is a minor, his lawful guardian may submit the complaint on his behalf; if that is not possible, the Public Prosecutor shall act in the guardian’s place in this regard. Its express wording and clear language indicate that offences for which initiating criminal proceedings requires a complaint are exhaustively listed for a purpose intended by the legislature: those offences affect the victim personally before affecting the public interest. The guardian may have decided not to institute proceedings to shield the female and avert harm to her reputation and that of her family arising from proceedings against the abductor and others learning of the offence. The legislature therefore considered it appropriate to leave to the female victim or her guardian—if she is a minor—the assessment of whether to institute criminal proceedings against the perpetrator. Making institution of criminal proceedings dependent on submission of a complaint by the victim under the aforementioned Article 109 is an exception to this principle, being a restriction on the investigative authority vested with original competence. It may therefore not be expansively construed or extended by analogy to other offences resembling those exhaustively listed in that provision. The offence constituting the first charge—abduction of a female—is among the offences exhaustively specified in the aforementioned Article 109 for which instituting proceedings depends on a complaint by the victim. This restriction concerns public order and may be invoked at any stage of criminal proceedings. That being so, inspection of the case papers shows that they contain no complaint from the victim’s natural guardian indicating his expressed wish to institute criminal proceedings against the respondent for the abduction offence constituting the first charge against him. Nor do they contain any impediment preventing the victim’s natural guardian from submitting a complaint that would justify saying that the Public Prosecution acted in the guardian’s place in this regard under Article 109 of the Code of Criminal Procedure and Trials. Consequently, the investigative authority may not undertake investigation of the first charge; otherwise, those procedures are tainted by absolute nullity, and the court must rule that the proceedings may not be heard because they were instituted otherwise than in the manner prescribed by law. Since the challenged judgment, as set out above, adhered to these legal propositions, the complaint against it in this regard is groundless. This is not undermined by what the Public Prosecution—the appellant—raised in its grounds of appeal, namely that criminal proceedings for abduction were instituted in the manner prescribed by Article 109 of the Code of Criminal Procedure and Trials, on the basis that the victim’s natural guardian’s mere assertion of a civil claim—through an agent—against the respondent at the trial hearing constitutes a complaint. This is rejected because the victim’s institution of a civil action before the criminal courts is regarded as a complaint only in the case of direct prosecution, which does not apply to the present proceedings under appeal. That being so, the challenged judgment evidently discussed at length—contrary to the appellant’s allegation—the evidence on which the first-instance judgment relied in rejecting the respondent’s plea that the criminal proceedings for abduction could not be heard because they were instituted otherwise than in the manner prescribed by law. It then expressed its lack of confidence in the contents of that evidence for the sound reasons it enumerated. Accordingly, what the appellant raises in this regard is, besides being incorrect, unsound.