Kuwait Court of Cassation principle number 155

Summary: - Criminal courts are of 2 levels: the court of first instance and the court of appeal. The avenues for challenging criminal judgments are opposition and appeal. - Cassation is an extraordinary avenue for challenging criminal judgments. It was introduced by Law 40 of 1972 concerning the Cases and Procedures of Cassation Appeals. Its procedures differ from ordinary avenues of appeal. - Ruling an appeal inadmissible. Its cases. Articles 202 and 206 of the Criminal Procedure and Trials Law. - Ruling an appeal inadmissible for a reason relating to the standing of the person filing it may occur only where standing is nonexistent. The nonexistence of standing—in a legal act—differs from forms of invalidity arising from a defect in the legal act without reaching the point of affecting the existence of that act. - The distinction between nonexistence and invalidity derives from the difference between lack of existence and lack of validity. The consequence of lack of existence is nonexistence, and the consequence of lack of validity is invalidity. - Insufficiency of establishing the standing of the person who lodged the appeal on behalf of the convicted person and verifying the validity of the power of attorney. Its necessary consequence: the court must ask the appellant or his lawyer to produce the required power of attorney for its examination, or allow him time until a subsequent hearing to produce it—as is the practice of the Court of Cassation. If the case has been reserved for judgment, it must reopen oral proceedings for production of this power of attorney if it considers that it needs to examine it and verify its validity. This differs from filing an appeal out of time. Its meaning: the court is not obliged to alert the accused or require him to provide an excuse for exceeding the time limit. The appellate court’s failure to observe this: an error in the application of the law. Rule: Article 3 of the Criminal Procedure and Trials Law provides that criminal courts are of 2 levels: courts of first instance and appellate courts. Chapter 2 of Part 4, concerning judgments, their effects, challenges to them and their enforcement, also provides that the avenues for challenging criminal judgments are opposition and appeal. Law No. 40 of 1972 concerning the Cases and Procedures of Cassation Appeals, and Law No. 73 of 2003 adding Article 200 bis to the Criminal Procedure and Trials Law, then introduced another avenue for challenging criminal judgments, namely an appeal by way of cassation. This is an extraordinary avenue for challenging judgments rendered in criminal matters. Accordingly, Articles 9 to 12 of the aforementioned Law—and the settled jurisprudence of the Court of Cassation—prescribe specific requirements and procedures that must be observed for a cassation appeal to be admissible in form. These differ from those required by the Criminal Procedure and Trials Law for ordinary avenues of appeal. The latter Law sets out the manner of challenging a criminal judgment rendered by a court of first instance, providing in Article 202 that: "An appeal shall be filed by a petition submitted to the registry of the court that rendered the judgment. The petition shall be signed by the appealing party or his representative. If the accused is imprisoned, he shall submit his appeal through the prison warden." The aforementioned Law also specifies the consequence of failing to follow these procedures, providing in Article 206 that: "The court shall rule the appeal inadmissible if filed after the time limit, if the standing of the person filing it is nonexistent, or for any other substantial formal defect." That being so, it is apparent from the express wording of the aforementioned article that the court must not rule an appeal inadmissible for a reason relating to the standing of the person filing it except where that standing is nonexistent. It is established that nonexistence of standing to file an appeal—as with other legal acts—is the absence of standing. This differs from other forms of invalidity arising from a defect in the legal act without reaching the point of affecting the existence of that act. The distinction between nonexistence and invalidity derives from the difference between lack of existence and lack of validity: the manifestation of lack of existence is nonexistence, and the consequence of lack of validity is invalidity. That being so, examination of the appeal petition in the present case establishes that lawyer ................. appeared on 29/12/2010 before the competent clerk at the Court of First Instance, in his capacity as representative of the accused ................ under power of attorney No. 6132, volume H, and declared that he was filing an appeal against the judgment rendered against the aforementioned accused. He signed the appeal petition in that capacity, specifying the number of that power of attorney in the petition and attaching a photocopy of it. Its recorded contents show that it was issued to the aforementioned lawyer by .......................... in her capacity as agent of the appellant ...................... under general official power of attorney No. 1316, volume 9, dated 14/3/2002, within the period prescribed for appeal. That being so, it appears—from the power of attorney under which the appeal was lodged and the statement recorded at its beginning by the competent notary that it was issued on the basis of power of attorney No. 1316, volume H, issued by the convicted person seeking to appeal, and also from the record of the concluding hearing on 14/12/2010 before the court of first instance, showing that the accused attended the hearing with his lawyer ................ who pleaded in his defence—that, when the aforementioned lawyer lodged the appeal on behalf of the appellant, his standing to lodge it existed and was established in the papers, and had a factual basis—represented by his attendance with the appellant at the first-instance trial hearings as his defence counsel—as well as a legal basis—as established by the notarised power of attorney under which the appeal was lodged and which was attached to the appeal petition. The standing of the person lodging the appeal—in this manner—was not nonexistent, as the challenged judgment concluded, upon which it based its ruling that the appeal was inadmissible for having been filed by a person without standing. If the appellate court nevertheless considered that—the power of attorney attached to the appeal petition and the appellant’s personal attendance, accompanied by the same lawyer who lodged the appeal, before the appellate court at the hearing on 6/4/2011 to defend him—were insufficient to establish the standing of the person who lodged the appeal, and wished to verify the validity and scope of power of attorney No. 1316, volume 9, it should have asked the appellant or his lawyer at the hearing to produce the required power of attorney, if either had it in his possession, for the court to examine, or allowed him time by adjourning the case to a subsequent hearing for him to produce it—as is the practice before the Court of Cassation in such a case. If, however, this became apparent to the appellate court only after it had reserved the case for judgment, it should have reopened oral proceedings so that this power of attorney, which it considered it needed to examine and verify, could be produced. This differs from filing an appeal after the time limit, regarding which the Court of Cassation’s settled jurisprudence is that the court is not obliged to alert the accused to that fact or require him to provide an excuse for exceeding that time limit. Since the appellate court did not do so, and instead inferred from the failure to attach this power of attorney that the standing of the lawyer lodging the appeal was nonexistent and ruled the appeal inadmissible in form for having been filed by a person without standing, it erred in applying the law. This led it not to address the merits of the appeal, thereby vitiating the challenged judgment and requiring its cassation.