Kuwait Court of Cassation principle number 16

Summary: - A juvenile who has passed 15 and has not completed 18 years of age. He may not be sentenced to death or life imprisonment. The basis: the seriousness of felonies or adoption of the concept of social defence. Article 14 of Law 3 of 1983 concerning Juveniles. - A judge may not exceed the maximum term of imprisonment imposed upon a juvenile. - Young age is one of the mandatory statutory mitigating excuses. It differs from the mitigating circumstances set out in Article 83 of the Penal Code, which permit the judge to assess their existence or absence when determining the penalty. - An example concerning the imposition of imprisonment upon a juvenile for the offence of forcible indecent assault. Rule: Whereas Article 14 of Law No. 3 of 1983 concerning Juveniles—which replaced Article 20 of the Penal Code, repealed by the said Juveniles Law—provides that: a- If a juvenile who has completed 15 but has not completed 18 years of age commits a felony punishable by death or life imprisonment, the judge shall sentence him to imprisonment for a term not exceeding 10 years. b- If the juvenile commits an offence punishable by fixed-term imprisonment, the judge shall sentence him to imprisonment for a term not exceeding half the maximum prescribed by law. c- A juvenile shall not be punished by a fine, whether or not that penalty is accompanied by imprisonment, except in an amount not exceeding half the maximum fine prescribed for the offence committed by the juvenile.” The import of this Article—which appears in Part Two of the Juveniles Law concerning measures and penalties—and of the explanatory memorandum to that Law regarding this Article, and as established in this Court’s case law, is that the legislature, in view of the seriousness of felonies and adopting the concept of social defence, did not permit a juvenile—who has completed 15 but has not completed 18 years of age—to be sentenced to death or life imprisonment. The legislature set maximum terms of imprisonment that may be imposed upon a juvenile, which the judge may not exceed, without the Law prescribing a minimum term. Thus, the legislature made young age one of the statutory mitigating excuses exhaustively specified in the Law, for which mitigation is mandatory within the limits set out in the provision. These differ from the mitigating circumstances referred to in Article 83 of the Penal Code—as amended by Law No. 62 of 1976—the existence or absence of which the judge is permitted to assess when imposing the penalty according to what becomes apparent to him of the circumstances of the offence and its perpetrator, provided that, when applying grounds for leniency, he observes the minimum limits specified in the said Article. To hold otherwise—as argued by the appellant Public Prosecution—would defeat the purpose sought by the legislature in regulating the juvenile offender’s criminal responsibility according to his age at the time of committing the offence, and the corrective measures and mitigated penalties specifically provided for him, consistent with the extent of his discernment giving rise to criminal responsibility, as clearly indicated in the Law’s explanatory memorandum as explained above. That being so, and whereas the papers establish that the respondent is a “juvenile” who had not completed 18 years of age at the time of committing the offence, the penalty prescribed in the first paragraph of Article 191 of the Penal Code for the offence of forcible indecent assault, which the challenged judgment established that the respondent committed—after application of Article 14 of Law No. 3 of 1983 concerning Juveniles, quoted above, which must be applied to the latter—is imprisonment for 7 and a half years as the maximum that must not be exceeded.