Kuwait Court of Cassation principle number 17

Summary: - Article 14 of Law No. 3 of 1983 concerning Juveniles repealed Article 20 of the Penal Code. Its import. - The penalties of death or life imprisonment. Their imposition is prohibited upon a juvenile who has completed 15 but has not reached 18 years of age. Providing imprisonment without a minimum term as an alternative to them: the basis: the seriousness of felonies and adoption of the concept of social defence. - Making young age one of the statutory mitigating excuses exhaustively specified in the Law. Mandatory within the limits laid down by the legislature. Its distinction from the mitigating circumstances provided for in Article 83 of the amended Penal Code, which are discretionary. The reason. - The respondents being juveniles who had not completed 18 years of age—at the time of committing their offence—kidnapping by deception with intent to commit indecent assault—and considering it the more serious offence, and the challenged judgment’s imposition upon them of imprisonment for 1 year with labour. Correct application of the law. The reason. - A judge may not exceed the maximum provided for in Article 14 of the Juveniles Law, and may reduce the sentence to the minimum term of imprisonment. - The minimum term of imprisonment. 24 hours. Article 62 of the Penal Code. Rule: Whereas Article 14 of Law No. 3 of 1983 concerning Juveniles, which replaced Article (20) of the Penal Code, repealed by the said Juveniles Law, provides that: (1)- If a juvenile who has completed 15 but has not completed 18 years of age commits a felony punishable by death or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 perpetrators, 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 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 respondents are juveniles, none of whom had completed 18 years of age at the time of committing the offence, and the penalty prescribed for the offence of kidnapping by deception with intent to commit indecent assault, which the challenged judgment established that the respondents committed and for which it punished them as the offence bearing the more serious classification, after application of Article 14 of Law No. 3 of 1983 concerning Juveniles, quoted above, which must be applied to the respondents, is imprisonment for a term not exceeding 10 years, the challenged judgment, in sentencing each respondent to imprisonment for 1 year with labour, correctly applied the law. Although the judge may not exceed the maximum provided for in the aforementioned Article, he is entitled to reduce the sentence to the minimum prescribed in Article 62 of the Penal Code, which provides that imprisonment shall not be for less than 24 hours. The Public Prosecution’s criticism of the judgment in this regard is therefore incorrect.