Kuwait Court of Cassation principle number 153

Summary: - A judge’s prior issuance of a judgment in the case before adjudication on its merits that does not reveal the direction of his opinion on the merits of the case. This is not a ground for his disqualification, and he may be among the members of the court considering and adjudicating the merits of the case. - Confining the ruling to setting aside the judgment under appeal and scheduling a hearing to consider its merits, in addition to rejecting the plea of unconstitutionality for lack of seriousness. A judgment that does not adjudicate the merits of the appeal and does not reveal a particular inclination on the merits of the case, and therefore is not a ground for disqualifying those who rendered it from considering the same appeal and adjudicating its merits. Rule: Article 173 of the Criminal Procedure and Trials Law, appearing in Chapter 1 of Part 4 concerning judgments, their effects, challenges to them and their enforcement, provides that: (The provisions of the Civil and Commercial Procedure Law shall apply in cases in which a judge is disqualified from considering the case, in cases in which a judge may be recused, and to the procedures followed for his recusal.). Article 102 of the Civil and Commercial Procedure Law provides in paragraph (f) that a judge shall be disqualified from considering the case and prohibited from hearing it: (If he has given an opinion or pleaded on behalf of a party in the case or written in it, even if this was before he entered the judiciary, or if he has previously considered it as a judge, expert or arbitrator, or has given testimony in it.). What is meant by a judge’s previous consideration of the case is that he previously rendered a dispositive judgment in it or an incidental judgment in part of it, or took a measure therein revealing his opinion or point of view, provided that all of this was in the same case between the same parties. However, a judge’s previous consideration of the same case and issuance of a judgment therein before adjudicating its merits that does not reveal the direction of his opinion on the merits of the case is not a ground for disqualification, and he may be among the members of the court considering and adjudicating the merits of the case. The common element of the matters listed in that article is the expression of a particular opinion or inclination; if this does not occur, disqualification does not arise. That being so, it appears from the papers that the judgment rendered by the Court of Appeal on 27/5/2013 was confined to setting aside the judgment under appeal and scheduling a hearing to consider its merits, in addition to rejecting the accused’s plea that Article 209 of the Criminal Procedure and Trials Law was unconstitutional, for lack of seriousness. This judgment did not adjudicate the merits of the appeal and did not reveal any particular inclination on the merits of the case, and therefore does not constitute a ground for disqualifying those who rendered this judgment from considering the same appeal and adjudicating its merits. What the appellant raises in this regard is thus without basis.